XXX XX, 2015

Dennis McLerran

Regional Administrator

U.S. EPA Region 10

1200 Sixth Avenue

Seattle WA 98101

Dear Mr. McLerran,

On Feb. 7, 2013, EPA promulgated emission guidelines for commercial and industrial solid waste incineration units (40 CFR part 60 subpart DDDD). Emission guidelines are not directly enforceable until they are implemented and enforced through either an EPA-approved state plan or a promulgated federal plan.

Oregon DEQ therefore requests EPA approve the attached state plan implementing the emission guidelines for commercial and industrial solid waste incineration units. The attached plan fulfills the requirements in 40 CFR 60.2505 and 60.2515 for state plan submittal.

If you have any questions or require additional information, please contact Jerry Ebersole at (503) 229-6974 or by email at EBERSOLE.Gerald@deq.state.or.us.

Thank you for your attention on this matter.

Sincerely,

Joni Hammond

Deputy Director

cc:  Heather Valdez, EPA Region X

 Paul Koprowski, EPA Region X, Oregon Operations Office

 Andrea Gartenbaum, Oregon DEQ

OREGON

STATE PLAN TO IMPLEMENT THE EMISSION GUIDELINES FOR

COMMERCIAL AND INDUSTRIAL SOLID WASTE INCINERATION UNITS

Air Quality Program Operations Section

Air Quality Division

Oregon Department of Environmental Quality

May 2014

I.  Overview

In Mar. 2011 and Feb. 2013, the Environmental Protection Agency (EPA) promulgated amendments to the Emission Guidelines for commercial and industrial solid waste incineration units (40 CFR part 60 subpart DDDD). Emission guidelines are not directly enforceable until they are implemented and enforced through either an EPA-approved state plan or a promulgated Federal Plan. This state plan implements the Emission Guidelines for commercial and industrial solid waste incineration units in Oregon. This plan applies throughout Oregon, including in Lane County, where air quality laws are implemented and enforced by the Lane Regional Air Protection Agency (LRAPA).

II.  State Plan Requirements

This plan fulfills the requirements in 40 CFR 60.2505 and 60.2515 for a state plan submittal.

III.  Adoption and Submittal of State plan

§60.2505(c): You must submit a state plan that meets the requirements of this subpart and contains the more stringent emission limit for the respective pollutant in table 6 of this subpart or table 1 of subpart CCCC of this part to EPA by February 7, 2014 for incinerators that commenced construction after November 30, 1999, but no later than June 4, 2010, or commenced modification or reconstruction after June 1, 2001 but no later than August 7, 2013.

This plan meets the requirement that the Oregon Department of Environmental Quality (“DEQ”) submit a plan for the control of designated pollutant(s) from commercial and industrial solid waste incineration units. DEQ has adopted the emission limits in table 6 of 40 CFR part 60 subpart DDDD by reference in OAR 340-230-0500(7)(c) for incinerators that commenced construction after November 30, 1999, but no later than June 4, 2010, or commenced modification or reconstruction after June 1, 2001 but no later than August 7, 2013.

§60.2505(d): You must submit a state plan to EPA that meets the requirements of this subpart and contains the emission limits in tables 7 through 9 of this subpart by February 7, 2014, for CISWI units other than incinerator units that commenced construction on or before June 4, 2010, or commenced modification or reconstruction after June 4, 2010 but no later than August 7, 2013.

This plan meets the requirement that DEQ submit a plan for the control of designated pollutant(s) from commercial and industrial solid waste incineration units. DEQ has adopted the emission limits in tables 7 through 9 of 40 CFR part 60 subpart DDDD by reference under OAR 340-230-0500(7)(c) for incinerators that commenced construction on or before June 4, 2010, or commenced modification or reconstruction after June 4, 2010 but no later than August 7, 2013.

IV.  Inventory of affected CISWI units

§60.2515(a)(1): Inventory of affected CISWI units, including those that have ceased operation but have not been dismantled.

V.  Inventory of affected CISWI units

§60.2515(a)(2): Inventory of emissions from affected CISWI units in your State.

Cadmium (Cd) Emissions

Carbon Monoxide (CO) Emissions

Dioxins/Furans (total mass basis) Emissions

Dioxins/Furans (toxic equivalency basis) Emissions

Hydrogen Chloride (HCl) Emissions

Lead (Pb) Emissions

Mercury (Hg) Emissions

Oxides of Nitrogen (NOx) Emissions

Particulate Matter (PM) Emissions

Sulfur Dioxide (SO2) Emissions

VI.  Compliance schedules

§60.2515(a)(3): Compliance schedules for each affected CISWI unit.

In accordance with 40 CFR 60.2535, OAR 340-230-0500(3) contains the following compliance schedule:

•  CISWI units in the incinerator subcategory and air curtain incinerators, that commenced construction on or before November 30, 1999, must achieve final compliance not later than the effective date of State plan approval.

•  CISWI units in the incinerator subcategory and air curtain incinerators, that commenced construction after November 30, 1999, but on or before June 4, 2010, and for CISWI units in the small remote incinerator, energy recovery unit, and waste-burning kiln subcategories, that commenced construction before June 4, 2010, must achieve final compliance as expeditiously as practicable after approval of the state plan but not later than three years after the effective date of State plan approval or February 7, 2018, whichever is earlier.

In accordance with 40 CFR 60.2575 through 60.2615, OAR 340-230-0500(6) contains the following increments of progress:

•  Increments of Progress. If planning to achieve compliance more than 1 year following the effective date of State plan approval, an owner or operator of an affected CISWI unit or air curtain incinerator must meet the following increments of progress:

◦  Submit a final control plan by two years after the effective date of State plan approval or February 7, 2017, whichever is earlier.

◦  Achieve final compliance by three years after the effective date of State plan approval or February 7, 2018, whichever is earlier.

•  Notifications of achievement of increments of progress. Notifications for achieving increments of progress must be postmarked no later than 10 business days after the compliance date for the increment. The notification of achievement of increments of progress must include the following three items:

◦  Notification that the increment of progress has been achieved.

◦  Any items required to be submitted with each increment of progress.

◦  Signature of the owner or operator of the CISWI unit or air curtain incinerator.

•  Failure to meet an increment of progress. If failing to meet an increment of progress, the owner or operator must submit a notification to DEQ or LRAPA (in Lane County) and the EPA Administrator postmarked within 10 business days after the date for that increment of progress. The owner or operator must inform DEQ or LRAPA (in Lane County) and the EPA Administrator of the failure to meet the increment, and must continue to submit reports each subsequent calendar month until the increment of progress is met.

•  Complying with the increment of progress for submittal of a control plan. For the control plan increment of progress, the owner or operator must satisfy the following two requirements:

◦  Submit the final control plan that includes the following five items:

▪  A description of the devices for air pollution control and process changes that will be used to comply with the emission limitations and other requirements of this rule.

▪  The type(s) of waste to be burned.

▪  The maximum design waste burning capacity.

▪  The anticipated maximum charge rate.

▪  If applicable, the petition for site-specific operating limits under subsection (6)(e) of this rule.

◦  Maintain an onsite copy of the final control plan.

•  Complying with the increment of progress for achieving final compliance. For the final compliance increment of progress, the owner or operator must complete all process changes and retrofit construction of control devices, as specified in the final control plan, so that, if the affected CISWI unit or air curtain incinerator is brought online, all necessary process changes and air pollution control devices would operate as designed.

•  Closing a CISWI Unit or air curtain incinerator.

◦  If closing a CISWI unit or air curtain incinerator but restarting it prior to the final compliance date, the owner or operator must meet the increments of progress.

◦  If closing a CISWI unit or air curtain incinerator but restarting it after the final compliance date, the owner or operator must complete emission control retrofits and meet the emission limitations and operating limits on the date the unit restarts operation.

◦  If planning to close a CISWI unit or air curtain incinerator rather than comply with this rule, the owner or operator must submit a closure notification, including the date of closure, to DEQ or LRAPA (in Lane County) and the EPA Administrator by the date the final control plan is due.

VII.  Emission Standards and Compliance Schedules

§60.2515(a)(4): Emission limitations, operator training and qualification requirements, a waste management plan, and operating limits for affected CISWI units that are at least as protective as the emission guidelines contained in this subpart.

•  Emission limitations: OAR 340-230-0500(7)(c) and (8)(a) reference the model emission limitations in 40 CFR 60.2670 and 60.2860.

•  Operator training and qualification requirements: OAR 340-230-0500(7)(b) references the model operator training and qualification requirements in 40 CFR 60.2635 through 60.2665.

•  Waste management plan: OAR 340-230-0500(7)(a) references the model waste management plan requirements in 40 CFR 60.2620 through 60.2630.

•  Operating limits: OAR 340-230-0500(7)(d) references the operating limits in 40 CFR 60.2675 and 60.2680.

VIII.  Performance testing, recordkeeping, and reporting requirements

§60.2515(a)(5): Performance testing, recordkeeping, and reporting requirements.

OAR 340-230-0500(7)(g) and (8)(b) reference the test methods and procedures in 40 CFR 60.2690 through 60.2735 and 60.2865 for determining compliance with the emission standards.

OAR 340-230-0500(7)(g) and (8)(b) also reference 40 CFR 60.2740 through 60.2800 and 60.2870 which are the model recordkeeping and reporting requirements from the federal emission guidelines.

IX.  Public hearings

§60.2515(a)(6): Certification that the hearing on the State plan was held, a list of witnesses and their organizational affiliations, if any, appearing at the hearing, and a brief written summary of each presentation or written submission.

Public hearings:

Dec. 18, 2013, 5:00 pm

DEQ Headquarters Building

Room EQC A on the 10^th Floor

811 SW 6th Ave

Portland, OR, 97204

Those unable to attend hearing in person were invited to participate by conference line at the following locations:

DEQ - Bend Regional Office

Conference Room

475 NE Bellevue Dr., Suite 110

Bend, OR 97701

DEQ - Medford Regional Office

Conference Room

221 Stewart Ave, Suite 201

Medford, OR 97501

DEQ provided 30 day notification of public hearing as follows:

•  Published in the following papers:

◦  The Oregonian: Nov. 18, 2013

◦  Daily Journal of Commerce: Nov. 18, 2013

•  Electronic notification (Gov. delivery list)

◦  Nov. 18, 2013: 2600+ recipients

•  Mailing (potentially affected sources)

◦  Nov. 18, 2013: 400+ recipients

•  EPA notification

◦  Nov. 2, 2013 letter (and public notice package)

•  Oregon Bulletin (Oregon Secretary of State): Dec. 1, 2013

DEQ prepared and will retain, for a minimum of 2 years, a record of the public hearing for inspection by any interested party.

X.  Progress reports

§60.2515(a)(7): Provision for State progress reports to EPA.

DEQ will submit progress reports of plan enforcement as required.

XI.  Enforceable State mechanisms

§60.2515(a)(8): Identification of enforceable State mechanisms that you selected for implementing the emission guidelines of this subpart.

The EQC has adopted OAR 340-230-0500 that partially adopts the emission guidelines by reference, as tailored to the particular circumstances and applicability in Oregon. OAR 340-230-0500(9) requires CISWI units and air curtain incinerators subject to OAR 340-230-0500 to comply with the Oregon Title V Operating Permit program requirements as specified in OAR 340 divisions 218 and 220 for DEQ. All Title V permits and amendments/revisions thereto for designated facilities will clearly reference the appropriate state plan approval provisions under 40 CFR part 62, not the emission guidelines under 40 CFR part 60.

Pursuant to ORS 468A.135, the EQC has required LRAPA to implement this division within its area of jurisdiction, unless LRAPA adopts rules which are at least as strict as this division. ORS 468A.165 authorizes the EQC to require LRAPA to take corrective measures if the EQC concludes that LRAPA is not administering its responsibilities consistent with state requirements. In addition, subject to and with the EQC’s approval under ORS 468A.155, LRAPA has adopted Oregon’s Title V Operating Permit program by reference in Sections 34-170 through 34-200.

XII.  Legal Authority

§60.2515(a)(9): Demonstration of your State’s legal authority to carry out the sections 111(d) and 129 State plan.

§60.26(a)(1): Each plan shall show that the State has legal authority to carry out the plan, including authority to: Adopt emission standards and compliance schedules applicable to designated facilities.

ORS 468.020 gives the EQC the authority to adopt such rules and standards as it considers necessary and proper in performing the functions vested by law in the commission.

ORS 468A.025 gives the EQC the authority to establish air quality standards including emission standards for the entire state or an area of the state. The standards shall set forth the maximum amount of air pollution permissible in various categories of air contaminants and may differentiate between different areas of the state, different air contaminants and different air contamination sources or classes thereof.

§60.26(a)(2): Enforce applicable laws, regulations, standards, and compliance schedules, and seek injunctive relief.

ORS 468.090 requires DEQ (and LRAPA by EQC designation under ORS 468A.135) to investigate complaints which it has cause to believe that any person is violating any rule or standard adopted by the EQC or any permit issued by DEQ (or LRAPA) by causing or permitting air pollution or air contamination. If DEQ (or LRAPA) finds after investigation that such a violation of any rule or standard or of any permit exists, the source is required to eliminate the source or cause of the pollution or contamination which resulted in such violation. In case of failure to remedy the violation, DEQ (or LRAPA) is required to commence enforcement proceedings.

ORS 468.095 gives DEQ (and LRAPA in Lane County by EQC designated under ORS 468A.135) the power to enter upon and inspect, at any reasonable time, any public or private property, premises or place for the purpose of investigating either an actual or suspected source of air pollution or air contamination or to ascertain compliance or noncompliance with any rule, standard, order, or permit. It also gives the EQC access to any pertinent records relating to such property, including but not limited to blueprints, operation and maintenance records and logs, operating rules and procedures.

ORS 468.100 gives the EQC and LRAPA the authority to institute actions and proceedings for legal and equitable remedies, including injunctive relief, to enforce compliance thereto or to restrain further violations.

LRAPA Section 13-005 gives LRAPA the authority to institute actions and proceedings to enforce EQC and LRAPA rules and standards, including seeking injunctive relief.

ORS 468.115 gives DEQ the authority to issue a cease and desist order whenever it appears the air pollution or air contamination is presenting an imminent and substantial endangerment to the health of persons.

LRAPA Section 51-015 requires air contaminant sources to take actions to maximize emission reductions and in some instances cease operation when an air pollution warning or emergency is declared.

ORS 468.120 gives the EQC (and LRAPA in Lane County by EQC designation under ORS 468A.135) the authority to issue subpoenas, administer oaths, and take or cause to be taken depositions and receive such pertinent and relevant proof as may be considered necessary or proper to carry out duties of the commission and DEQ (or LRAPA).

ORS 468.126 requires advance warning of penalty unless:

•  the violation is intentional;

•  the violation would not normally occur for five consecutive days;

•  the permittee received prior advance warning of any violation of the permit within the 36 months immediately preceding the violation;

•  the permittee is subject to the federal operating permit program and violates any adopted rule or standard or permit or order; or

•  the requirement to provide such notice would disqualify a state program from federal approval or delegation.

ORS 468.130 requires the EQC to adopt by rule a schedule or schedules establishing the amount of civil penalty that may be imposed for a particular violation not to exceed $25,000 per day and lists factors the commission is required to consider in imposing a penalty.

ORS 468.135 requires all recovered penalties to be paid into the State Treasury and credited to the General Fund, or if the penalty is recovered by a regional air quality control authority, into the county treasury of the county in which the violation occurred.

ORS 468.140 requires additional civil penalties for each day of violation.

ORS 468A.135 authorizes the EQC to delegate to LRAPA the responsibility to implement air quality control functions within its jurisdiction and to require LRAPA to implement and enforce state laws and the EQC’s rules and standards. ORS 468A.165 authorizes the EQC to require LRAPA to take corrective measures if the EQC concludes that LRAPA is not administering its responsibilities consistent with state requirements.

§60.26(a)(3): Obtain information necessary to determine whether designated facilities are in compliance with applicable laws, regulations, standards, and compliance schedules, including authority to require recordkeeping and to make inspections and conduct tests of designated facilities.

ORS 468.095 gives DEQ (and LRAPA in Lane County by EQC designation under ORS 468A.135) the power to enter upon and inspect, at any reasonable time, any public or private property, premises or place for the purpose of investigating either an actual or suspected source of air pollution or air contamination or to ascertain compliance or noncompliance with any rule or standard adopted or order or permit issued.

ORS 468A.055 gives the EQC (and LRAPA in Lane County by EQC designation under ORS 468A.135) the authority to require any information concerning air contaminant emissions as is necessary to determine whether proposed construction is in accordance with applicable rules or standards.

ORS 468A.070 gives the EQC (and LRAPA in Lane County by EQC designation under ORS 468A.135) the authority to establish a program for testing of contamination sources and may perform such testing or may require any person in control of an air contamination source to perform the testing.

ORS 468A.135 authorizes the EQC to delegate to LRAPA the responsibility to implement air quality control functions within its jurisdiction and to require LRAPA to implement and enforce state laws and the EQC’s rules and standards. ORS 468A.165 authorizes the EQC to require LRAPA to take corrective measures if the EQC concludes that LRAPA is not administering its responsibilities consistent with state requirements.

