Oregon Department of Environmental Quality

December 18, 2013

Notice of Proposed Rulemaking

Incorporate Lane Regional Air Protection Agency Rules for

open burning into State Implementation Plan

Short summary 

DEQ proposes to incorporate Lane Regional Air Protection Agency revised regulations for open burning into Oregon’s State Implementation Plan in Oregon Administrative Rule 340-200-0040. The LRAPA Board of Directors adopted open burning rules revisions in an effort to meet federal air quality standards for fine particulate matter, to bring LRAPA in line with state rules and to better coordinate with state and federal requirements. The LRAPA rules were revised to:

•  Clarify when and where small recreational fires such as patio fireplace could occur and identify acceptable fuels for these fires,

•  Include Hazeldell and Siuslaw Rural Fire Protection Districts in the special open-burning control area at the districts’ request,

•  Allow daily end time on burn days to be set earlier than sunset,

•  Restrict the open burning season in the outlying areas of Lane County, and

•  Correct the meaning of the LRAPA acronym to Lane Regional Air Protection Agency.

Brief history

LRAPA, in consultation with DEQ and the U.S. Environmental Protection Agency, is responsible for ensuring that Lane County communities comply with federal air quality health standards, including enacting plans to restore healthy air quality in any area violating standards. LRAPA conducts air monitoring, permitting and compliance, inspection and enforcement, and regulates open burning and asbestos abatement throughout Lane County. It also has a woodstove advisory program, an open burning advisory program and conducts special projects focused on air quality. The agency is funded by local dues from Lane County and the cities of Lane County, industrial and other permitting fees, and LRAPA coordinates with DEQ to obtain EPA funding and state general funds.

On March 14, 2008, the LRAPA Board of Directors adopted the Title 47 open burning rules, provided at the end of this document, and the rules have been in effect in Lane County since their adoption. The Environmental Quality Commission and DEQ have oversight authority to ensure LRAPA meets Clean Air Act requirements. The State Implementation Plan is the State of Oregon Clean Air Act Implementation Plan as adopted by EQC under OAR 340-200-0040 and approved by EPA. EQC’s role is to review LRAPA rules to determine if they comply with state law and the Clean Air Act, approve those rules if they comply, and direct DEQ to submit the approved rules to EPA for federal approval as State Implementation Plan amendments.

Typically, DEQ submits LRAPA rules to EQC for incorporation into the State Implementation Plan immediately upon adoption by the LRAPA board. However, in this case, DEQ determined that the public notice process held jointly by DEQ and LRAPA several years ago did not meet requirements for State Implementation Plan rules, which are above and beyond requirements for normal rulemaking. Performing rulemaking is resource intensive and DEQ was unable to perform the additional public notice requirements until now.

Regulated parties

This proposal does not change the regulated parties or requirements for regulated parties from the rules that LRAPA’s board adopted in 2008. The 2008 rules affect residential open burning in Lane County.

What need is DEQ trying to address?

For LRAPA and the state to maintain compliance with the Clean Air Act, EQC must review LRAPA’s rules and, if EQC concludes that the rules comply with state law and the Clean Air Act, approve the rules and direct DEQ to submit them to EPA for approval and incorporation, as appropriate, into the federally-approved State Implementation Plan. The State Implementation Plan does not contain the rules provided at the end of this document, which were adopted by the LRAPA Board of Director’s in 2008. LRAPA adopted changes to its Title 47 open burning rules in an effort to meet federal particulate standards for PM2.5.

Lane County records the highest levels of PM2.5 from November through February. LRAPA adopted changes to its Title 47 open burning rules to prohibit all open burning within the Eugene-Springfield maintenance area during this period to reduce the potential that areas of Lane County could exceed federal particulate standards for PM2.5. LRAPA’s old open burning rules did not adequately address small recreational fires or accommodate the Hazeldell and Siuslaw Rural Fire Protection Districts request to be included in the special open-burning control area. Some definitions were not clear or no longer met the current conditions.

Open burning and backyard burning are major sources of air pollution complaints that LRAPA receives and result in a significant portion of the monthly LRAPA enforcement cases. Open burning complaints were consistently less than 100 per year during 1990-2000 and steadily increased to an average of over 300 per year during 2007-2008.

