Oregon Department of Environmental Quality

 Enter date that comment period begins

 Notice of Proposed Rulemaking

Update Oregon State Implementation Plan for Annual Particulate Matter (PM 2.5) Standard; Amend Definition of National Ambient Air Quality Standards to include PM 2.5; and Address the Interstate Transport of Sulfur Dioxide (SO₂), Nitrogen Dioxide (NO₂), Lead (Pb) and PM 2.5

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Administrative Procedures Act Requirements

All DEQ public writing for rulemaking must be clear and simple to meet requirements of the Administrative Procedures Act.

ORS 183.750 Readability of Public Writings

Article Content

183.750 State agency required to prepare public writings in readable form.

(1) Every state agency shall prepare its public writings in language that is as clear and simple as possible.

(2) As used in this section:

(a) “Public writing” means any rule, form, license or notice prepared by a state agency.

(b) “State agency” means any officer, board, commission, department, division or institution in the executive or administrative branch of state government. [Formerly 183.025]

Note: 183.750 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 183 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

ORS 183.335

Notice

(2)(a) The notice required by subsection (1) of this section must include:

…(B) An objective, simple and understandable statement summarizing the subject matter and purpose of the intended action in sufficient detail to inform a person that the persons interests may be affected, and the time, place and manner in which interested persons may present their views on the intended action.

Plain Language

When you write this document, and all other public rulemaking documents, your publication reviewers will follow plain language guidelines. We, your reviewers recommend the following resources for anyone who has not taken a plain language course or who needs a refresher.

FAA Plain Language Course. [] It will take about an hour. It has some quirkiness and a few shots of humor.

For more details in an online or printable format, use the Federal Plain Language Guidelines. [LINK]

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Updates to the Oregon Clean Air Act State Implementation Plan are needed to ensure that Oregon DEQ has the authority to implement the current National Ambient Air Quality Standards (NAAQS) for PM 2.5. The proposed rule amendments update infrastructure elements of Oregon’s State Implementation Plan and allow for approval by the U.S. Environmental Protection Agency of the revised Oregon State Implementation Plan. 

Short summary

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DEQ proposes the Oregon Environmental Quality Commission approve the proposed rules for incorporation into the Oregon Clean Air Act State Implementation Plan and submittal to the U. S. Environmental Protection Agency for its approval under the federal Clean Air Act.

The proposed rule amendments incorporate a revised annual NAAQS for PM 2.5 and amend the definition of NAAQS to include PM 2.5 into Oregon Administrative Rule, to meet Clean Air Act requirements and revise the Oregon State Implementation Plan for approval by EPA.

The proposal includes the following actions:

•  Amend OAR 340-200-0040 to update the Oregon Clean Air Act State Implementation plan. If adopted by the EQC, the actions proposed in this rulemaking will be incorporated into and made part of the Oregon SIP

•  Amend OAR 340-202-0060(3) to incorporate the annual national primary ambient air quality standard for PM 2.5, adopted by the EPA, December 14, 2012 and effective on March 18, 2013.

•  Amend OAR 340-250-0030(22) to include PM 2.5 as part of the definition of NAAQS.

In addition to the rule amendments outlined above, a “crosswalk” titled “Infrastructure SIP Submittal for Purposes of Clean Air Act Sections 110(a)(1) and (2) for the 2012 PM 2.5 NAAQS” is included with this proposal. The crosswalk identifies existing Oregon Administrative Rules and corresponding Oregon Revised Statutes that demonstrate DEQ has the necessary authorities in place to implement requirements of Sections 110(a)(1) and (a)(2) of the Clean Air Act with respect to the current NAAQS for PM 2.5. They are included for EQC approval and submittal to EPA as documentation that the infrastructure elements of the Oregon SIP meet the requirements of the Clean Air Act as they relate to the PM 2.5 NAAQS.

Brief history

Section 110 of the Clear Air Act, 40 USC §7410, requires state and local air pollution control agencies to adopt federally approved control strategies to minimize air pollution. The resulting body of regulations is known as the State Implementation Plan, or more commonly called a “SIP.”

SIPs serve two main purposes:

1.  To demonstrate that the state has the basic air quality management program components in place to implement new or revised NAAQS; and

2.  To identify the emissions control requirements the state will rely upon to attain and/or maintain the primary and secondary NAAQS.

All states are required to submit SIPs with general infrastructure elements showing the state has the capacity to implement new or revised NAAQS. Infrastructure SIP submittals must include the basic program requirements for managing air quality required in Section 110(a)(2) of the Clean Air Act (CAA) as listed in Figure 1 below.