OAR 340-214-0110 and LRAPA Section 34-015 require sources to provide information that, respectively, DEQ and LRAPA (in Lane County) reasonably require for the purpose of regulating stationary sources. Such information includes, but is not limited to, information necessary to: issue a permit and ascertain compliance or noncompliance with the permit terms and conditions; ascertain applicability of any requirement; and ascertain compliance or noncompliance with any applicable requirement.

§60.26(a)(4): Require owners or operators of designated facilities to install, maintain, and use emission monitoring devices and to make periodic reports to the State on the nature and amounts of emissions from such facilities; also authority for the State to make such data available to the public as reported and as correlated with applicable emission standards.

ORS 468.095 requires DEQ (and LRAPA in Lane County by EQC designation under ORS 468A.135) to make records, reports or information available to the public.

ORS 468A.070 gives DEQ (and LRAPA in Lane County by EQC designation under ORS 468A.135) the authority to establish a program for measurement of contamination sources and may perform such sampling or may require any person in control of an air contamination source to perform the sampling.

OAR 340-212-0120 and LRAPA Section 35-0120 give, respectively, DEQ and LRAPA (in Lane County) the authority to require owners or operators of a stationary source to determine the type, quantity, quality, and duration of the emissions from any air contamination source. They also give DEQ and LRAPA (in Lane County) the authority to require continuous monitoring of specified air contaminant emissions or parameters and periodic regular reporting of the results of such monitoring.

OAR 340-214-0110 and LRAPA Section 34-015 require sources to provide information that DEQ or LRAPA (in Lane County) reasonably require for the purpose of regulating stationary sources. Such information includes, but is not limited to, information necessary to incorporate monitoring, reporting, and compliance certification requirements into a permit.

OAR 340-214-0114 and LRAPA Section 35-0160 require sources to prepare records in the form of a report and submit to DEQ or LRAPA (in Lane County) on an annual, semi-annual, or more frequent basis, as requested in writing by DEQ or LRAPA (in Lane County). All reports and certifications submitted to DEQ or LRAPA (in Lane County) must accurately reflect the monitoring, recordkeeping and other documentation held or performed by the owner or operator.

DEQ enforces these responsibilities under and consistent with the provisions of OAR chapter 340, division 11, “Enforcement Procedures and Civil Penalties.”

LRAPA enforces these responsibilities under and consistent with the provisions of Title 15, “Enforcement Procedures and Civil Penalties.”

§60.25(b): The provisions of law or regulations which the State determines provide the authorities required by this section shall be specifically identified. Copies of such laws or regulations shall be submitted with the plan unless: They have been approved as portions of a preceding plan submitted under this subpart or as portions of an implementation plan submitted under section 110 of the Act, and The State demonstrates that the laws or regulations are applicable to the designated pollutant(s) for which the plan is submitted.

The laws and regulations referenced in this plan are provided in Exhibit B.

§60.25(c): The plan shall show that the legal authorities specified in this section are available to the State at the time of submission of the plan. Legal authority adequate to meet the requirements of 40 paragraphs (a)(3) and (4) of this section may be delegated to the State under section 114 of the Act.

The above legal authorities are available to the State and LRAPA at the time of submission of the plan.

§60.25(d): A State governmental agency other than the State air pollution control agency may be assigned responsibility for carrying out a portion of a plan if the plan demonstrates to the Administrator's satisfaction that the State governmental agency has the legal authority necessary to carry out that portion of the plan.

ORS 468A.165 provides that if LRAPA fails to appropriately administer its responsibilities under this plan within Lane County, then the EQC must do so and the EQC’s actions will supersede all of LRAPA’s rules, standards and orders.

§60.26(e): The State may authorize a local agency to carry out a plan, or portion thereof, within the local agency's jurisdiction if the plan demonstrates to the Administrator's satisfaction that the local agency has the legal authority necessary to implement the plan or portion thereof, and that the authorization does not relieve the State of responsibility under the Act for carrying out the plan or portion thereof.

As noted above, ORS 468A.135 permits the EQC to authorize LRAPA to exercise certain specified EQC and DEQ air quality program functions within Lane County, subject to the EQC’s review and approval of any standards adopted by LRAPA, and provided that LRAPA enforces EQC rules and standards if so required. The EQC has adopted OAR 340-200-0010(3) to authorize LRAPA to undertake such responsibilities. Finally, ORS 468A.165 provides that if LRAPA fails to appropriately administer its responsibilities under this plan within Lane County, then the EQC must do so and the EQC’s actions will supersede all of LRAPA’s rules, standards and orders.

Exhibit A

DEPARTMENT OF ENVIRONMENTAL QUALITY

DIVISION 200

GENERAL AIR POLLUTION PROCEDURES AND DEFINITIONS

General

340-200-0010

Purpose and Application

(1) This division provides general air pollution procedures and definitions that apply to all air quality rules in OAR 340 divisions 200 through 268.

(2) Divisions 200 through 268 apply in addition to all other rules adopted by the EQC. In cases of apparent conflict between rules within these divisions, the most stringent rule applies unless otherwise expressly stated.

(3) DEQ administers divisions 200 through 268 in all areas of the State of Oregon except when the EQC has designated LRAPA to administer rules within its area of jurisdiction. Subject to and when provided in divisions 200 through 268, LRAPA is authorized by the EQC as the agency to implement these state rules, and must apply the requirements and procedures contained in these state rules, within its area of jurisdiction. LRAPA may apply any LRAPA rule in lieu of a state rule(s) provided that the LRAPA rule is at least as strict as the state rule(s), LRAPA has submitted the rule to the EQC for its approval, and the EQC has not disapproved the rule.

NOTE: This rule is included in the State of Oregon Clean Air Act Implementation Plan that EQC adopted under OAR 340-200-0040.

Stat. Auth.: ORS 468.020 & 468A
Stats. Implemented: ORS 468 & 468A
Hist.: DEQ 14-1999, f. & cert. ef. 10-14-99; DEQ 6-2001, f. 6-18-01, cert. ef. 7-1-01; DEQ 8-2007, f. & cert. ef. 11-8-07; DEQ XX-XXXX, f. & cert. ef. XX-XX-XX

DIVISION 230

INCINERATOR REGULATIONS

340-230-0020

Applicability

(1) OAR 340-230-0100 through 340-230-0150 apply to all solid and infectious waste incinerators other than:

(a) Municipal waste combustors, including those municipal waste combustors that burn some medical waste, that are subject to either OAR 340-238-0060, or 340-230-0300 through 340-230-0395; and

(b) Hospital/medical/infectious waste incinerators that are subject to OAR 340-230-0415.

(c) Commercial and industrial solid waste incinerators that are subject to OAR 340-230-0500.

(2) OAR 340-230-0200 through 340-230-0230 apply to all new and existing crematory incinerators;

(3) OAR 340-230-0300 through 340-230-0395 apply to municipal waste combustors as specified in 340-230-0300.

(4) OAR 340-230-0415 applies to hospital/medical/infectious waste incinerators as specified in 40 CFR Part 62 Subpart HHH.

(5) OAR 340-230-0500 applies to commercial and industrial solid waste incineration units as specified in OAR 340-230-0500(3) and (4).

(6) Subject to the requirements in this division, LRAPA is designated by the EQC to implement this division within its area of jurisdiction. The requirements and procedures contained in this division must be used by LRAPA unless LRAPA has adopted or adopts rules which are at least as strict as this division.

Stat. Auth.: ORS 468.020
Stats. Implemented: ORS 468A.025
Hist.: DEQ 27-1996, f. & cert. ef. 12-11-96; DEQ 14-1999, f. & cert. ef. 10-14-99, Renumbered from 340-025-0852; DEQ 4-2003, f. & cert. ef. 2-06-03; DEQ 8-2007, f. & cert. ef. 11-8-07; DEQ XX-XXXX, f. & cert. ef. XX-XX-XX

Commercial and Industrial Solid Waste Incineration Units

340-230-0500

Emission Standards for Commercial and Industrial Solid Waste Incineration Units

(1) Purpose. This rule implements the emission guidelines and compliance schedules for the control of emissions from commercial and industrial solid waste incineration (CISWI) units. Subject to the requirements in this rule, LRAPA is designated by the EQC to implement this rule within its area of jurisdiction. The requirements and procedures contained in this rule must be used by LRAPA unless LRAPA has adopted or adopts requirements which are at least as strict as this rule.

(2) Definitions. Terms used in this rule are as defined in 40 CFR 60.2875. In 40 CFR 60.2875, substitute “is defined by the EPA administrator” for “is defined by the Administrator” and substitute “established by the EPA Administrator by rule” for “established by the Administrator by rule”.

(3) Compliance schedule.

(a) CISWI units in the incinerator subcategory that commenced construction on or before November 30, 1999, must achieve final compliance as expeditiously as practicable after approval of the State plan but not later than the earlier of the following two dates:

(A) December 1, 2005.

(B) Three years after the effective date of State plan approval.

(b) CISWI units in the incinerator subcategory and air curtain incinerators, that commenced construction after November 30, 1999, but on or before June 4, 2010, and for CISWI units in the small remote incinerator, energy recovery unit, and waste-burning kiln subcategories, that commenced construction before June 4, 2010, must achieve final compliance as expeditiously as practicable after approval of the state plan but not later than three years after the effective date of State plan approval or February 7, 2018, whichever is earlier.

(4) Affected CISWI units.

(a) Incineration units that meet all of the following three criteria are affected CISWI units:

(A) CISWI units that commenced construction on or before June 4, 2010, or commenced modification or reconstruction after June 4, 2010 but no later than August 7, 2013.

(B) Incineration units that meet the definition of a CISWI unit in 40 CFR 60.2875.

(C) Incineration units not exempt under section (5) of this rule.

(b) If the owner or operator of a CISWI unit makes changes that meets the definition of modification or reconstruction on or after June 1, 2001, the CISWI unit becomes subject to 40 CFR Part 60 Subpart CCCC and this rule no longer applies to that unit.

(c) If the owner or operator of a CISWI unit makes physical or operational changes to an existing CISWI unit primarily to comply with this rule, then 40 CFR Part 60 Subpart CCCC does not apply to that unit. Such changes do not qualify as modifications or reconstructions under 40 CFR Part 60 Subpart CCCC.

(5) Exempt units. The types of units in subsections (5)(a) through (k) of this rule are exempt from this rule, but some units are required to provide notifications. Air curtain incinerators are exempt from the requirements of this rule except for the requirements in sections (7) and (8) of this rule.

(a) Pathological waste incineration units burning 90 percent or more by weight (on a calendar quarter basis and excluding the weight of auxiliary fuel and combustion air) of pathological waste, low level radioactive waste, and/or chemotherapeutic waste as defined in 40 CFR 60.2875 if the owner or operator meets the following two requirements:

(A) Notify DEQ and EPA Administrator that the unit meets these criteria.

(B) Keep records on a calendar quarter basis of the weight of pathological waste, low-level radioactive waste, and/or chemotherapeutic waste burned, and the weight of all other fuels and wastes burned in the unit.

(b) Municipal waste combustion units that meet the applicability criteria in 40 CFR Part 60 Subpart Cb (Emission Guidelines and Compliance Times for Large Municipal Combustors); Ea (Standards of Performance for Municipal Waste Combustors); Eb (Standards of Performance for Large Municipal Waste Combustors); AAAA (Standards of Performance for Small Municipal Waste Combustion Units); or BBBB (Emission Guidelines for Small Municipal Waste Combustion Units).

(c) Medical waste incineration units that meet the applicability criteria in 40 CFR Part 60 Subpart Ca (Emission Guidelines and Compliance Times for Hospital/Medical/Infectious Waste Incinerators) or Ec (Standards of Performance for Hospital/Medical/Infectious Waste Incinerators for Which Construction is Commenced After June 20, 1996).

(d) Small power production facilities that meet the following four requirements:

(A) The unit qualifies as a small power-production facility under section 3(17)(C) of the Federal Power Act (16 U.S.C. § 796(17)(C)).

(B) The unit burns homogeneous waste (not including refuse-derived fuel) to produce electricity.

(C) The owner or operator submits documentation to DEQ that the EPA Administrator has determined that the qualifying small power production facility is combusting homogenous waste.

(D) The owner or operator maintains the records specified in 40 CFR 60.2740(v).

(e) Cogeneration facilities. Units that meet the following three requirements:

(A) The unit qualifies as a cogeneration facility under section 3(18)(B) of the Federal Power Act (16 U.S.C. § 796(18)(B)).

(B) The unit burns homogeneous waste (not including refuse-derived fuel) to produce electricity and steam or other forms of energy used for industrial, commercial, heating, or cooling purposes.

(C) The owner or operator submits documentation to DEQ that the EPA Administrator has determined that the qualifying cogeneration facility is combusting homogenous waste.

(D) The owner or operator maintains the records specified in 40 CFR 60.2740(w).

(f) Hazardous waste combustion units for which the owner or operator is required to get a permit under section 3005 of the Solid Waste Disposal Act (42 U.S.C. § 6925).

(g) Materials recovery units that combust waste for the primary purpose of recovering metals, such as primary and secondary smelters.

(h) Air curtain incinerators that burn only the following materials are only required to meet the requirements under “Air Curtain Incinerators” (section (7) of this rule):

(A) 100 percent wood waste.

(B) 100 percent clean lumber.

(C) 100 percent mixture of only wood waste, clean lumber, and/or yard waste.

(i) Sewage treatment plants regulated under 40 CFR Part 60 Subpart O (Standards of Performance for Sewage Treatment Plants).

(j) Sewage sludge incineration units combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter that meet the applicability criteria in 40 CFR Part 60 Subpart LLLL (Standards of Performance for Sewage Sludge Incineration Units) or 40 CFR Part 60 Subpart MMMM (Emission Guidelines for Sewage Sludge Incineration Units).

(k) Other solid waste incineration units that meet the applicability criteria in 40 CFR Part 60 Subpart EEEE (Standards of Performance for Other Solid Waste Incineration Units) or 40 CFR Part 60 Subpart FFFF (Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units).

(6) Requirements for CISWI units.

(a) Increments of Progress and Achieving Final Compliance. If planning to achieve compliance more than 1 year following the effective date of State plan approval, an owner or operator of an affected CISWI unit must meet the following increments of progress:

(A) Submit a final control plan by two years after the effective date of State plan approval or February 7, 2017, whichever is earlier, and

(B) Achieve final compliance by three years after the effective date of State plan approval or February 7, 2018, whichever is earlier.

(b) Notifications of achievement of increments of progress. Notifications for achieving increments of progress must be postmarked no later than 10 business days after the compliance date for the increment. The notification of achievement of increments of progress must include the following three items:

(A) Notification that the increment of progress has been achieved.

(B) Any items required to be submitted with each increment of progress.

(C) Signature of the owner or operator of the CISWI unit or air curtain incinerator.

(c) Failure to meet an increment of progress. If failing to meet an increment of progress, the owner or operator must submit a notification to DEQ and the EPA Administrator postmarked within 10 business days after the date for that increment of progress. The owner or operator must inform DEQ and the EPA Administrator of the failure to meet the increment, and must continue to submit reports each subsequent calendar month until the increment of progress is met.

(d) Complying with the increment of progress for submittal of a control plan. For the control plan increment of progress, the owner or operator must satisfy the following two requirements:

(A) Submit the final control plan that includes the following five items:

(i) A description of the devices for air pollution control and process changes that will be used to comply with the emission limitations and other requirements of this rule.

(ii) The type(s) of waste to be burned.

(iii) The maximum design waste burning capacity.

(iv) The anticipated maximum charge rate.

(v) If applicable, the petition for site-specific operating limits under subsection (6)(k) of this rule.

(B) Maintain an onsite copy of the final control plan.

(e) Complying with the increment of progress for achieving final compliance. For the final compliance increment of progress, the owner or operator must complete all process changes and retrofit construction of control devices, as specified in the final control plan, so that, if the affected CISWI unit is brought online, all necessary process changes and air pollution control devices would operate as designed.

(f) Closing a CISWI unit.

(A) If closing a CISWI unit but restarting it prior to the final compliance date, the owner or operator must meet the increments of progress.

(B) If closing a CISWI unit but restarting it after the final compliance date, the owner or operator must complete emission control retrofits and meet the emission limitations and operating limits on the date the unit restarts operation.

(C) If planning to close a CISWI unit rather than comply with this rule, the owner or operator must submit a closure notification, including the date of closure, to DEQ and the EPA Administrator by the date the final control plan is due.

(g) Waste management plan. Owners and operators of affected CISWI units must comply with 40 CFR 60.2620 through 60.2630. In 40 CFR 60.2625, substitute “OAR 340-230-0500(6)(a)(A)” for “table 1 of this subpart”.

(h) Operator training and qualification. Owners or operators of affected CISWI units must comply with 40 CFR 60.2635 through 60.2665. In 40 CFR 60.2665(b)(1), substitute “DEQ” for “the Administrator”. In 40 CFR 60.2665(b)(2) and (b)(2)(ii), substitute “EPA Administrator” for “Administrator”.

(i) Emission limitations. Owners and operators of affected CISWI units must comply with 40 CFR 60.2670 with the following changes:

(A) In 40 CFR 60.2670(a), substitute “in OAR 340-230-0500(3)” for “under the approved state plan, federal plan, or delegation, as applicable”.