How would the proposed rule address the need?

LRAPA’s open burning rules provide a consistent basis for complaint response and help prevent public nuisances and violations of PM2.5 National Ambient Air Quality Standards in Lane County.

How will DEQ know the need has been addressed?

The open burning control program will continue to require LRAPA’s diligent implementation to minimize air pollution impacts and nuisances. Indicators of the success of this program will be attainment and maintenance of PM10 and PM2.5 air quality health standards, reduced impacts of residential open burning on neighbors and fewer public complaints.

If EQC adopts the proposed rule, DEQ would submit the rule to EPA to update the federally-approved State Implementation Plan. DEQ will know the goals of this rulemaking have been addressed when EPA reviews and approves the changes to the State Implementation Plan.

Request for other options

During the public comment period, DEQ requests public comment on whether to consider other options for achieving the rule's substantive goals while reducing negative economic impact of the rule on business.

Lead division            Program or activity

Air Quality Division        State Implementation Plan

Chapter 340 action

Statutory authority

ORS 468.020, 468A.035, 468A.135

Other authority

 LRAPA Title 13 General Duties and Powers of Board and Director

LRAPA Title 14 Rules of Practice and Procedure

Statute implemented  Legislation

ORS 468 and 468A

Documents relied on for rulemaking  ORS 183.335(2)(b)(C)

Fee Analysis

This rulemaking does not involve fees.

Fiscal and Economic Impact

The proposed rule has no significant fiscal or economic impact. This proposal involves minor clarifications and updates that primarily affect residential open burning in Lane County.

In 2008, LRAPA’s original analysis determined that the rule amendments have no significant fiscal or economic impact. In 2013, DEQ in consultation with LRAPA reevaluated the proposed rule and DEQ determined LRAPA’s original analysis is reasonable and still correct considering events that have occurred since 2008.

Statement of Cost of Compliance  

   Impacts on public

There is no significant fiscal or economic impact on the general public.

Impact on other government entities other than DEQ

a.  Local governments  No significant impact, including LRAPA

b.  State agencies    No significant impact

Impact on DEQ ORS 183.335

There is no significant fiscal or economic impact on DEQ.

Impact on large businesses (all businesses that are not small businesses below)

This proposal primarily affects residential open burning in Lane County and would have no significant fiscal or economic impact on large businesses.

Impact on small businesses (those with 50 or fewer employees) ORS 183.336

This proposal primarily affects residential open burning in Lane County and would have no significant fiscal or economic impact on small businesses.

Documents relied on for fiscal and economic impact

Advisory committee

DEQ did not appoint an advisory committee. LRAPA followed appropriate requirements for rulemaking when it adopted its rules.

Housing cost

To comply with ORS 183.534, DEQ determined the proposed rule would have no effect on the development cost of a 6,000-square-foot parcel and construction of a 1,200-square-foot detached, single-family dwelling on that parcel. Adoption of DEQ’s rules would provide for DEQ to submit LRAPA’s rules to EPA for incorporation into the State Implementation Plan. Any affects of LRAPA’s rules on residential open burning occurred when LRAPA adopted the rules, and the rules applied in Lane County upon LRAPA’s adoption.

Federal relationship

"It is the policy of this state that agencies shall seek to retain and promote the unique identity of Oregon by considering local conditions when an agency adopts policies and rules. However, since there are many federal laws and regulations that apply to activities that are also regulated by the state, it is also the policy of this state that agencies attempt to adopt rules that correspond with equivalent federal laws and rules..." ORS 183.332

Relationship to federal requirements

This section complies with OAR 340-011-0029 and ORS 468A.327 to clearly identify the relationship between the proposed rule and applicable federal requirements.

     The proposed rule is “in addition to federal requirements.”

The 2008 LRAPA rules help to reduce the potential that areas of Lane County could exceed federal particulate standards for PM2.5. There are no federal rules applicable to open burning. LRAPA’s 2008 open burning rules are an element of the State Implementation Plan that is a federally approved and enforceable strategy outlining how Oregon will meet federal air quality standards to protect public health and the environment.