(B) Table 2 to 40 CFR Part 60 Subpart DDDD applies only to CISWI units constructed after November 30, 1999 but prior to June 4, 2010, and that were subject to 40 CFR Part 60 Subpart CCCC (Standards of Performance for Commercial and Industrial Solid Waste Incineration Units) prior to June 4, 2010.

(C) In Tables 2 and 6 through 9 to 40 CFR Part 60 Subpart DDDD, substitute “three years after the effective date of State plan approval or February 7, 2018, whichever is earlier” for “[DATE TO BE SPECIFIED IN STATE PLAN]”.

(j) Operating limits. Owners and operators of affected CISWI units must comply with 40 CFR 60.2675.

(k) Site-specific operating limit. Owners and operators of affected CISWI units may request a site-specific operating limit in accordance with 40 CFR 60.2680.

(l) Affirmative defense for violation of emission standards during malfunction. In response to an action to enforce the standards set forth in subsection (6)(i) of this rule, the owner or operator may assert an affirmative defense to a claim for civil penalties for violations of such standards that are caused by malfunction, as defined at 40 CFR 60.2, and in accordance with 40 CFR 60.2685. In 40 CFR 60.2685(b), substitute “DEQ and the EPA administrator” for “the Administrator”.

(m) Compliance demonstration. Owners and operators of affected CISWI units must demonstrate compliance with this rule in accordance with 40 CFR 60.2690 through 60.2800.

(A) In 40 CFR 60.2720(a)(1), substitute “DEQ or the EPA Administrator may request” for “The Administrator may request”.

(B) In 40 CFR 60.2720(a)(3), substitute “request by DEQ or the EPA Administrator” for “request by the Administrator”.

(C) In 40 CFR 60.2725(a), substitute “DEQ or the EPA Administrator may request” for “The Administrator may request”.

(D) In 40 CFR 60.2730(n)(1) and (n)(2), substitute “Notify DEQ” for “Notify the Administrator”.

(E) In 40 CFR 60.2730(n)(4), substitute “notification to DEQ” for “notification to the Administrator”.

(F) In 40 CFR 60.2745, substitute “DEQ” for “the Administrator”.

(G) In 40 CFR 60.2785(a)(2), (a)(2)(iii), and (b), substitute “DEQ” for “the Administrator”.

(H) In 40 CFR 60.2795(b)(1) and (b)(2), substitute “DEQ and the EPA Administrator” for “the Administrator”.

(I) In 40 CFR 60.2800, substitute “DEQ” for “the Administrator”.

(7) Requirements for air curtain incinerators.

(a) An air curtain incinerator operates by forcefully projecting a curtain of air across an open chamber or open pit in which combustion occurs. Incinerators of this type can be constructed above or below ground and with or without refractory walls and floor. (Air curtain incinerators are not to be confused with conventional combustion devices with enclosed fireboxes and controlled air technology such as mass burn, modular, and fluidized bed combustors.)

(b) Increments of Progress. If planning to achieve compliance more than 1 year following the effective date of State plan approval, an owner or operator must meet the following increments of progress:

(A) Submit a final control plan by two years after the effective date of State plan approval or February 7, 2017, whichever is earlier, and

(B) Achieve final compliance by three years after the effective date of State plan approval or February 7, 2018, whichever is earlier.

(c) Notifications of achievement of increments of progress. Notifications for achieving increments of progress must be postmarked no later than 10 business days after the compliance date for the increment. The notification of achievement of increments of progress must include the following three items:

(A) Notification that the increment of progress has been achieved.

(B) Any items required to be submitted with each increment of progress (see subsection (7)(d) of this rule).

(C) Signature of the owner or operator of the incinerator.

(c) Failure to meet an increment of progress. If failing to meet an increment of progress, the owner or operator must submit a notification to DEQ and the EPA Administrator postmarked within 10 business days after the date for that increment of progress. The owner or operator must inform DEQ and the EPA Administrator of the failure to meet the increment, and must continue to submit reports each subsequent calendar month until the increment of progress is met.

(d) Complying with the increment of progress for submittal of a control plan. For the control plan increment of progress, the owner or operator must satisfy the following two requirements:

(A) Submit the final control plan that including a description of any devices for air pollution control and any process changes that will be used to comply with the emission limitations and other requirements of this rule.

(B) Maintain an onsite copy of the final control plan.

(e) Complying with the increment of progress for achieving final compliance. For the final compliance increment of progress, the owner or operator must complete all process changes and retrofit construction of control devices, as specified in the final control plan, so that, if the affected incinerator is brought online, all necessary process changes and air pollution control devices would operate as designed.

(f) Closing an air curtain incinerator.

(A) If closing an air curtain incinerator but reopening it prior to the final compliance date, the owner or operator must meet the increments of progress in subsection (8)(b).

(B) If closing an air curtain incinerator but restarting it after the final compliance date, the owner or operator must complete emission control retrofits and meet the emission limitations on the date the incinerator restarts operation.

(g) If planning to close an air curtain incinerator rather than comply with this rule, the owner or operator must submit a closure notification, including the date of closure, to DEQ and the EPA Administrator by the date the final control plan is due.

(h) Emission limitations. After the date the initial stack test is required or completed (whichever is earlier, the owner or operator of the affected air curtain incinerator must comply with 40 CFR 60.2860.

(i) Compliance demonstration. The owners or operator of the affected air curtain incinerator must demonstrate compliance with this rule in accordance with 40 CFR 60.2865 and 60.2870. In 40 CFR 60.2870(a) and (b), substitute “DEQ” for “the Administrator”.

(9) Permitting requirements. CISWI units and air curtain incinerators subject to this rule must comply with Oregon Title V Operating Permit program requirements as specified in OAR 340 divisions 218 and 220.

Stat. Auth.: ORS 468.020
Stats. Implemented: ORS 468A.025

Hist.: DEQ XX-XXXX, f. & cert. ef. XX-XX-XX

Exhibit B

Legal Authority

Oregon Revised Statutes Chapter 468 — Environmental Quality Generally

As Effective October 1, 2013

ENFORCEMENT

468.020 Rules and standards.

(1) In accordance with the applicable provisions of ORS chapter 183, the Environmental Quality Commission shall adopt such rules and standards as it considers necessary and proper in performing the functions vested by law in the commission.

(2) Except as provided in ORS 183.335 (5), the commission shall cause a public hearing to be held on any proposed rule or standard prior to its adoption. The hearing may be before the commission, any designated member thereof or any person designated by and acting for the commission. [Formerly 449.173; 1977 c.38 §1]

468.090 Complaint procedure.

(1) In case any written substantiated complaint is filed with the Department of Environmental Quality which it has cause to believe, or in case the department itself has cause to believe, that any person is violating any rule or standard adopted by the Environmental Quality Commission or any permit issued by the department by causing or permitting water pollution or air pollution or air contamination, the department shall cause an investigation thereof to be made. If it finds after such investigation that such a violation of any rule or standard of the commission or of any permit issued by the department exists, it shall by conference, conciliation and persuasion endeavor to eliminate the source or cause of the pollution or contamination which resulted in such violation.

(2) In case of failure to remedy the violation, the department shall commence enforcement proceedings pursuant to the procedures set forth in ORS chapter 183 for a contested case and in ORS 468B.032. [Formerly 449.815; 1999 c.975 §3]

468.095 Investigatory authority; entry on premises; status of records.

(1) The Department of Environmental Quality shall have the power to enter upon and inspect, at any reasonable time, any public or private property, premises or place for the purpose of investigating either an actual or suspected source of water pollution or air pollution or air contamination or to ascertain compliance or noncompliance with any rule or standard adopted or order or permit issued pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B. The Environmental Quality Commission shall also have access to any pertinent records relating to such property, including but not limited to blueprints, operation and maintenance records and logs, operating rules and procedures.

(2) Unless classified by the Director of the Department of Environmental Quality as confidential, any records, reports or information obtained under ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B shall be available to the public. Upon a showing satisfactory to the director by any person that records, reports or information, or particular parts thereof, other than emission data, if made public, would divulge a secret process, device or method of manufacturing or production entitled to protection as trade secrets of such person, the director shall classify such record, report or information, or particular part thereof, other than emission data, confidential and such confidential record, report or information, or particular part thereof, other than emission data, shall not be made a part of any public record or used in any public hearing unless it is determined by a circuit court that evidence thereof is necessary to the determination of an issue or issues being decided at a public hearing. [Formerly 449.169; 1975 c.173 §1]

468.100 Enforcement procedures; powers of regional authorities; status of procedures.

(1) Whenever the Environmental Quality Commission has good cause to believe that any person is engaged or is about to engage in any acts or practices which constitute a violation of ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B, or any rule, standard or order adopted or entered pursuant thereto, or of any permit issued pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B, the commission may institute actions or proceedings for legal or equitable remedies to enforce compliance thereto or to restrain further violations.

(2) The proceedings authorized by subsection (1) of this section may be instituted without the necessity of prior agency notice, hearing and order, or during said agency hearing if it has been initially commenced by the commission.

(3) A regional authority formed under ORS 468A.105 may exercise the same functions as are vested in the commission by this section insofar as such functions relate to air pollution control and are applicable to the conditions and situations of the territory within the regional authority. The regional authority shall carry out these functions in the manner provided for the commission to carry out the same functions.

(4) The provisions of this section are in addition to and not in substitution of any other civil or criminal enforcement provisions available to the commission or a regional authority. The provisions of this section shall not prevent the maintenance of actions for legal or equitable remedies relating to private or public nuisances brought by any other person, or by the state on relation of any person without prior order of the commission. [1973 c.826 §2; 1979 c.284 §153]

468.110 Appeal; power of court to stay enforcement. Any person adversely affected or aggrieved by any order of the Environmental Quality Commission may appeal from such order in accordance with the provisions of ORS chapter 183. However, notwithstanding ORS 183.482 (3), relating to a stay of enforcement of an agency order and the giving of bond or other undertaking related thereto, any reviewing court before it may stay an order of the commission shall give due consideration to the public interest in the continued enforcement of the commission’s order, and may take testimony thereon. [Formerly 449.090; 2007 c.71 §148]

468.115 Enforcement in cases of emergency.

(1) Whenever it appears to the Department of Environmental Quality that water pollution or air pollution or air contamination is presenting an imminent and substantial endangerment to the health of persons, at the direction of the Governor the department shall, without the necessity of prior administrative procedures or hearing, enter an order against the person or persons responsible for the pollution or contamination requiring the person or persons to cease and desist from the action causing the pollution or contamination. Such order shall be effective for a period not to exceed 10 days and may be renewed thereafter by order of the Governor.

(2) The state and local police shall cooperate in the enforcement of any order issued pursuant to subsection (1) of this section and shall require no further authority or warrant in executing and enforcing such an order.

(3) If any person fails to comply with an order issued pursuant to subsection (1) of this section, the circuit court in which the source of water pollution or air pollution or air contamination is located shall compel compliance with the order in the same manner as with an order of that court. [Formerly 449.980]

468.120 Public hearings; subpoenas, oaths, depositions.

(1) The Environmental Quality Commission, its members or a person designated by and acting for the commission may:

(a) Conduct public hearings.

(b) Issue subpoenas for the attendance of witnesses and the production of books, records and documents relating to matters before the commission.

(c) Administer oaths.

(d) Take or cause to be taken depositions and receive such pertinent and relevant proof as may be considered necessary or proper to carry out duties of the commission and Department of Environmental Quality pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.

(2) Subpoenas authorized by this section may be served by any person authorized by the person issuing the subpoena. Witnesses who are subpoenaed shall receive the fees and mileage provided in ORS 44.415 (2). [Formerly 449.048; 1989 c.980 §14b]

468.126 Advance notice.

(1) No civil penalty prescribed under ORS 468.140 shall be imposed for a violation of an air, water or solid waste permit issued by the Department of Environmental Quality until the permittee has received five days’ advance warning in writing from the department, specifying the violation and stating that a penalty will be imposed for the violation unless the permittee submits the following to the department in writing within five working days after receipt of the advance warning:

(a) A response certifying that the permitted facility is complying with applicable law;

(b) A proposal to bring the facility into compliance with applicable law that is acceptable to the department and that includes but is not limited to proposed compliance dates; or

(c) For a water quality permit violation, a request in writing to the department that the department follow the procedures prescribed under ORS 468B.032. Notwithstanding the requirement for a response to the department within five working days, the permittee may file a request under this paragraph within 20 days from the date of service of the notice.

(2) No advance notice shall be required under subsection (1) of this section if:

(a) The violation is intentional;

(b) The water or air violation would not normally occur for five consecutive days;

(c) The permittee has received prior advance warning of any violation of the permit within the 36 months immediately preceding the violation;

(d) The permittee is subject to the federal operating permit program under ORS 468A.300 to 468A.320 and violates any rule or standard adopted or permit or order issued under ORS chapter 468A and applicable to the permittee; or

(e) The requirement to provide such notice would disqualify a state program from federal approval or delegation. [1991 c.650 §9 (enacted in lieu of 468.125); 1993 c.790 §3; 1999 c.975 §4]

468.130 Schedule of civil penalties; rules; factors to be considered in imposing civil penalties. (1) The Environmental Quality Commission shall adopt by rule a schedule or schedules establishing the amount of civil penalty that may be imposed for a particular violation. Except as provided in ORS 468.140 (3), no civil penalty shall exceed $25,000 per day. Where the classification involves air pollution, the commission shall consult with the regional air quality control authorities before adopting any classification or schedule.

(2) In imposing a penalty pursuant to the schedule or schedules authorized by this section, the commission and regional air quality control authorities shall consider the following factors:

(a) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(b) Any prior violations of statutes, rules, orders and permits enforceable by the commission or by regional air quality control authorities.

(c) The economic and financial conditions of the person incurring a penalty.

(d) The gravity and magnitude of the violation.

(e) Whether the violation was repeated or continuous.

(f) Whether the cause of the violation was an unavoidable accident, negligence or an intentional act.

(g) The violator’s cooperativeness and efforts to correct the violation.

(h) Whether the violator gained an economic benefit as a result of the violation.

(i) Any relevant rule of the commission.

(3) The penalty imposed under this section may be remitted or mitigated upon such terms and conditions as the commission or regional authority considers proper and consistent with the public health and safety.

(4) The commission may by rule delegate to the Department of Environmental Quality, upon such conditions as deemed necessary, all or part of the authority of the commission provided in subsection (3) of this section to remit or mitigate civil penalties. [Formerly 449.970; 1977 c.317 §3; 1987 c.266 §2; 1991 c.650 §4; 2009 c.267 §8]

468.135 Imposition of civil penalties.

(1) Any civil penalty under ORS 468.140 shall be imposed in the manner provided in ORS 183.745.

(2) All penalties recovered under ORS 468.140 shall be paid into the State Treasury and credited to the General Fund, or in the event the penalty is recovered by a regional air quality control authority, it shall be paid into the county treasury of the county in which the violation occurred. [Formerly 449.973; 1989 c.706 §17; 1991 c.650 §6; 1991 c.734 §37]

468.140 Civil penalties for specified violations.

(1) In addition to any other penalty provided by law, any person who violates any of the following shall incur a civil penalty for each day of violation in the amount prescribed by the schedule adopted under ORS 468.130:

(a) The terms or conditions of any permit required or authorized by law and issued by the Department of Environmental Quality or a regional air quality control authority.

(b) Any provision of ORS 164.785, 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and 783.625 to 783.640 and ORS chapter 467 and ORS chapters 468, 468A and 468B.

(c) Any rule or standard or order of the Environmental Quality Commission adopted or issued pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and 783.625 to 783.640 and ORS chapter 467 and ORS chapters 468, 468A and 468B.

(d) Any term or condition of a variance granted by the commission or department pursuant to ORS 467.060.

(e) Any rule or standard or order of a regional authority adopted or issued under authority of ORS 468A.135.

(f) The financial assurance requirement under ORS 468B.390 and 468B.485 or any rule related to the financial assurance requirement under ORS 468B.390.

(2) Each day of violation under subsection (1) of this section constitutes a separate offense.

(3)(a) In addition to any other penalty provided by law, any person who intentionally or negligently causes or permits the discharge of oil or hazardous material into the waters of the state or intentionally or negligently fails to clean up a spill or release of oil or hazardous material into the waters of the state as required by ORS 466.645 shall incur a civil penalty not to exceed the amount of $100,000 for each violation.

(b) In addition to any other penalty provided by law, the following persons shall incur a civil penalty not to exceed the amount of $25,000 for each day of violation:

(A) Any person who violates the terms or conditions of a permit authorizing waste discharge into the air or waters of the state.

(B) Any person who violates any law, rule, order or standard in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and 783.625 to 783.640 and ORS chapters 468, 468A and 468B relating to air or water pollution.

(C) Any person who violates the provisions of a rule adopted or an order issued under ORS 459A.590.

(4) In addition to any other penalty provided by law, any person who violates the provisions of ORS 468B.130 shall incur a civil penalty not to exceed the amount of $1,000 for each day of violation.

(5) Subsection (1)(c) and (e) of this section does not apply to violations of motor vehicle emission standards which are not violations of standards for control of noise emissions.

(6) Notwithstanding the limits of ORS 468.130 (1) and in addition to any other penalty provided by law, any person who intentionally or negligently causes or permits open field burning contrary to the provisions of ORS 468A.555 to 468A.620 and 468A.992, 476.380 and 478.960 shall be assessed by the department a civil penalty of at least $20 but not more than $40 for each acre so burned. Any amounts collected by the department pursuant to this subsection shall be deposited with the State Treasurer to the credit of the General Fund and shall be available for general governmental expense. As used in this subsection, “open field burning” does not include propane flaming of mint stubble. [Formerly 449.993; 1975 c.559 §14; 1977 c.511 §5; 1979 c.353 §1; 1987 c.513 §1; 1989 c.268 §4; 1989 c.1042 §7; 1991 c.764 §6; 1997 c.473 §1; 2001 c.688 §7; 2009 c.267 §9; 2011 c.597 §209]

ORS Chapter 468A — Air Quality

As Effective on October 1, 2013

468A.025 Air purity standards; air quality standards; treatment and control of emissions; rules.

(1) By rule the Environmental Quality Commission may establish areas of the state and prescribe the degree of air pollution or air contamination that may be permitted therein, as air purity standards for such areas.

(2) In determining air purity standards, the commission shall consider the following factors:

(a) The quality or characteristics of air contaminants or the duration of their presence in the atmosphere which may cause air pollution in the particular area of the state;

(b) Existing physical conditions and topography;

(c) Prevailing wind directions and velocities;

(d) Temperatures and temperature inversion periods, humidity, and other atmospheric conditions;

(e) Possible chemical reactions between air contaminants or between such air contaminants and air gases, moisture or sunlight;

(f) The predominant character of development of the area of the state, such as residential, highly developed industrial area, commercial or other characteristics;

(g) Availability of air-cleaning devices;

(h) Economic feasibility of air-cleaning devices;

(i) Effect on normal human health of particular air contaminants;

(j) Effect on efficiency of industrial operation resulting from use of air-cleaning devices;

(k) Extent of danger to property in the area reasonably to be expected from any particular air contaminants;

(l) Interference with reasonable enjoyment of life by persons in the area which can reasonably be expected to be affected by the air contaminants;

(m) The volume of air contaminants emitted from a particular class of air contamination source;

(n) The economic and industrial development of the state and continuance of public enjoyment of the state’s natural resources; and

(o) Other factors which the commission may find applicable.

(3) The commission may establish air quality standards including emission standards for the entire state or an area of the state. The standards shall set forth the maximum amount of air pollution permissible in various categories of air contaminants and may differentiate between different areas of the state, different air contaminants and different air contamination sources or classes thereof.

(4) The commission shall specifically fulfill the intent of the policy under ORS 468A.010 (1)(a) as it pertains to the highest and best practicable treatment and control of emissions from stationary sources through the adoption of rules:

(a) To require specific permit conditions for the operation and maintenance of pollution control equipment to the extent the Department of Environmental Quality considers the permit conditions necessary to insure that pollution control equipment is operated and maintained at the highest reasonable efficiency and effectiveness level.

(b) To require typically achievable control technology for new, modified and existing sources of air contaminants or precursors to air contaminants for which ambient air quality standards are established, to the extent emission units at the source are not subject to other emission standards for a particular air contaminant and to the extent the department determines additional controls on such sources are necessary to carry out the policy under ORS 468A.010 (1)(a).

(c) To require controls necessary to achieve ambient air quality standards or prevent significant impairment of visibility in areas designated by the commission for any source that is a substantial cause of any exceedance or projected exceedance in the near future of national ambient air quality standards or visibility requirements.

(d) To require controls necessary to meet applicable federal requirements for any source.

(e) Applicable to a source category, contaminant or geographic area necessary to protect public health or welfare for air contaminants not otherwise regulated by the commission or as necessary to address the cumulative impact of sources on air quality.

(5) Rules adopted by the commission under subsection (4) of this section shall be applied to a specific stationary source only through express incorporation as a permit condition in the permit for the source.

(6) Nothing in subsection (4) of this section or rules adopted under subsection (4) of this section shall be construed to limit the authority of the commission to adopt rules, except rules addressing the highest and best practicable treatment and control.

(7) As used in this section, “typically achievable control technology” means the emission limit established on a case-by-case basis for a criterion contaminant from a particular emission unit in accordance with rules adopted under subsection (4) of this section. For an existing source, the emission limit established shall be typical of the emission level achieved by emission units similar in type and size. For a new or modified source, the emission limit established shall be typical of the emission level achieved by recently installed, well controlled new or modified emission units similar in type and size. Typically achievable control technology determinations shall be based on information known to the department. In making the determination, the department shall take into consideration pollution prevention, impacts on other environmental media, energy impacts, capital and operating costs, cost effectiveness and the age and remaining economic life of existing emission control equipment. The department may consider emission control technologies typically applied to other types of emission units if such technologies can be readily applied to the emission unit. If an emission limitation is not feasible, the department may require a design, equipment, work practice or operational standard or a combination thereof. [Formerly 449.785 and then 468.295; 1993 c.790 §1]

468A.055 Notice prior to construction of new sources; order authorizing or prohibiting construction; effect of no order; appeal.

(1) The Environmental Quality Commission may require notice prior to the construction of new air contamination sources specified by class or classes in its rules or standards relating to air pollution.

(2) Within 30 days of receipt of such notice, the commission may require, as a condition precedent to approval of the construction, the submission of plans and specifications. After examination thereof, the commission may request corrections and revisions to the plans and specifications. The commission may also require any other information concerning air contaminant emissions as is necessary to determine whether the proposed construction is in accordance with the provisions of ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B and applicable rules or standards adopted pursuant thereto.

(3) If the commission determines that the proposed construction is in accordance with the provisions of ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B and applicable rules or standards adopted pursuant thereto, it shall enter an order approving such construction. If the commission determines that the construction does not comply with the provisions of ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B and applicable rules or standards adopted pursuant thereto, it shall notify the applicant and enter an order prohibiting the construction.

(4) If within 60 days of the receipt of plans, specifications or any subsequently requested revisions or corrections to the plans and specifications or any other information required pursuant to this section, the commission fails to issue an order, the failure shall be considered a determination that the construction may proceed except where prohibited by federal law. The construction must comply with the plans, specifications and any corrections or revisions thereto or other information, if any, previously submitted.

(5) Any person against whom the order is directed may, within 20 days from the date of mailing of the order, demand a hearing. The demand shall be in writing, shall state the grounds for hearing and shall be mailed to the Director of the Department of Environmental Quality. The hearing shall be conducted pursuant to the applicable provisions of ORS chapter 183.

(6) The commission may delegate its duties under subsections (2) to (4) of this section to the Director of the Department of Environmental Quality. If the commission delegates its duties under this section, any person against whom an order of the director is directed may demand a hearing before the commission as provided in subsection (5) of this section.

(7) For the purposes of this section, “construction” includes installation and establishment of new air contamination sources. Addition to or enlargement or replacement of an air contamination source, or any major alteration or modification therein that significantly affects the emission of air contaminants shall be considered as construction of a new air contamination source. [Formerly 468.325; 1993 c.790 §4]

468A.070 Measurement and testing of contamination sources; rules.

(1) Pursuant to rules adopted by the Environmental Quality Commission, the Department of Environmental Quality shall establish a program for measurement and testing of contamination sources and may perform such sampling or testing or may require any person in control of an air contamination source to perform the sampling or testing, subject to the provisions of subsections (2) to (4) of this section. Whenever samples of air or air contaminants are taken by the department for analysis, a duplicate of the analytical report shall be furnished promptly to the person owning or operating the air contamination source.

(2) The department may require any person in control of an air contamination source to provide necessary holes in stacks or ducts and proper sampling and testing facilities, as may be necessary and reasonable for the accurate determination of the nature, extent, quantity and degree of air contaminants which are emitted as the result of operation of the source.

(3) All sampling and testing shall be conducted in accordance with methods used by the department or equivalent methods of measurement acceptable to the department.

(4) All sampling and testing performed under this section shall be conducted in accordance with applicable safety rules and procedures established by law. [Formerly 449.702 and then 468.340]

OREGON ADMINISTRATIVE RULES

CHAPTER 340

DEPARTMENT OF ENVIRONMENTAL QUALITY

DIVISION 11

RULES OF GENERAL APPLICABILITYAND ORGANIZATION

Rules of Practice and Procedure

340-011-0005

Definitions

Unless otherwise defined in this division, the words and phrases used in this division have the same meaning given them in ORS 183.310, the rules of the Office of Administrative Hearings, the Model Rules or other divisions in Oregon Administrative Rules, chapter 340, as context requires.

(1) "Commission" means the Environmental Quality Commission.

(2) "DEQ" means the Department of Environmental Quality.

(3) "Director" means the director of DEQ or the director's authorized delegates.

(4) " Rules of the Office of Administrative Hearings" means the Attorney General's Rules, OAR 137-003-0501 through 137-003-0700.

(5) “Model Rules” or “Uniform Rules” means the Attorney General’s Uniform and Model Rules of Procedure, OAR chapter 137, division 001 (excluding 137-001-0008 through 137-001-0009), chapter 137, division 003, and chapter 137, division 004, as in effect on January 1, 2006.

(6) "Participant" means the person named in the notice of a right to a contested case hearing and requested a hearing, a person granted either party or limited party status in the contested case under OAR 137-003-0535, an agency participating in the contested case under 137-003-0540, and DEQ.

(7) "Formal Enforcement Action" has the same meaning as defined in OAR 340, division 012.

Stat. Auth.: ORS 183.341 & 468.020

Stats. Implemented: ORS 183.341

Hist.: DEQ 69(Temp), f. & ef. 3-22-74; DEQ 72, f. 6-5-74, ef. 6-25-74; DEQ 78, f. 9-6-74, ef. 9-25-74; DEQ 122, f. & ef. 9-13-76; DEQ 25-1979, f. & ef. 7-5-79; DEQ 7-1988, f. & cert. ef. 5-6-88; DEQ 10-1997, f. & cert. ef. 6-10-97; DEQ 3-1998, f. & cert. ef. 3-9-98; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 10-2002, f. & cert. ef. 10-8-02; DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 5-2008, f. & cert. ef. 3-20-08; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0009

Incorporation of Attorney General’s Uniform and Model Rules

The following Attorney General’s Uniform and Model Rules of Procedure are adopted and incorporated into this Division, except as otherwise provided in this Chapter: OAR chapter 137, division 001 (excluding 137-001-0008 through 137-001-0009), OAR chapter 137, division 003, and OAR chapter 137, division 004, as in effect on January 1, 2006.

Stat. Auth.: ORS 468.020, 183.341, 183,452
Stats. Implemented: ORS 468A.020, 468.070, 468.090 - 0140, 183.341, 183.452
Hist.: DEQ 5-2008, f. & cert. ef. 3-20-08

Rulemaking

340-011-0010

Notice of Rulemaking

(1) Notice of intent to adopt, amend, or repeal any rule(s) shall be in compliance with applicable state and federal laws and rules, including ORS Chapter 183, (1) Notice of intent to adopt, amend, or repeal any rule(s) shall be in compliance with applicable state and federal laws and rules, including ORS Chapter 183, 468A.327 and sections (2) and (3) of this rule.

(2) To the extent required by ORS Chapter 183 or 468A.327, before adopting, amending or repealing any permanent rule, DEQ will give notice of the rulemaking:

(a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 14 days before a hearing;

(b) By providing a copy of the notice to persons on DEQ's mailing lists established pursuant to ORS 183.335(8), to the legislators specified in 183.335(15), and to the persons or association that requested the hearing (if any):

(A) At least 21 days before a hearing granted or otherwise scheduled pursuant to ORS 183.335(3); or

(B) At least 14 days before a hearing before the Commission if granted or otherwise scheduled under OAR 340-011-0029(3);

(c) In addition to the news media on the list referenced in (b), to other news media the Director may deem appropriate.

(3) In addition to meeting the requirements of ORS 183.335(1), the notice provided pursuant to section (1) of this rule shall contain the following:

(a) Where practicable and appropriate, a copy of the rule proposed to be adopted, amended or repealed with changes highlighted;

(b) Where the proposed rule is not set forth verbatim in the notice, a statement of the time, place, and manner in which a copy of the proposed rule may be obtained and a description of the subject and issues involved in sufficient detail to inform a person that the person’s interest may be affected;

(c) If a hearing has been granted or scheduled, whether the presiding officer will be the Commission, a member of the Commission, an employee of DEQ, or an agent of the Commission;

(d) The manner in which persons not planning to attend the hearing may offer for the record written comments on the proposed rule.

Stat. Auth.: ORS 183 & ORS 468, 468A.327
Stats. Implemented: ORS 183.025 & 183.335
Hist.: DEQ 69(Temp), f. & ef. 3-22-74; DEQ 72, f. 6-5-74, ef. 6-25-74; DEQ 122, f. & ef. 9-13-76; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2008, f. & cert. ef. 2-25-08; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0024

Rulemaking Process

The rulemaking process shall be governed by the Attorney General's Model Rules, OAR 137-001-0005 through 137-001-0060. As used in those rules, the terms, "agency," "governing body," and "decision maker" generally should be interpreted to mean "Commission." The term "agency" may also be interpreted to be the "DEQ" where context requires.

Stat. Auth.: ORS 183 & ORS 468
Stats. Implemented: ORS 183.025 & ORS 183.335
Hist.: DEQ 7-1988, f. & cert. ef. 5-6-88 (and corrected 9-30-88); DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0029

Policy on Disclosure of the Relationship Between Proposed Rules and Federal Requirements

(1) In order to clearly identify the relationship between the proposed adoption, amendment or repeal of rules and applicable federal requirements, and to facilitate consideration and rulemaking by the Environmental Quality Commission, DEQ, must:

(a) Prepare a statement of whether the intended action imposes requirements different from, or in addition to, any applicable federal requirements and, if so, a written explanation of:

(A) The public health, environmental, scientific, economic, technological, administrative or other reasons, as appropriate, for differing from or adding to applicable federal requirements; and

(B) Alternatives considered, if any, and the reasons that the alternatives were not pursued.

(b) Include the statement in the notice of intended action pursuant to ORS 183.335(1) and any additional notice given prior to a rulemaking hearing pursuant to OAR 340-011-0010(2).

(c) Include the statement in the final staff report presented to the Commission when rule adoption, amendment or repeal is recommended.

(2) The statement prepared under section (1)(a) of this rule must be based upon information available to DEQ at the time the statement is prepared.

(3) An opportunity for an oral hearing before the Commission regarding the statement prepared under section (1)(a) of this rule must be granted, and notice given in accordance with OAR 340-011-0010(2)(b)(B), if:

(a) The rulemaking proposal applies to a source subject to the Oregon Title V Operating Permit Fees under OAR 340 Division 220;

(b) The request for a hearing is received within 14 days after the notice of intended action is issued under ORS 183.335(1), from 10 persons or from an association having no fewer than 10 members;

(c) The request describes how the persons or association that made the request will be directly harmed by the rulemaking proposal; and

(d) The notice of intended action under ORS 183.335(1) does not indicate that an oral hearing will be held before the Commission.

(4) Nothing in this rule applies to temporary rules adopted pursuant to OAR 340-011-0042.

(5) The Commission delegates to DEQ the authority to prepare and issue any statement required under ORS 468A.327.

Stat. Auth.: ORS 468.020, ORS 468A.327
Stats. Implemented: ORS 183.025 & 183.335
Hist.: DEQ 28-1994, f. & cert. ef. 11-17-94; DEQ 1-2008, f. & cert. ef. 2-25-08; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0046

Petition to Promulgate, Amend, or Repeal Rule: Contents of Petition, Filing of Petition

The filing of petitions for rulemaking and action thereon by the Commission shall be in accordance with the Attorney General's Uniform Rule of Procedure set forth in OAR 137-001-0070. As used in that rule, the term "agency" generally refers to the Commission but may refer to DEQ if context requires.

Stat. Auth.: ORS 183.335 & ORS 468.020
Stats. Implemented: ORS 183.390
Hist.: DEQ 7-1988, f. & cert. ef. 5-6-88; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0052

Temporary Rules

The Commission may adopt temporary rules and file the same, along with supportive findings, pursuant to ORS 183.335(5) and 183.355(2) and the Attorney General's Model rule OAR 137-001-0080.

Stat. Auth.: ORS 183.335 & ORS 468.020
Stats. Implemented: ORS 183.025 & ORS 183.335
Hist.: DEQ 122, f. & ef. 9-13-76; DEQ 7-1988, f. & cert. ef. 5-6-88

340-011-0053

Periodic Rule Review

Periodic review of agency rules shall be accomplished once every five years in accordance with ORS 183.405 and the Attorney General's Model Rule OAR 137-001-0100.

Stat. Auth.: ORS 183.335 & ORS 468.020
Stats. Implemented: ORS 183.540 & ORS 545 &ORS 550
Hist.: DEQ 7-1988, f. & cert. ef. 5-6-88; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0061

Declaratory Ruling: Institution of Proceedings, Consideration of Petition and Disposition of Petition

The declaratory ruling process shall be governed by the Attorney General's Uniform Rules of Procedure, OAR 137-002-0010 through 137-002-0060. As used in those rules, the terms "agency," "governing body, and "decision maker" generally should be interpreted to mean "Commission." The term "agency" may also be interpreted to be the "DEQ" where context requires.