What alternatives did DEQ consider if any?

A total ban on open burning was not considered feasible in an area as diverse as Lane County. Open burning is recognized as an important tool for disposal of yard debris and reducing overall fire danger, especially on larger acreages in more rural areas of Lane County.

Land use

“It is the Commission's policy to coordinate the Department's programs, rules and actions that affect land use with local acknowledged plans to the fullest degree possible.”   ORS 197.180, OAR 018-0010

Land-use considerations

To determine whether the proposed rule involves programs or actions that are considered a land-use action, DEQ considered:

▪  Statewide planning goals for specific references. Section III, subsection 2 of the DEQ State Agency Coordination Program document identifies the following statewide goal relating to DEQ's authority:

 Goal  Title

 5    Open Spaces, Scenic and Historic Areas, and Natural Resources

 6    Air, Water and Land Resources Quality

 11    Public Facilities and Services

 16    Estuarial resources

 19    Ocean Resources

▪  OAR 340-018-0030 for EQC rules on land-use coordination. Division 18 requires DEQ to determine whether the proposed rule will significantly affect land use. If yes, how will DEQ:

◦  Comply with statewide land-use goals, and

◦  Ensure compatibility with acknowledged comprehensive plans, which DEQ most commonly achieves by requiring a Land Use Compatibility Statement.

▪  DEQ’s mandate to protect public health and safety and the environment.

▪  Whether DEQ is the primary authority that is responsible for land-use programs or actions in the proposed rule.

▪  Present or future land uses identified in acknowledged comprehensive plans.

Determination

DEQ determined that the proposed rule, OAR 340-200-0040, does not affect existing rules, programs or activities that are considered land-use programs and actions in OAR 340-018-0030 or in the DEQ State Agency Coordination Program. LRAPA’s rules are consistent with land use in applicable Lane County land use plans.

Stakeholder and public involvement

 Advisory committee

DEQ did not convene an advisory committee. LRAPA followed appropriate requirements for rulemaking when it adopted its rules.

 EQC prior involvement

DEQ shares general rulemaking information with EQC through the monthly Director’s Report. DEQ did not present additional information specific to this proposed rule revision.

Public notice

The January 2014 Oregon Bulletin will publish the Notice of Proposed Rulemaking with Hearing.

DEQ also:

•  Posted notice on DEQ’s webpage http://www.oregon.gov/deq/RulesandRegulations/Pages/2013/LRAPAOB.aspx on Dec. 18, 2013.

•  E-mailed notice on Dec. 18, 2013 to:

•  Interested parties through GovDelivery

•  Interested parties and stakeholders provided to DEQ by LRAPA

•  The following key legislators required under ORS 183.335:

◦  Jules Bailey, Chair, House Energy and Environment Committee

◦  Michael Dembrow, Chair, Senate Environment and Natural Resources Committee

•  Members of LRAPA’s advisory committee

•  Members of LRAPA’s Board of Directors

•  Mailed the notice by U.S. Postal Service to 209 interested parties on December 18, 2013.

•  Sent notice to EPA on Aug. 20, 2013. 

•  Published legal advertisement in the following newspapers on Dec. 18, 2013:

◦  Oregonian

◦  Register Guard

Public hearings

DEQ authorized LRAPA to act as hearings officer for public hearing listed in the table below that includes information about how to participate. DEQ’s authorization is in the letter to LRAPA in the Stringency Review and Authorization section of this document.

Before taking public comment and according to Oregon Administrative Rule 137-001-0030, the staff presenter will summarize the content of the notice given under Oregon Revised Statute 183.335 and respond to any questions about the rulemaking.

DEQ will add the names, addresses and affiliations of all hearing attendees to the interested parties list for this rule if provided on a registration form or the attendee list. DEQ will consider all oral and written comments received at the hearings listed below before finalizing the proposed rule. DEQ will summarize all comments and DEQ will respond to comments on the Environmental Quality Commission staff report.

Close of public comment period

The comment period will close on Jan. 27, 2014 at 5 p.m.

LRAPA Title 47 Rules Adopted by the LRAPA Board of Directors on March 14, 2008 and Proposed For Incorporation into the Oregon State Implementation Plan