Stat. Auth.: ORS 183.335 & ORS 468.020
Stats. Implemented: ORS 183.410
Hist.: DEQ 7-1988, f. & cert. ef. 5-6-88; DEQ 1-2014, f. & cert. ef. 1-6-14

Public Records Access and Reproduction

340-011-0310

Purpose

Increased public involvement and awareness of environmental issues has placed greater demands on viewing and copying DEQ records. OAR 340-011-0310 et seq. allows DEQ to recover its costs for providing these services, as authorized by Oregon statute. Furthermore, these rules serve to ensure that all DEQ records remain available for viewing and intact for future use.

Stat. Auth.: ORS 192.410 - ORS 192.505 & ORS 468.020
Stats. Implemented: ORS 192.410 - ORS 192.440
Hist.: DEQ 23-1994, f. & cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0320

Scope

With some exceptions prescribed by law, every person has the right to inspect public records of a state agency in this state. State agencies are allowed to take reasonable measures to ensure the integrity of records and to maintain office efficiency. The ability of the public to view public records is limited by reasonable restrictions and other such exemptions from disclosure that may be prescribed by law or rule. Statutory guidance for this rule includes: ORS 468.020; ORS 192.410 to 192.505.

Stat. Auth.: ORS 192.410 - ORS 192.505 & ORS 468.020
Stats. Implemented: ORS 192.410 - ORS 192.505
Hist.: DEQ 23-1994, f. & cert. ef. 10-21-94

340-011-0330

Requests for Review or to Obtain Copies of Public Records

(1) The right to review records includes the right to review the original record where practicable. It does not provide the right to the requestor to locate the record himself or to review the original record when it contains exempt material.

(2) Request to review or copy public records should be made to, and will be handled by, the appropriate DEQ staff maintaining the records requested. For questions, contact DEQ's general information number listed in the phone book and website at www.oregon.gov/deq.

(3) Requests for DEQ records should be as specific as possible, including type of record, subject matter, approximate record date, and relevant names of parties. Whenever possible, the request should include the site location or county of the facility if known. If the request is unclear or overly burdensome, DEQ may request further clarification of the request. If DEQ cannot identify specific records responsive to a record request, DEQ may provide general files or distinct sections of records that are likely to contain the requested records.

(4) Requests to either review or obtain copies of records may be made in writing, by telephone or in-person. DEQ may require a request to be made in writing if needed for clarification or specification of the record request.

(a) Each DEQ office will establish daily hours during which the public may review DEQ's records. The hours maintained in each office will be determined by staff and equipment available to accommodate record review and reproduction.

(b) Pursuant to ORS 192.430(1) and this rule, each DEQ office shall designate and provide a supervised space, if available, for viewing records. This space will accommodate at least one reviewer at a time.

(c) DEQ accommodates public records requests from persons with disabilities in accordance with the Americans with Disabilities Act.

(d) DEQ's ability to accommodate in-person requests may be limited by staff and equipment availability. Additionally prior to making records available for public review, DEQ will ascertain whether the record requested is exempt from public disclosure under ORS chapter 192 and other applicable law.

(5) Time to provide requested records: DEQ will respond to a record request as quickly as reasonable. This time frame will vary depending on the volume of records requested, staff availability to respond to the record request, the difficulty in determining whether any of the records are exempt from disclosure, and the necessity of consulting with legal counsel. If DEQ determines that it will require more than 30 days to respond to a record request, it will inform the requestor of the estimated time necessary to comply with the record request.

Stat. Auth.: ORS 192.410 - ORS 192.505 & ORS 468.020
Stats. Implemented: ORS 192.420 & ORS 192.430
Hist.: DEQ 23-1994, f. & cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0340

Costs for Record Review and Copying

(1) Outside Copying/Loaning Records — In order to protect the integrity of DEQ records, no records may be loaned or taken off-premises by non- DEQ staff unless DEQ has a contract with the person removing the records.

(2) Hardcopy Records:

(a) Persons Requesting to Make Copies Themselves: Requestors are allowed to use their own equipment to make copies of requested records depending on the facilities available within each DEQ office. Use of non-DEQ equipment within a DEQ office will not be allowed without staff being present. Staff time will be charged at $30.00 per hour. DEQ office may determine that use of non-DEQ equipment will not be allowed based on:

(A) Staff time available to oversee the copying; and

(B) Space limitations for the equipment.

(b) Reimbursement of DEQ staff time: An hourly rate of $30.00 will be assessed for any staff time greater than 15 minutes spent locating records, reviewing records to delete exempt material, supervising the inspection of records, copying records, certifying records, and mailing records. DEQ may charge for the cost of searching for records regardless of whether DEQ was able to locate the requested record.

(c) Reimbursement of Department of Justice Attorney General time: If necessary to respond to a record request, an hourly rate (as of August 2013, $159 for attorneys, $79 for paralegals) will be assessed for any Department of Justice time spent reviewing records to delete exempt material.

(d) Copy Charges: The fee schedule listed below is reasonably calculated to reimburse DEQ for the actual costs of making records available and providing copies of records. The per-page copy charge includes 15 minutes of staff time for routine file searches.

(A) Department Administrative Rule sets:

(i) Complete set: $35.00;

(ii) Update Service: $115.00 (per annum);

(iii) Individual Divisions: $0.05 (per page).

(B) Hardcopy (black and white, letter or legal size): $0.25 per page. Costs for other sized or color copies will be DEQ's actual cost plus staff time.

(C) Additional charges:

(i) Fax charges: $0.50 (per page);

(ii) Document certification: $2.50 (per certificate);

(iii) Invoice processing: $5.00 (per invoice);

(iv) Express Mailing: actual or minimum of $9.00;

(v) Archive Retrieval: actual or minimum of $10.00;

(vi) Onsite wastewater management program public record request: $7.50 base fee.

(e) Whenever reasonable, DEQ will provide double-sided copies of a record request. Each side of a double-sided copy will constitute one page.

(3) Electronic Records:

(a) Copies of requested electronic records may be provided in the format or manner maintained by DEQ. DEQ will perform all downloading, reproducing, formatting and manipulating of records. Public access to DEQ computer terminals may be possible as such terminals become available in the future.

(b) Reimbursement of DEQ staff time: An hourly rate of $40.00 will be assessed for any staff time spent locating records, reviewing records to delete exempt material, supervising the inspection of records, downloading and manipulating records, certifying records and mailing records. DEQ may charge for the cost of searching for records regardless of whether DEQ was able to locate the requested records.

(c) Reimbursement of Department of Justice Attorney General time: If necessary to respond to a record request, an hourly rate (as of August 2013, $159 for attorneys, $79 for paralegals)will be assessed for any Department of Justice time spent reviewing records to delete exempt material.

(d) Hardcopy printouts (black and white; legal or letter size): $0.25 per page. Costs for other sized or color copies will be DEQ's actual cost plus staff time.

(e) Compact disks (CDs) and digital video disks (DVDs): $3.00 each.

(f) Additional charges:

(A) Fax charges: $0.50 (per page);

(B) Document certification: $2.50 (per certificate);

(C) Invoice processing: $5.00 (per invoice);

(D) Express Mailing: actual or minimum of $9.00;

(E) Archive Retrieval: actual or minimum of $10.00.

Stat. Auth.: ORS 192.410 - ORS 192.505 & ORS 468.020
Stats. Implemented: ORS 192.440
Hist.: DEQ 23-1994, f. & cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0360

Collecting Fees

(1) Method: Payment may be made in the form of cash, check, or money order. Make checks payable to "Department of Environmental Quality."

(2) Billing: Requestors wishing to be billed may make such arrangements at the time of record request. Purchase orders will only be accepted for orders $10.00 or more.

(3) Receipts: A receipt may be given, upon request, for charges incurred.

(4) Reasonable costs associated with responding to a request to review or copy a record not specifically addressed by these rules may be assessed including the actual costs for DEQ to have another person make copies of the records.

(5) Prepayment of Copy Costs: Depending on the volume of the records requested, the difficulty in determining whether any of the records are exempt from disclosure, and the necessity of consulting with legal counsel, DEQ may preliminarily estimate the charges for responding to a record request and require prepayment of the estimated charges. If the actual charges are less than the prepayment, any overpayment will be refunded to the requestor.

Stat. Auth.: ORS 192.410 - ORS 192.505 & ORS 468.020
Stats. Implemented: ORS 192.440
Hist.: DEQ 23-1994, f. & cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0370

Certification of Copies of Records

Certification of both hard and electronic copies of records will be provided. DEQ will only certify that on the date copied, the copy was a true and correct copy of the original record. DEQ cannot certify as to any subsequent changes or manipulation of the record.

Stat. Auth.: ORS 192.410 - ORS 192.505 & ORS 468.020
Stats. Implemented: ORS 192.440
Hist.: DEQ 23-1994, f. & cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0380

Fee Waivers and Reductions

(1) Ordinarily there will be no charge for one copy of a public record:

(a) When the material requested is currently being distributed as part of the public participation process such as a news release or public notice.

(b) When the material requested has been distributed through mass mailing and is readily available to DEQ at the time of request.

(c) When the records request is made by a local, state, or federal public/governmental entity or a representative of a public/governmental entity acting in a public function or capacity. Even if a person qualifies under this subsection, DEQ may still charge for either record review or copying based on the following factors:

(A) Any financial hardship on DEQ;

(B) The extent of time, expense and interference with DEQ's regular business;

(C) The volume of the records requested; or

(D) The necessity to segregate exempt from non-exempt materials.

(2) Public Interest Annual Fee Waivers:

(a) An approved annual fee waiver allows the requestor to either review or obtain one copy of a requested record at no charge. Fee waivers are effective for a one year period.

(b) A person including members of the news media and non-profit organizations may be entitled to an annual fee waiver provided that a Fee Waiver Form is completed and approved by DEQ. The form must identify the person's specific ability to disseminate information of the kind maintained by DEQ to the general public and that such information is generally in the interest of and benefit to the public within the meaning of the Public Records Law. Additional information may be requested by DEQ prior to granting any fee waiver.

(c) Even if a person has a fee waiver, DEQ may charge for either record review or copying based on the following factors:

(A) Any financial hardship on DEQ;

(B) The extent of time, expense and interference with DEQ's regular business;

(C) The volume of the records requested;

(D) The necessity to segregate exempt from non-exempt materials; and

(E) The extent to which the record request does not further the public interest or the particular needs of the requestor.

(3) Case-by-Case Waivers or Reductions: A person that does not request, or is not approved for an annual waiver, may request a waiver or a reduction of record review or reproduction costs on a case-by-case basis.

Stat. Auth.: ORS 192.410 - ORS 192.505 & ORS 468.020
Stats. Implemented: ORS 192.440
Hist.: DEQ 23-1994, f. & cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0390

Exempt Records

All records held by DEQ are public records unless exempt from disclosure under ORS Chapter 192 or other applicable law. If DEQ determines that all or part of a requested public record is exempt from disclosure, DEQ will notify the requestor and the reasons why DEQ considers the record exempt.

Stat. Auth.: ORS 192.410 - 192.505 & 468.020 


Stats. Implemented: ORS 192.501 & 192.502 


Hist.: DEQ 23-1994, f. & cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. & cert. ef. 1-6-14

Contested Cases

340-011-0500

Contested Case Proceedings Generally

Except as otherwise provided in OAR 340, division 011, contested cases will be governed by the Rules of the Office of Administrative Hearings, specifically OAR 137-003-0501 through 0700.

Stat. Auth.: ORS 183.341 & 468.020 


Stats. Implemented: ORS 183.341 


Hist.: DEQ 7-1988, f. & cert. ef. 5-6-88; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0098 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0505

Powers of the Director

The director, on behalf of the Commission, may execute

(1) Any written order which has been consented to in writing by the participants;

(2) Formal enforcement actions;

(3) Orders upon default; and

(4) Any other final order implementing any action taken by the Commission on any matter.

Stat. Auth.: ORS 183.335 and ORS 468.020
Stats. Implemented: ORS 468.045 and 468.130
Hist.: DEQ 122, f. & ef. 9-13-76; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 360-011-0136 by DEQ 18-2003, f. & cert. ef. 12-12-03

340-011-0510

Agency Representation by Environmental Law Specialist

(1) Environmental Law Specialists, and other DEQ personnel as approved by the director, are authorized to appear on behalf of DEQ and commission in contested case hearings involving formal enforcement actions issued under OAR 340, division 012, and issuance, revocation, modification, or denial of licenses, permits, certifications, or other authorizations, including general permit coverage or registrations.

(2) Environmental Law Specialists or other approved personnel may not present legal argument as defined under OAR 137-003-0545 on behalf of DEQ or commission in contested case hearings.

(3) When DEQ determines it is necessary to consult with the Attorney General's office, an administrative law judge will provide a reasonable period of time for an agency representative to consult with the Attorney General's office and to obtain either written or oral legal argument.

Stat. Auth.: ORS 183.341, 183.452 & 468.020
Stats. Implemented: ORS 183.452
Hist.: DEQ 16-1991, f. & cert. ef. 9-30-91; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0103 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 5-2008, f. & cert. ef. 3-20-08; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0515

Authorized Representative of Respondent other than a Natural Person in a Contested Case Hearing

A corporation, partnership, limited liability company, unincorporated association, trust and government body may be represented by either an attorney or an authorized representative in a contested case hearing before an administrative law judge or the commission to the extent allowed by OAR 137-003-0555.

Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.457
Hist.: DEQ 6-2002(Temp), f. & cert. ef. 4-24-02, thru 10-21-02; DEQ 10-2002, f. & cert. ef. 10-8-02; Renumbered from 340-011-0106 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 5-2008, f. & cert. ef. 3-20-08; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0520

Liability for the Acts of a Person's Employees

A person is legally responsible for not only its direct acts but also the acts of its employee when the employee is acting within the scope of the employment relationship, regardless of whether the person expressly authorizes the act in question. The mental state ("M" factor under OAR 340-012-0145) of an employee can be imputed to the employer. Nothing in this rule prevents DEQ from issuing a formal enforcement action to an employee for violations occurring during the scope of the employee's employment.

Stat. Auth.: ORS 183.341 & ORS 468.020
Stat. Implemented: ORS 468.005, 468.130 & 468.140
Hist.: DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0525

Service of Documents

(1) Service will be made either personally or by certified mail. Service is perfected when received by the named person, if by personal service, or when mailed, if sent by mail. Service may be made upon:

(a) The named person;

(b) Any other person designated by law as competent to receive service of a summons or notice for that person; or

(c) The person's attorney or other authorized representative.

(2) A person holding a license or permit issued by DEQ or commission, or who has submitted an application for a license or permit, will be conclusively presumed able to be served at the address given in the license or permit application, as it may be amended from time to time.

(3) Filing of a document can be accomplished by personal service, facsimile, mail or electronically. A participant filing any document shall at the same time, provide a copy of the document to all other participants.

(4) Regardless of other provisions in this rule, documents served or filed by DEQ or commission through the U.S. Postal Service by regular mail to a person's last known address are presumed to have been received, subject to evidence to the contrary.

Stat. Auth.: ORS 183.341 & ORS 468.020
Stats. Implemented: ORS 183.413 & ORS 183.415
Hist.: DEQ 78, f. 9-6-74, ef. 9-25-74; DEQ 122, f. & ef. 9-13-76; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0097 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0530

Requests for Hearing

(1) Unless a request for hearing is not required by statute or rule, or the requirement to file a request for hearing is waived in the formal enforcement action, a person has 20 calendar days from the date of service of the notice of a right to a contested case hearing in which to file a written request for hearing unless another timeframe is allowed by statute or rule.

(2) The request for hearing must include a written response that admits or denies all factual matters alleged in the notice, and alleges any and all affirmative defenses and the reasoning in support thereof. Due to the complexity, factual matters not denied will be considered admitted, and failure to raise a defense will be a waiver of the defense. New matters alleged in the request for hearing are denied by DEQ unless admitted in subsequent stipulation.

(3) An amended request for hearing may be accepted by DEQ if DEQ determines that the filing of an amended request will not unduly delay the proceeding or unfairly prejudice the participants. The participant must provide DEQ with a written explanation why an amended request for hearing is needed.

(4) A late request for hearing will be accepted by DEQ if:

(a) The request is postmarked within 20 calendar days of service of the notice, and;

(b) DEQ receives the late request for hearing within 60 days of the date the notice became final upon default.

(5) A late request for hearing may be accepted by DEQ if:

(a) Either the request is received by DEQ before entry of a default order or within 60 days of the date the notice became final upon default, and;

(b) There was good cause for the failure to timely request a hearing.

(6) The person must provide DEQ with a written explanation why the request for hearing was late. If the person fails to provide the written explanation, DEQ must not accept the late request for hearing. DEQ may require that the explanation be supported by an affidavit.

(7) The filing of a late request for hearing does not stay the effect of any final order.

(8) DEQ will deny a late request for hearing that is filed more than 60 days after the notice became final by default.

Stat. Auth.: ORS 183.341 & ORS 468.020
Stats. Implemented: ORS 183.415, 183.464, 183.482 & ORS 183.484
Hist.: DEQ 78, f. 9-6-74, ef. 9-25-74; DEQ 122, f. & ef. 9-13-76; DEQ 7-1988, f. & cert. ef. 5-6-88; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0107 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0535

Final Orders by Default

(1) If a person fails to request a hearing within the time allowed and no further evidence is necessary to make a prima facie case, the notice of a right to a contested case hearing will become final by operation of law as provided in OAR 137-003-0672.

(2) If the person fails to request a hearing within the time allowed and DEQ determines that evidence, in addition to the evidence in DEQ's record, is necessary to make a prima facie case, DEQ will proceed to a contested case hearing for the purpose of establishing a prima facie case.

(3) If the participant files a timely request for hearing but either: withdraws the request; or, after being provided notice of the time and place of the hearing, either fails to appear at a hearing or notifies either the administrative law judge or DEQ, in writing, that the participant does not intend to appear at the hearing, DEQ will enter and serve a final order by default.

(4) If more than one person is named in the notice of a right to a contested case hearing and any person defaults as provided in this rule, the notice will become final as it pertains to any person in default.

Stat. Auth.: ORS 183.335 & ORS 468.020
Stat. Impl.: ORS 183.415 & ORS 183.090
Hist.: DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0540

Consolidation or Bifurcation of Contested Case Hearings

Proceedings for the assessment of multiple civil penalties for multiple violations may be consolidated into a single proceeding or bifurcated into separate proceedings, at DEQ's discretion. Additionally, DEQ, at its discretion, may consolidate or bifurcate contested case hearings involving the same fact or set of facts constituting the violation.

Stat. Author ORS 183.341 & ORS 468.020
Stat. Implemented: ORS 183.415
Hist.: DEQ 78, f. 9-6-74, ef. 9-25-74; DEQ 21-1992, f. & cert. ef. 8-11-92; Renumbered from 340-012-0035 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0545

Burden and Standard of Proof in Contested Case Hearings; DEQ Interpretation of Rules and Statutory Terms

(1) The participant who asserts a fact or position is the proponent of that fact or position and has the burden of presenting evidence to support that fact or position, unless the burden is specifically allocated differently by a statute or rule.

(2) All findings in a proposed or final order must be based on a preponderance of evidence in the record unless another standard is specifically required by statute or rule.

(3) In reviewing DEQ's interpretation of a DEQ rule as applied in a formal enforcement action, an administrative law judge must follow DEQ's interpretation if that interpretation is both plausible and reasonably consistent with the wording of the rule and the underlying statutes. The administrative law judge may state, on the record, an alternative interpretation for consideration on appeal.

(4) With the exception of exact terms that do not require interpretation, an administrative law judge shall give DEQ's interpretation of statutory terms the appropriate deference in light of DEQ's expertise with the subject matter, DEQ's experience with the statute, DEQ's involvement in the relevant legislative process, and the degree of discretion accorded DEQ by the legislature.

Stat. Author ORS 183.341 & ORS 468.020
Stat. Implemented: ORS 183.450
Hist.: DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0550

Discovery

(1) Motions for discovery will only be granted if the motion establishes that:

(a) the participant seeking the information attempted to obtain the information through an informal process. If the participant is seeking information from a public agency, the participant must make a public record request prior to petitioning for discovery; and

(b) the discovery request is reasonably likely to produce information that is generally relevant and necessary to the matters alleged in the formal enforcement action and the request for hearing or is likely to facilitate resolution of the case.

(2) An administrative law judge is not authorized to order depositions or site visits unless the department authorizes the same in writing in the specific case.

Stat. Author ORS 183.341 & ORS 468.020
Stat. Implemented: ORS 183.425, 183.440 & 183.450
Hist.: DEQ 18-2003, f. & cert. ef. 12-12-03

340-011-0555

Subpoenas

(1) Subpoenas for the attendance of witnesses or production of documents at a contested case hearing will be issued in accordance with OAR 137-003-0585.

(2) Copies of the subpoena must be provided to the administrative law judge and all participants at the time of service to the person to whom the subpoena is issued.

(3) Service of a subpoena for the attendance of a witness must be completed by personal service unless the witness has indicated that he is willing to appear and the subpoena is mailed at least 10 days prior to the hearing. Personal service should be effected at least 7 days prior to the hearing.

(4) Service of a subpoena for the production of documents at a contested case hearing may be effected by regular mail provided that it is done sufficiently in advance of the hearing to allow reasonable time to produce the documents.

(5) Service of a subpoena for both the attendance of a witness and production of documents must be completed as provided under section (3) of this rule.

(6) Any witness who appears at a hearing under a subpoena will receive fees and mileage as set forth in ORS 44.415(2).

Stat. Author ORS 183.341 & ORS 468.020
Stat. Implemented: ORS 183.425, 183.440 &468.120
Hist.: DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0560

Public Attendance at Contested Case Hearing

An administrative law judge may close a contested case hearing to the public upon the request of a participant in the contested case hearing.

Stat. Auth.: ORS 183.341 & ORS 468.020
Stats. Implemented: ORS 183.341
Hist.: DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0122 by DEQ 18-2003, f. & cert. ef. 12-12-03

340-011-0565

Immediate Review

Immediate review under OAR 137-003-0640 is not allowed.

Stat. Auth.: ORS 183.341 & ORS 468.020
Stats. Implemented: ORS 183.341
Hist.: DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0124 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0570

Permissible Scope of Hearing

(1) The scope of a contested case hearing will be limited to those matters that are relevant and material to either proving or disproving the matters alleged in the notice and request for hearing. Equitable remedies will not be considered by an administrative law judge.

(2) The administrative law judge may not reduce or mitigate a civil penalty below the amount established by the application of the civil penalty formula contained in OAR 340, division 12.

Stat. Auth.: ORS 183.341 & ORS 468.020
Stats. Implemented: ORS 183.450 & ORS 468.130
Hist.: DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0131 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0573

Proposed Orders in Contested Cases

(1) Following the close of the record for a contested case hearing, the administrative law judge will issue a proposed order. The administrative law judge will serve the proposed order on each participant.

(2) Within 15 days after a proposed contested case order is served, a participant in the contested case hearing may file a motion requesting that the administrative law judge clarify or supplement a proposed order. The motion must specify why the participant believes that the proposed order fails to conform to the requirements of OAR 137-003-0645 and recommend changes to the order. The motion must be filed with the administrative law judge and a copy provided to all participants.

(3) The administrative law judge may grant or deny a motion filed under section (2) of this rule within 15 days. If the motion is granted, the administrative law judge may take the matter under advisement and reissue the proposed order unchanged or may issue an amended proposed order. If the administrative law judge fails to act on the motion within 15 days, the motion is deemed denied by operation of law.

(4) The filing of a timely motion for clarification under section (2) of this rule tolls the period for filing a Petition for Commission Review of the proposed contested case order under OAR 340-011-0575. Tolling of the period begins on the day the motion is filed with the administrative law judge and ends on the day the motion is denied, deemed denied by operation of law, or the proposed order is reissued without changes. If the administrative law judge issues an amended proposed order, the amended order will be treated as a new proposed order for the purpose of filing a timely Petition for Commission Review under 340-011-0575.

(5) The motion for clarification authorized by this rule is intended to alter the provisions of OAR 137-003-0655 but not to eliminate the authority of the administrative law judge to correct a proposed order in the manner specified in section (2) of that rule.

(6) A motion for clarification and any response to a motion for clarification will be part of the record on appeal.

Stat. Auth.: ORS 468.020, 183.341, 183,452
Stats. Implemented: ORS 468A.020, 468.070, 468.090 - 0140, 183.341, 183.452
Hist.: DEQ 5-2008, f. & cert. ef. 3-20-08; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0575

Review of Proposed Orders in Contested Cases

(1) For purposes of this rule, filing means receipt in the office of the director or other office of DEQ.

(2) Commencement of Review by the Commission: The proposed order will become final unless a participant or a member of the commission files a Petition for Commission Review within 30 days of service of the proposed order. The timely filing of a Petition is a jurisdictional requirement and cannot be waived. Any participant may file a petition whether or not another participant has filed a petition.

(3) Contents of the Petition for Commission Review. A petition must be in writing and need only state the participant's or a commissioner's intent that the commission review the proposed order. Each petition and subsequent brief must be captioned to indicate the participant filing the document and the type of document (for example: Respondents Exceptions and Brief; DEQ's Answer to Respondent's Exceptions and Brief).

(4) Procedures on Review:

(a) Exceptions and Brief: Within 30 days from the filing of a petition, the participant(s) filing the petition must file written exceptions and brief. The exceptions must specify those findings and conclusions objected to, and also include proposed alternative findings of fact, conclusions of law, and order with specific references to the parts of the record upon which the participant relies. The brief must include the arguments supporting these alternative findings of fact, conclusions of law and order. Failure to take an exception to a finding or conclusion in the brief, waives the participant's ability to later raise that exception.

(b) Answering Brief: Each participant, except for the participant(s) filing that exceptions and brief, will have 30 days from the date of filing of the exceptions and brief under subsection (4)(a), in which to file an answering brief.

(c) Reply Brief: If an answering brief is filed, the participant(s) who filed a petition will have 20 days from the date of filing of the answering brief under subsection (4)(b), in which to file a reply brief.

(d) Briefing on Commission Invoked Review: When one or more members of the commission wish to review the proposed order, and no participant has timely filed a Petition, the chair of the commission will promptly notify the participants of the issue that the commission desires the participants to brief. The participants must limit their briefs to those issues. The chair of the commission will also establish the schedule for filing of briefs. When the commission wishes to review the proposed order and a participant also requested review, briefing will follow the schedule set forth in subsections (a), (b) and (c) of this section.

(e) Extensions: The commission or director may extend any of the time limits contained in section (4) of this rule. Each extension request must be in writing and filed with the commission before the expiration of the time limit. Any request for an extension may be granted or denied in whole or in part.

(f) Dismissal: The commission may dismiss any petition, upon motion of any participant or on its own motion, if the participant(s) seeking review fails to timely file the exceptions or brief required under subsection (4)(a) of this rule. A motion to dismiss made by a participant must be filed within 45 days after the filing of the Petition. At the time of dismissal, the commission will also enter a final order upholding the proposed order.

(g) Oral Argument: Following the expiration of the time allowed the participants to present exceptions and briefs, the matter will be scheduled for oral argument before the commission.

(5) Additional Evidence: A request to present additional evidence must be submitted by motion and must be accompanied by a statement showing good cause for the failure to present the evidence to the administrative law judge. The motion must accompany the brief filed under subsection (4)(a) or (b) of this rule. If the commission grants the motion or decides on its own motion that additional evidence is necessary, the matter will be remanded to an administrative law judge for further proceedings.

(6) Scope of Review: The commission may substitute its judgment for that of the administrative law judge in making any particular finding of fact, conclusion of law, or order except as limited by ORS 183.650 and OAR 137-003-0665.

(7) All documents filed with the commission under this rule must also be copied upon each participant in the contested case hearing.

Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.460, 183.464 & 183.470
Hist.: DEQ 78, f. 9-6-74, ef. 9-25-74; DEQ 115, f. & ef. 7-6-76; DEQ 25-1979, f. & ef. 7-5-79; DEQ 7-1988, f. & cert. ef. 5-6-88; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0132 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 5-2008, f. & cert. ef. 3-20-08; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0580

Petitions for Reconsideration or Rehearing

(1) A participant is not required to seek either reconsideration or rehearing of a final order prior to seeking judicial review.

(2) Any petition for reconsideration or rehearing must be received by DEQ within 60 days of service of the final order. Unless specifically set forth in this rule, the procedures for petitions for reconsideration or rehearing are those in OAR 137-003-0675.

(3) A petition for reconsideration or rehearing does not stay the effect of the final order.

(4) The director, on behalf of the commission, shall issue orders granting or denying petitions for reconsideration and rehearing.

Stat. Auth.: ORS 183.341 and 468.020
Stats. Implemented: ORS 183.480 and ORS 183.482
Hist.: DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

340-011-0585

Petitions for a Stay of the Effect of a Final Order

(1) A petition to stay the effect of any final order must be received by DEQ within 60 days of service of the final order. Unless specifically set forth in this rule, the procedures for petitions for a stay are those in OAR 137-003-0690 through 0700.

(2) If a participant submits a petition for reconsideration or rehearing or a late request for hearing, the petition for a stay must accompany that petition.

(3) A petition for a stay must contain all the elements set forth in OAR 137-003-0690 and be served upon all participants as set forth in 137-003-0690(4).

(4) Any participant may seek to intervene in the stay proceeding as set forth in OAR 137-003-0695 by filing a response to the petition for a stay with DEQ.

(5) The director, on behalf of the commission, shall issue an order granting or denying the petition for a stay within 30 days of receipt of the petition.

Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.480 & 183.482
Hist.: DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

DIVISION 212

STATIONARY SOURCE TESTING AND MONITORING

Sampling, Testing and Measurement

340-212-0120

Program

(1) As part of its coordinated program of air quality control and preventing and abating air pollution, DEQ may:

(a) Require the owner or operator of a stationary source to determine the type, quantity, quality, and duration of the emissions from any air contamination source;

(b) Require full reporting in writing of all test procedures and signed by the person or persons responsible for conducting the tests;

(c) Require continuous monitoring of specified air contaminant emissions or parameters and periodic regular reporting of the results of such monitoring.

(2) DEQ may require an owner or operator of a source to provide emission testing facilities as follows:

(a) Sampling ports, safe sampling platforms, and access to sampling platforms adequate for test methods applicable to such source; and

(b) Utilities for sampling and testing equipment.

(3) Testing must be conducted in accordance with the DEQ Source Sampling Manual, the DEQ Continuous Monitoring Manual, or an applicable EPA Reference Method unless DEQ, if allowed under applicable federal requirements:

(a) Specifies or approves minor changes in methodology in specific cases;

(b) Approves the use of an equivalent or alternative method as defined in division 200;

(c) Waives the testing requirement because the owner or operator has satisfied DEQ that the affected facility is in compliance with applicable requirements; or

(d) Approves shorter sampling times and smaller sample volumes when necessitated by process variables or other factors.

NOTE: This rule is included in the State of Oregon Clean Air Act Implementation Plan that EQC adopted under OAR 340-200-0040.

Stat. Auth.: ORS 468.020, 468A.050, 468A.055, 468A.070 & 468A.310
Stats. Implemented: ORS 468A.035, 468A.050, 468A.055, 468A.070 & 468A.310
Hist.: DEQ 15, f. 6-12-70, ef. 9-1-70; DEQ 4-1993, f. & cert. ef. 3-10-93; DEQ 12-1993, f. & cert. ef. 9-24-93; Renumbered from 340-020 0035; DEQ 19-1993, f. & cert. ef. 11-4-93; DEQ 14-1999, f. & cert. ef. 10-14-99, Renumbered from 340-028-1100; DEQ 6-2001, f. 6-18-01, cert. ef. 7-1-01; DEQ XX-XXXX, f. & cert. ef. XX-XX-XX

DEPARTMENT OF ENVIRONMENTAL QUALITY

DIVISION 214

STATIONARY SOURCE REPORTING REQUIREMENTS

Reporting

340-214-0110

Request for Information

All stationary sources must provide in a reasonably timely manner any and all information that DEQ reasonably requires for the purpose of regulating stationary sources. Such information may be required on a one-time, periodic, or continuous basis and may include, but is not limited to, information necessary to:

(1) Issue a permit and ascertain compliance or noncompliance with the permit terms and conditions;

(2) Ascertain applicability of any requirement;

(3) Ascertain compliance or noncompliance with any applicable requirement; and

(4) Incorporate monitoring, recordkeeping, reporting, and compliance certification requirements into a permit.

NOTE: This rule is included in the State of Oregon Clean Air Act Implementation Plan that EQC adopted under OAR 340-200-0040.

Stat. Auth.: ORS 468.020 & 468A
Stats. Implemented: ORS 468A.025 & 468A.050
Hist.: DEQ 12-1993, f. & cert. ef. 9-24-93; DEQ 19-1993, f. & cert. ef. 11-4-93; DEQ 14-1999, f. & cert. ef. 10-14-99, Renumbered from 340-028-0300; DEQ 6-2001, f. 6-18-01, cert. ef. 7-1-01; DEQ XX-XXXX, f. & cert. ef. XX-XX-XX

340-214-0114

Records; Maintaining and Reporting

(1) When notified by DEQ, any person owning or operating a source within the state must keep and maintain written records of the nature, type, and amounts of emissions from such source and other information DEQ may require in order to determine whether the source is in compliance with applicable emission rules, limitations, or control measures.

(2) The records must be prepared in the form of a report and submitted to DEQ on an annual, semi-annual, or more frequent basis, as requested in writing by DEQ. Submittals must be filed at the end of the first full period after DEQ’s notification to such persons owning or operating a stationary air contaminant source of these recordkeeping requirements. Unless otherwise required by rule or permit, semi-annual periods are Jan. 1 to Jun. 30, and Jul. 1 to Dec. 31. A more frequent basis for reporting may be required due to noncompliance or if necessary to protect human health or the environment.

(3) The required reports must be completed on forms approved by DEQ and submitted within 30 days after the end of the reporting period, unless otherwise authorized by permit.

(4) All reports and certifications submitted to DEQ under divisions 200 to 264 must accurately reflect the monitoring, record keeping and other documentation held or performed by the owner or operator.

(5) The owner or operator of any source required to obtain a permit under OAR 340 division 216 or 218 must retain records of all required monitoring data and supporting information for a period of at least five years from the date of the monitoring sample, measurement, report, or application. For the owner or operator of a source permitted under OAR 340 division 216, this requirement takes affect on July 1, 2015.

NOTE: This rule is included in the State of Oregon Clean Air Act Implementation Plan that EQC adopted under OAR 340-200-0040.

Stat. Auth.: ORS 468.020, 468A.050 & 468A.310
Stats. Implemented: ORS 468A.025, 468A.050 & 468A.310
Hist.: DEQ 44(Temp), f. & ef. 5-5-72; DEQ 48, f. 9-20-72, ef. 10-1-72; DEQ 4-1993, f. & cert. ef. 3-10-93; DEQ 12-1993, f. & cert. ef. 9-24-93, Renumbered from 340-020-0046; DEQ 19-1993, f. & cert. ef. 11-4-93; DEQ14-1999, f. & cert. ef. 10-14-99, Renumbered from 340-028-1140; DEQ 6-2001, f. 6-18-01, cert. ef. 7-1-01, Renumbered from 340-212-0160; DEQ XX-XXXX, f. & cert. ef. XX-XX-XX

340-214-0120

Enforcement

Notwithstanding any other provisions contained in any applicable requirement, any credible evidence may be used for the purpose of establishing whether a person has violated or is in violation of any such applicable requirements.

NOTE: This rule is included in the State of Oregon Clean Air Act Implementation Plan as adopted by the EQC under OAR 340-200-0040.

Stat. Auth.: ORS 468.035
Stats. Implemented: ORS 468.100
Hist.: DEQ 21-1998, f. & cert. ef. 10-14-98; DEQ 14-1999, f. & cert. ef. 10-14-99, Renumbered from 340-028-0310

Lane Regional Air Protection Agency

Rules and Regulations

Title 13 - General Duties and Powers of Board and Director

Section 13-005 Authority of the Agency

1.  The Lane Regional Air Protection Agency is a regional air quality control agency established under the provisions of, and with authority and powers derived from, Oregon Revised Statutes 468.500 et seq. Except as specifically retained by the Environmental Quality Commission, the Agency has the exclusive duty and responsibility within its territory for air quality control.

2.  In exercising this authority and power, the Agency:

a.  May adopt rules and standards necessary to carry out its functions as authorized by law.

b.  May enforce its rules and standards over both incorporated and unincorporated areas within the territory of the Agency, regardless of whether the governing body of a city within the territory of the Agency is participating in the regional authority.

c.  Shall enforce the rules and standards of the Environmental Quality Commission as required.

d.  Shall establish by rule standards for the entire territory or any area of the territory which set forth the maximum amount of air contaminants permissible. The rule may differentiate between different parts of the territory, different air contaminants and different air pollution sources or classes thereof. Such standards may be changed from time to time by the Agency following public hearings.

e.  May require sources to register and report type and quantities of emissions.

f.  Shall require sources to obtain permits to discharge air contaminants, shall provide for the issuance, renewal, termination and revocation of permits, and may charge reasonable fees for the administration of the permit program.

g.  May issue orders to require prevention or correction of air pollution or emissions of air contaminants which violate air quality standards.

h.  May institute actions for penalties for violation of any provisions of any rule or any order which it may issue.

i.  May hold public hearings, conduct investigations, subpoena witnesses to appear, administer oaths and affirmations, take depositions and receive such proof as it may deem necessary or proper, make findings of fact and determinations to discharge its duties, powers and responsibilities to control and abate air pollution.

j.  May institute or cause to be instituted in a court of competent jurisdiction, proceedings to compel compliance with the rules of the Agency, the laws of the State of Oregon and the standards set forth therein.

k.  May institute or cause to be instituted a suit for injunction to prevent any further or continued violation of the standards of these rules or an order of the Agency, and to compel compliance, if measures to prevent or correct air pollution or emission of air contaminants are not taken in accordance with an order of the Agency.

l.  Shall encourage voluntary cooperation by all persons controlling air pollution and shall cooperate with agencies of the United States, the State of Oregon, or other persons with respect to the control of air pollution.

m.  May conduct or cause to be conducted, studies and research with respect to air pollution sources, control, abatement or prevention.

n.  May conduct or supervise programs of air pollution control education.

o.  May apply to and receive funds from local, state, and federal governments and from public and private agencies.

p.  May expend such funds and enter into agreements with the state or the federal government for the purpose of organizing and operating a regional air pollution agency.

q.  May do any and all other acts and things not inconsistent with any provisions of these rules which it may deem necessary or proper for the effective enforcement of these rules and the applicable law.

Title 34 - Stationary Source Notification Requirements

RULES APPLICABLE TO ALL STATIONARY SOURCES

Section 34-015 Request for Information

All sources subject to Title 34 shall provide in a reasonably timely manner any and all information that LRAPA may reasonably require for the purpose of regulating stationary sources. Such information may be required on a one-time, periodic, or continuous basis and may include, but is not limited to, information necessary to:

1.  Issue a permit and ascertain compliance or noncompliance with the permit terms and conditions;

2.  Ascertain applicability of any requirement;

3.  Ascertain compliance or noncompliance with any applicable requirement; and

4.  Incorporate monitoring, recordkeeping, reporting, and compliance certification requirements into a permit.

Compliance with this section may require the installation and maintenance of continuous monitors and electronic data handling systems.

RULES APPLICABLE TO SOURCES REQUIRED TO HAVE TITLE V OPERATING PERMITS

Section 34-170 Applicability

Sections 34-180 through 34-200 apply to any stationary source defined under OAR 340-218-0020.
Section 34-170 Amended 06/13/00.

Section 34-180 Authority to Implement

In accordance with OAR 340-218-0010, OAR 340-218-0010, and OAR 340-244-0020, LRAPA is authorized to implement all Oregon Administrative Rules, Divisions 218, 220, and 244, which apply to sources subject to the Title V Operating Permit program in Lane County. LRAPA shall implement Division 218, 220, and 244 rules as they pertain to Title V Operating Permit Program sources until such time as it adopts its own Title V Permit Program rules.
Section 34-180 Amended 06/13/00.

Section 34-190 Definitions

All definitions relevant to Title V Operating Permit Program rules are contained in OAR 340-200-0020 and are adopted here by reference in their entirety.
Section 34-190 Amended 06/13/00.

Section 34-200 Title V Operating Permitting Program Requirements and Procedures

All rules pertaining to permitting of sources subject to Title V Operating Permit program are contained in OAR 340-218-0020 through 220-0190 and OAR Division 244 and 248, and shall be implemented by LRAPA in accordance with Section 34-180.
Section 34-200 Amended 06/13/00.

Title 35 - Stationary Source Testing and Monitoring

Section 35-0120

Program

1.  As part of its coordinated program of air quality control and preventing and abating air pollution, LRAPA may:

a.  Require the owner or operator of a stationary source to determine the type, quantity, quality, and duration of the emissions from any air contamination source;

b.  Require full reporting in writing of all test procedures and signed by the person or persons responsible for conducting the tests;

c.  Require continuous monitoring of specified air contaminant emissions or parameters and periodic regular reporting of the results of such monitoring.

2.  LRAPA may require an owner or operator of a source to provide emission testing facilities as follows:

a.  Sampling ports, safe sampling platforms, and access to sampling platforms adequate for test methods applicable to such source; and

b.  Utilities for sampling and testing equipment.

3.  Testing must be conducted in accordance with the ODEQ’s Source Sampling Manual (January 1992), the ODEQ’s Continuous Monitoring Manual (January 1992), or an applicable EPA Reference Method unless LRAPA, if allowed under applicable federal requirements:

a.  Specifies or approves minor changes in methodology in specific cases;

b.  Approves the use of an equivalent method or alternative method that will provide adequate results;

c.  Waives the testing requirement because the owner or has satisfied LRAPA that the affected facility is in compliance with applicable requirements; or

d.  Approves shorter sampling times and smaller sample volumes when necessitated by process variables and other factors.

Section 35-0160 Records; Maintaining and Reporting

1.  When notified by LRAPA, any person owning or operating a source within the state must keep and maintain written records of the nature, type, and amounts of emissions from such source and other information LRAPA may require in order to determine whether the source is in compliance with applicable emission rules, limitations, or control measures.

2.  The records must be prepared in the form of a report and submitted to LRAPA on an annual, semi-annual, or more frequent basis, as requested in writing by LRAPA. Submittals must be filed at the end of the first full period after LRAPA’s notification to such persons owning or operating a stationary air contaminant source of these recordkeeping requirements. Unless otherwise required by rule or permit, semi-annual periods are January 1 to June 30, and July 1 to December 31. A more frequent basis for reporting may be required due to noncompliance or if necessary to protect human health or the environment.

3.  The required reports must be completed on forms approved by LRAPA and submitted within 30 days after the end of the reporting period, unless otherwise authorized by permit.

4.  All reports and certifications submitted to LRAPA under LRAPA’s Rules and Regulations must accurately reflect the monitoring, record keeping and other documentation held or performed by the owner or operator.

Title 51 - Air Pollution Emergencies

Section 51-015 Emission Reduction Plans

Tables I, II and III of this regulation set forth specific emission reduction measures that shall be taken upon the declaration of an Air Pollution Episode. Any person responsible for a source of air contamination shall, upon declaration of an episode, take all actions specified in the applicable Table and shall particularly put into effect the Agency approved preplanned abatement strategy for such condition.

TABLE I AIR POLLUTION EPISODE, ALERT CONDITION EMISSION REDUCTION PLAN

Part A--Pollution Episode Conditions for Carbon Monoxide or Ozone
For Alert conditions due to excessive levels of carbon monoxide or ozone, persons operating motor vehicles shall be requested to voluntarily curtail or eliminate all unnecessary operations within the designated Alert area, and public transportation systems shall be requested to provide additional services in accordance with a preplanned strategy.
Part B--Pollution Episode Conditions for Particulate Matter
For Alert conditions resulting from excessive levels of particulate matter, the following measures shall be taken in the designated area:

1.  There shall be no open burning by any person of any material.

2.  Persons operating fuel burning equipment which requires boiler lancing or soot blowing shall perform such operations only between the hours of 12 noon and 4 p.m.

3.  Persons responsible for the operation of any source of air contaminants listed below shall take all required actions for the Alert level, in accordance with the preplanned strategy:

TABLE II AIR POLLUTION EPISODE, WARNING CONDITIONS EMISSION REDUCTION PLAN

Part A--Pollution Episode Conditions for Carbon Monoxide or Ozone
For Warning conditions, resulting from excessive levels or carbon monoxide or ozone, the following measures shall be taken:

1.  Operating of motor vehicles carrying fewer than three (3) persons shall be prohibited within designated areas during specified hours. Exceptions from this provision are:

A.  Public transportation and emergency vehicles

B.  Commercial vehicles

C.  Through traffic remaining on Interstate or primary highways.

2.  At the discretion of the Agency, operations of all private vehicles within designated areas or entry of vehicles into designated areas, may be prohibited for specified periods of time.

3.  Public transportation operators shall, in accordance with a pre-planned strategy, provide the maximum possible additional service to minimize the public's inconvenience as a result of (1) or (2) above.

4.  For ozone episodes the following additional measures shall be taken:

A.  No bulk transfer of gasoline without vapor recovery from 2:00 a.m. to 2:00 p.m.

B.  No service station pumping of gasoline from 2:00 a.m. to 2:00 p.m.

C.  No operation of paper coating plants from 2:00 a.m. to 2:00 p.m.

D.  No architectural painting or auto finishing;

E.  No venting of dry cleaning solvents from 2:00 a.m. to 2:00 p.m. (except perchlorethylene).

5.  Where appropriate for carbon monoxide episodes during the heating season, and where legal Agency exists, governmental agencies shall prohibit all use of woodstoves and fireplaces for domestic space heating, except where such devices provide the sole source of heat.

Part B--Pollution Episode Conditions for Particulate Matter
For Warning conditions resulting from excessive levels of particulate matter, the following measures shall be taken:

1.  There shall be no open burning by any person of any material.

2.  The use of incinerators for the disposal of solid or liquid wastes shall be prohibited.

3.  Persons operating fuel-burning equipment which requires boiler lancing or soot blowing shall perform such operations only between the hours of 12 noon and 4 p.m.

4.  Where legal Agency exists, governmental agencies shall prohibit all use of woodstoves and fireplaces for domestic space heating, except where such devices provide the sole source of heat.

5.  Persons responsible for the operation of any source of air contaminants listed below shall take all required actions for the Warning level, in accordance with a preplanned strategy:

TABLE III AIR POLLUTION EPISODE, EMERGENCY CONDITIONS EMISSION REDUCTION PLAN

1.  There shall be no open burning by any person of any material.

2.  The use of incinerators for the disposal of solid or liquid wastes shall be prohibited.

3.  All places of employment, commerce, trade, public gatherings, government, industry, business, or manufacture shall immediately cease operation, except the following:

A.  Police, fire, medical and other emergency services;

B.  Utility and communication services;

C.  Governmental functions necessary for civil control and safety;

D.  Operations necessary to prevent injury to persons or serious damage to equipment or property;

E.  Food stores, drug stores and operations necessary for their supply;

F.  Operations necessary for evacuation of persons leaving the area;

G.  Operations conducted in accordance with an approved preplanned emission reduction plan on file with the Agency.

4.  All commercial and manufacturing establishments not included in these rules shall institute such actions as will result in maximum reduction of air contaminants from their operations which emit air contaminants, to the extent possible without causing injury or damage to equipment.

5.  The use of motor vehicles is prohibited except for the exempted functions in 3, above.

6.  Airports shall be closed to all except emergency air traffic.

7.  Where legal Agency exists, governmental agencies shall prohibit all use of woodstoves and fireplaces.

8.  Any person responsible for the operation of a source of atmospheric contamination listed below shall take all required control actions for this Emergency Level.

Exhibit C: 30-Day Notification

Exhibit D: Certification of Hearings

Advisory committee

DEQ did not appoint an advisory committee for this rulemaking because the rulemaking would primarily adopt federal regulations by reference and rules that are identical to the federal emission guidelines for commercial and industrial solid waste incineration units.

EQC prior involvement

DEQ shares general rulemaking information with EQC through the monthly Director’s report and information items on the EQC agenda. DEQ did not present additional information specific to this proposed rule revision beyond the monthly report.

Public notice

DEQ provided notice of the Notice of Proposed Rulemaking with Hearing in the Dec. 1, 2013, Secretary of State Oregon Bulletin

On Nov. 18, 2013, DEQ:

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

•  E-mailed notice to:

•  Approximately 5,750 interested parties through GovDelivery

•  Approximately 80 parties affected by the new and amended federal air quality regulations.

•  Key legislators required under ORS 183.335, including:

◦  Jules Bailey, Chair, House Energy and Environment Committee

◦  Alan Olsen, Co-Chair, Senate Environment and Natural Resources Committee

•  Sent notice to EPA 

•  Published notice in The Oregonian and Daily Journal of Commerce

Public hearings and comment

DEQ held one public hearing. Two people attended the public hearing. DEQ received 25 public comments. The summary of comments and DEQ responses section below addresses each public comment. The commenter section below lists all people who provided comments on this proposal.

Presiding Officers’ Record

Hearing location    DEQ Headquarters Office, 10th Floor, Conference Room EQC A

811 SW Sixth Avenue, Portland OR 97204

Date      Dec. 18, 2013

Time      Convened 5:30 p.m.    Closed 6 p.m.  

Presiding officer    Gregg Dahmen

People unable to attend the Portland hearing in person were able to participate by telephone conference line set up at DEQ’s Bend and Medford offices.

Gregg Dahmen, the presiding officer, convened the hearing at 5:30 p.m. Dec. 18, 2014. Mr. Dahmen summarized procedures for the hearing including notification that DEQ was recording the hearing. He asked people who wanted to present verbal comments to complete, sign and submit a registration form.

According to Oregon Administrative Rule 137-001-0030, the presiding officer summarized the content of the notice given under Oregon Revised Statute 183.335.

DEQ added all names, addresses and affiliations provided on the registration form and attendee list to DEQ interested parties list for this rule and to the commenter section of this staff report. The commenter list includes a cross reference to the hearing number. DEQ added all written and oral comments presented at each hearing to the summary of comments and agency responses section of this staff report.

Update to initial DEQ proposal

DEQ received a request from Northwest Pulp and Paper Association and the Oregon Forest Industries Council to extend the public comment period, which had been scheduled to close Dec. 23, 2013 at 5 p.m. DEQ extended the public comment period for this rulemaking until Jan. 10, 2014 at 5:00 p.m. to provide additional time for comment.

Close of public comment period

The comment period closed on Jan. 10, 2014 at 5:00 p.m.

Exhibit E: Public Comments and Responses

For public comments received by the close of the public comment period, the following organizes comments into four categories with cross references to the commenter number. DEQ’s response follows the summary. Original comments are on file with DEQ.

DEQ is proposing changes to the rules in response to the comments received, as described below.

Proposed rules

1  Comment  Request for extension of the public comment period from Dec. 23, 2013 to Jan. 10, 2014.

DEQ received 1 comment in this category from commenter 3 listed in the Commenter section below.

Response  As requested, DEQ extended the public comment period from Dec. 23, 2013 to Jan. 10, 2014.

2  Comment  We have no objections to the package; however, we have a very strong interest in air permitting rules as they directly affect hundreds of our members. Accordingly, we request that if further discussions or actions take place to potentially change these rules we be so informed.

DEQ received 1 comment in this category from commenter 2 listed in the Commenter section below.

Response  There were no further discussions or actions that took place during the public comment period that changes the proposed rules. DEQ will send a link of the EQC package to all who commented on the proposed rules before the EQC meeting.

3  Comment  OAR 340-230-0030: This general definition section should be revised to state specifically that it does not apply to OAR 340-230-0415 and 340-230-0500. In addition, it is unclear what is meant by the sentence "Applicable definitions have the same meaning as those provided in 40 CFR 60.51c."

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ added “except for OAR 340-230-0415 and 340-230-0500” and removed "Applicable definitions have the same meaning as those provided in 40 CFR 60.51c."  

4  Comment  OAR 340-230-0500(3)(a): Text was mistakenly omitted from this provision in the Federal Register notice promulgating Subpart DDDD. The provision is being corrected to read: (a) For CISWI units in the incinerator subcategory that commenced construction on or before November 30, 1999, your state plan must include compliance schedules that require CISWI units to achieve final compliance as expeditiously as practicable after approval of the state plan but not later than the earlier of the two dates specified in paragraphs (a)(1) and (2) of this section. (1) December 1. 2005. (2) Three years after the effective date of State plan approval. DEQ should add in the language in (a)(1) and (2) because this language is needed to specify the compliance dates for certain sources.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.   

Response  In response, DEQ replaced “not later than the effective date of State plan approval” with “as expeditiously as practicable after approval of the State plan but not later than the earlier of the following two dates: (A) December 1, 2005. (B) Three years after the effective date of State plan approval.”

5  Comment  OAR 340-230-0500(4)(c): The addition of the language "as determined by DEQ in its discretion" renders this provision not approvable because it could be interpreted to mean that if DEQ determines the intent of changes was to comply with Subpart DDDD but the EPA or citizens in an enforcement action disagree, they could be precluded from pursuing claims inconsistent with DEQ's determination. It could be deleted or revised to say "as determined by DEQ or the decision maker in an enforcement action."

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ removed "as determined by DEQ in its discretion."

6  Comment  OAR 340-230-0500(5)(b) and (c): These provisions reference the New Source Performance Standards and DEQ's adoption of the Federal emission guidelines, which have not yet been approved by EPA, whereas the Subpart DDDD exemption references the NSPS and the corresponding federal emission guideline. Because EPA has not determined that the applicability criteria in DEQ's rules for municipal waste combustion units and medical incineration units are consistent with the current emission guidelines, these exemptions should not reference DEQ's rules. If DEQ is concerned that existing sources are not "regulated under" the federal emission guidelines until the rules are adopted by the state, DEQ could instead state "meet the applicability criteria in [NSPS] or [federal emission guideline]."

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ replaced “OAR 340-230-0310 through 0359,” “OAR 340-230-0365 through 0395” and “OAR 340-230-0415” with “Cb (Emission Guidelines and Compliance Times for Large Municipal Combustors),” “BBBB (Emission Guidelines for Small Municipal Waste Combustion Units)” and “Ca (Emission Guidelines and Compliance Times for Hospital/Medical/Infectious Waste Incinerators).”

7  Comment  OAR 340-230-0500(5)(h): It is unclear whether DEQ's decision to approach air curtain incinerators differently in this provision as compared to the emission guideline was intended only to eliminate redundancy in the rules or if DEQ intended to change the applicability and requirements in its rules for such sources. We have two specific concerns. First, the non­emission and control requirements for incinerators versus air curtain incinerators in the emission guidelines are not identical. 40 CFR 60.2840 has a narrower list of elements for air curtain incinerators than for CISWI units in 40 CFR 60.2600 and OAR 340-230-0500(6)(d). Also, the statement in OAR 340-230-0500(5)(h) that air curtain incinerators meeting certain requirements "are only required to meet the requirements in section (8) of the rule" would appear to relieve such sources of the requirements in section (6) (such as the requirement to submit a control plan and meet increments of progress) contrary to the minimum requirements of Subpart DDDD.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ split the requirements for CISWI units (section (6) of the rule contains 40 CFR 60.2575 through 60.2800) and air curtain incinerators (section (7) of the rule contains 40 CFR 60.2810 through 2870) to align the rules with Subpart DDDD.

8  Comment  OAR 340-230-0500(5)(j): The exemption language for sewage sludge incinerator units in Subpart DDDD also references existing units subject to the emission guideline at 40 CFR Part 60 Subpart MMMM. Even if DEQ believes it does not have any existing sewage sludge incinerator units, it makes sense to include this language in the event that such a unit is later determined to exist.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ added “combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter that meet the applicability criteria in” and “or 40 CFR Part 60 Subpart MMMM (Emission Guidelines for Sewage Sludge Incineration Units)” and removed “subject to.”

9  Comment  OAR 340-230-0500(7)(b): The authority in 40 CFR 60.2665(b)(2) and (b)(2)(ii) cannot be assumed by DEQ, but must be retained by the EPA.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ changed “40 CFR 60.2665(b)(1), (b)(2), and (b)(2)(ii), substitute “DEQ” for “the Administrator”” to “40 CFR 60.2665(b)(1), substitute “DEQ” for “the Administrator”. In 40 CFR 60.2665(b)(2) and (b)(2)(ii), substitute “EPA Administrator” for “Administrator.”

10  Comment  OAR 340-230-0500(7)(c)(A): The reference to 63.2670(a) appears to be in error and should be to 60.2670(a).

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ changed “63.2670(a)” to “60.2670(a).”

11  Comment  OAR 340-230-0500(7)(c)(B): This statement is incorrect. Table 2 limits apply to those units that were previously New Source Performance Standard units under the CISWI rule as promulgated on December 1, 2000. Those units would be those constructed after November 30, 1999, but prior to the date of June 4, 2010, that was established as the date defining new sources under the CISWI rule as promulgated on February 7, 2013. The units that these Table 2 limits apply to are those units that were not exempt from compliance with emission limits under the CIWSI rule as promulgated on December 1, 2000. These limits must apply up until the effective compliance date for existing sources under Oregon's state plan, as is reflected by the title for Table 2.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ changed “incinerators subject to the CISWI standards in the Federal plan (40 CFR Part 62 Subpart III) prior to June 4, 2010” to “CISWI units constructed after November 30, 1999 but prior to June 4, 2010, and that were subject to 40 CFR Part 60 Subpart CCCC (Standards of Performance for Commercial and Industrial Solid Waste Incineration Units) prior to June 4, 2010.”

12  Comment  OAR 340-230-0500(7)(g)(H): Should this provision refer to 40 CFR 60.2795(b)(1) and (b)(2) rather than 60.2790(c)(1) and (c)(2)?

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ changed “60.2790(c)(1) and (c)(2)” to “60.2795(b)(1) and (b)(2).”

13  Comment  OAR 340-238-0060(1): DEQ limited its adoption of several of the newly adopted federal standards to sources required to have a Title V permit or an Air Compliance Discharge Permit. The standards with this limitation are not listed in (1), but Subpart OOO, which has a similar limitation (major sources only), is culled out specifically here. This difference in treatment could be confusing.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ added “40 CFR Part 60 Subpart IIII is by this reference adopted and incorporated herein only for sources required to have a Title V or ACDP permit and excluding the requirements for engine manufacturers, and 40 CFR Part 60 Subpart JJJJ is by this reference adopted and incorporated herein only for sources required to have a Title V or ACDP permit and excluding the requirements for engine manufacturers.”

Proposed state plan to implement federal emission guidelines for CISWI units

14  Comment  The discussion of the criterion in 40 CFR 60.26(e) relating to local agencies' authority to carry out the plan or a portion of the plan needs more specificity with respect to the responsibilities of DEQ versus Lane Regional Air Protection Agency. Is this plan intended to apply within LRAPA's jurisdiction? If not, will LRAPA be submitting a separate plan or a negative declaration?

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  DEQ is requesting EPA to grant authority to implement the state plan to DEQ statewide, excluding Lane County, and to LRAPA in Lane County (implemented by LRAPA in Lane County and by DEQ in the rest of the state).

In a separate rulemaking, DEQ plans to propose adding the following to OAR 340-200-0010:

 “DEQ administers divisions 200 through 268 in all areas of the State of Oregon except in Lane County where LRAPA administers most air pollution control regulations. Subject to and when provided in such rules, LRAPA is authorized by the EQC as the agency to implement the rules within its area of jurisdiction.”

In this current proposed rulemaking, DEQ is proposing to add the following to OAR 340-230-0020:

“Subject to the requirements in this division, LRAPA is designated by the EQC to implement this division within its area of jurisdiction. The requirements and procedures contained in this division must be used by LRAPA unless LRAPA has adopted or adopts rules which are at least as strict as this division.”

DEQ is requesting EPA to grant authority to implement the state plan to DEQ statewide, excluding Lane County, and to LRAPA in Lane County (implemented by LRAPA in Lane County and by DEQ in the rest of the state).

15  Comment  Under Exhibit B, it is unclear why OAR 340-011-0003 (Confidentiality and Inadmissibility of Mediation Communications) and 340-011-0004 (Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation) have been included in the submittal and how they are relevant to DEQ's Section 111(d) plan.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ removed OAR 340-011-0003 and 340-011-004 from the state plan.

Proposed delegation request for the federal plan for HMIWI units

16  Comment  The discussion of the criterion in 40 CFR 60.26(e) relating to local agencies' authority to carry out the delegation needs more specificity with respect to the responsibilities of DEQ versus Lane Regional Air Protection Agency (LRAPA). Does the delegation request cover areas within LRAPA's jurisdiction? If not, will LRAPA be submitting a separate delegation request or a negative declaration?

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  DEQ requests that EPA delegate to DEQ statewide, excluding Lane County, and to LRAPA in Lane County (implemented by LRAPA in Lane County and by DEQ in the rest of the state) authority to implement the federal plan requirements for hospital, medical and infectious waste incinerators.

In a separate rulemaking, is proposing to add the following to OAR 340-200-0010:

 “DEQ administers divisions 200 through 268 in all areas of the State of Oregon except in Lane County where LRAPA administers most air pollution control regulations. Subject to and when provided in such rules, LRAPA is authorized by the EQC as the agency to implement the rules within its area of jurisdiction.”

In this rulemaking DEQ is proposing to add the following to OAR 340-230-0020:

“Subject to the requirements in this division, LRAPA is designated by the EQC to implement this division within its area of jurisdiction. The requirements and procedures contained in this division must be used by LRAPA unless LRAPA has adopted or adopts rules which are at least as strict as this division.”

DEQ is requesting EPA to grant authority to implement the state plan to DEQ statewide, excluding Lane County, and to LRAPA in Lane County (implemented by LRAPA in Lane County and by DEQ in the rest of the state).

17  Comment  Under Exhibit B, it is unclear why OAR 340-011-0003 (Confidentiality and Inadmissibility of Mediation Communications) and 340-011-0004 (Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation) have been included in the submittal and how they are relevant to DEQ's delegation request.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ removed OAR 340-011-0003 and 340-011-004 from the state plan.

Exhibit C to the proposed delegation request for the federal plan for HMIWI units (Memorandum of Agreements (MOA))

18  Comment  Paragraph I.B: This paragraph should refer to "Indian Country" rather than "Tribal lands."

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ changed “Tribal lands” to “Indian Country.”

19  Comment  Paragraph I.C: A sentence should be added to this paragraph stating: "Any such revocation shall be effective as of the date specified in written notice from the EPA to DEQ of the revocation."

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ added "Any such revocation shall be effective as of the date specified in written notice from the EPA to DEQ of the revocation."

20  Comment  Paragraph II.B: Because the MOA delegates all the authorities under Subpart HHH except those authorities specifically reserved, there is no need for the language in Paragraph II.B discussing additional authorities that are delegated to DEQ.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ removed language discussing additional authorities that are delegated to DEQ.

21  Comment  Paragraph II.C: The language in 1, 2, 4, and 5 should more specifically track the exceptions to delegation in 40 CFR 62.14495. We suggest either writing this section out verbatim or stating "The authorities specifically retained by the EPA in 40 CFR 62.14495."

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ replaced the language with the language from 40 CFR 62.14495.

22  Comment  Paragraph III.B.4: We cannot agree to a timeframe for taking final action on publication of the delegation in the Federal Register in the absence of a statutory obligation to do so.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ removed any timeframe for EPA to take final action on publication of the delegation in the Federal Register.

23  Comment  Paragraph III.C.1: The first sentence must be expanded to reference "other relevant Clean Air Act requirements."

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ added "other relevant Clean Air Act requirements."

24  Comment  Paragraph III.C.6.a: The reference to "EPA or DEQ upon request" must be revised to refer to "the EPA upon request."

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  In response, DEQ changed "EPA or DEQ upon request" to "the EPA upon request."

25  Comment  The Memorandum of Agreement in the request for delegation of the federal plan for hospital, medical, and infectious waste incinerators, is not approvable. The following provisions are in EPA Region 10's New Source Performance Standards and NESHAP delegation agreements with DEQ. For consistency, we ask that these provisions be added to the Memorandum of Agreement:

•  This MOA is subject to all federal laws and regulations as well as the EPA policies, guidance, and determinations issued pursuant to 40 CFR Parts 60 and 62.

•  If both a state or local regulation and a federal regulation apply to the same source, both must be complied with, regardless of whether the one is more stringent than the other, pursuant to the requirements of section 116 of the Clean Air Act.

•  Implementation and enforcement of this Federal Plan is subject to the current Compliance Assurance Agreement for Air Quality, signed by DEQ and the EPA. This clearly defines roles and responsibilities, including timely and appropriate enforcement response and the maintenance of the Aerometric Facility Subsystem (AFS).

•  DEQ will be the recipient of all notifications and reports and be the point of contact for questions and compliance issues for this delegated Federal Plan. The EPA may request notifications and reports from sources, if needed.

•  DEQ will ensure that all relevant source notification, and report information is inputted into the AFS database system in order to meet its recordkeeping/reporting requirements. The AFS reporting elements for "source information" that DEQ is expected to provide includes, but is not limited to:

1.  Identification of source

2.  Pollutants regulated

3.  Applicability of subparts

4.  Permit number for specific source or sub-unit

5.  Dates of most recent Federal Plan compliance evaluations (inspections)

6.  Compliance status

•  DEQ must maintain a record of all approved alternatives to monitoring, testing, recordkeeping/reporting requirements and provide this list of alternatives to the EPA semi-annually or more frequently if requested by the EPA. The EPA may audit any approved alternatives and disapprove any that it determines are inappropriate, after discussion with DEQ. If changes are disapproved, DEQ must notify the source that it must revert to the original applicable monitoring, testing, recordkeeping, and/or reporting requirements. Also, in cases where the source does not maintain the conditions which prompted the approval of the alternatives to the monitoring, testing, recordkeeping, and/or reporting requirements, DEQ must require the source to revert to the original monitoring, testing, recordkeeping, and reporting requirements, or more stringent requirements.

•  DEQ does not have the federally recognized authority to further delegate the Federal Plan to any other state or local agency.

•  As discussed in a January 10, 2006, letter from the Oregon Attorney General's Office, the five-day advance notice required by ORS 468.126 and OAR 340-012-0038 is inapplicable to enforcement of Oregon air permits containing Federal Plan standards or requirements.

DEQ received 1 comment in this category from commenter 1 listed in the Commenter section below.

Response  DEQ spoke to EPA to clarify this comment. EPA asked DEQ to remove the Memorandum of Agreement out of the request for delegation. In response, DEQ has pulled the Memorandum of Agreement from its proposal. The Memorandum of Agreement will be originated by EPA instead of DEQ.

Comments received by close of public comment period

The table below lists three people or organizations that submitted public comments on the proposed rules by the deadline. Original comments are on file with DEQ.

1  Commenter  Wenona Wilson, Manager  

Affiliation  Office of Air, Waste, and Toxics

 United States Environmental Protection Agency

This commenter submitted comments 3 through 25 in the Summary of comments and DEQ responses section above.

2  Commenter  John Ledger  

Affiliation  Associated Oregon Industries

This commenter submitted comment 2 in the Summary of comments and DEQ responses section above.

3  Commenter  Kathryn VanNatta, Linc Cannon  

Affiliation  Northwest Pulp & Paper, Oregon Forest Industries Council

This commenter submitted comment 1 in the Summary of comments and DEQ responses section above.

GARTENBAUM Andrea, 2014-11-05T10:58:00Z
Save this comment until we confirm the EQC meeting for this rulemaking. Update the date in this letter at that time.

GARTENBAUM Andrea, 2014-11-06T13:01:00Z
Brian White: Please review this section called SUMMARY OF COMMENTS AND DEQ RESPONSES