Figure 1: Required Infrastructure Elements Tracked for Each State

Section 110(a)(2)(A) Emission limits and other control measures

Section 110(a)(2)(B) Ambient air quality monitoring/data system

Section 110(a)(2)(C) Program for enforcement of control measures

Section 110(a)(2)(D)(i) - I Prong 1: Interstate transport - significant contribution

Section 110(a)(2)(D)(i) - I Prong 2: Interstate transport - interfere with maintenance

Section 110(a)(2)(D)(i) - II Prong 3: Interstate transport - prevention of significant deterioration Section 110(a)(2)(D)(i) - II Prong 4: Interstate transport - protect visibility

Section 110(a)(2)(D)(ii) - Interstate and international pollution abatement

Section 110(a)(2)(E) Adequate authority and resources

Section 110(a)(2)(F) Stationary source monitoring system

Section 110(a)(2)(G) Emergency power

Section 110(a)(2)(H) Future SIP revisions Section 110(a)(2)(J) Consultation with government officials; Public notification; PSD and visibility protection

Section 110(a)(2)(K) Air quality modeling/data Section 110(a)(2)(L) Permitting fees

Section 110(a)(2)(M) Consultation/participation by affected local entities

The Clean Air Act (CAA) requires the EPA to set NAAQS for wide-spread pollutants from numerous and diverse sources considered harmful to public health and the environment. The CAA established two types of National Ambient Air Quality Standards. Primary standards set limits to protect public health, including the health of "sensitive" populations such as asthmatics, children, and the elderly. Secondary standards set limits to protect public welfare, including protection against visibility impairment, damage to animals, crops, vegetation, and buildings. The CAA requires periodic review of the science upon which the standards are based and the standards themselves.

SIPs generally establish emission limits or work practice standards to minimize emissions of the air pollutants (and their precursors) for which EPA has issued air quality criteria (the “criteria pollutants”). The six current criteria pollutants are sulfur oxides (sulfur dioxide as indicator), particulate matter, oxides of nitrogen (nitrogen dioxide as indicator), lead, carbon monoxide, and ozone. EPA has established NAAQS for these pollutants and has updated these standards over time. As the NAAQS change, states must submit revisions to the infrastructure elements of their SIPs to reflect these changes.

On December 14, 2012 the US EPA revised the annual national primary ambient air quality standard for PM 2.5 to protect the public from adverse health effects, as appropriate under CAA Section 109, by revising the annual NAAQS for fine particle to 12.0 micrograms per cubic meter (µ/m³) and retaining the 24-hour fine particle standard of 35 µ/m³.

Main Functions of a State Clean Air Act Implementation Plan

There are three overarching activities that occur when a NAAQS is added or revised, as summarized below:

•  Within two years of revising the NAAQS for a criteria pollutant, EPA is required to identify or “designate” areas as meeting (attainment areas) or not meeting (nonattainment areas) the standard. Designations are based on the most recent set of air monitoring data. (see CAA Section 107(d)(1)(B), 42 USC § 7407(d)(1)(B).)

•  Within three years of EPA designations, all states must submit revisions to their state implementation plans to show they have the basic air quality management program

components in place to implement a new or revised NAAQS, as specified in Clean Air Act section 110. These plans are often called "infrastructure SIPs”. (see CAA Section 110(a)(1), 42 USC § 7410(a)(1)).

•  Within three years of area designations, states are required to submit nonattainment area SIPs to EPA for any criteria pollutant for which the standard is not met. Each nonattainment area SIP must outline the strategies and emissions control measures that show how the area will improve air quality and meet the NAAQS. (see CAA Section 172, 42 USC § 7502.)

Table 1: EPA Area Designations for Revised PM 2.5 NAAQS in Oregon

Air Quality Monitoring

DEQ conducts ambient air quality monitoring in accordance with 40 CFR 58.10, which requires state and local air quality agencies to develop an annual ambient air quality monitoring network plan for submittal to EPA by July 1st of each year. The DEQ ambient air quality monitoring network is designed in response to EPA’s National Monitoring Strategy to meet the five basic monitoring objectives specified by federal regulations:

(1) To determine highest concentrations expected to occur in the area covered by the network;

(2) To determine representative concentrations in areas of high population density;

(3) To determine the impact of significant sources or source categories on ambient pollution levels;

(4) To determine general background concentration levels; and

(5) To determine transport characteristics into and out of airsheds.

INSERT GRAPH: Anthony will provide a graph showing all the locations where we monitor for PM 2.5

TEXT: DEQ monitors ambient air concentrations of PM 2.5….for comparison to the NAAQS at the Air Quality Monitoring Network location in ------ . DEQ published the results of the most recent monitoring data in June of 2013????. DEQ is in attainment for the annual PM 2.5 standard and all monitoring data in Oregon shows there has not been a violation of the annual standard.

OPTIONAL – Do not repeat information entered above or required in other sections of this document. The Statement of Need section includes different methods for presenting numerous, disparate issues.

Infrastructure SIP submittals

This proposal addresses the federal Clean Air Act requirement that states must submit infrastructure SIPs within three years of a NAAQS revision to demonstrate they have the basic air quality program components in place to implement the revised NAAQS. The proposed rule amendments are needed to ensure DEQ has the necessary authority to enforce and implement the latest NAAQS for PM 2.5.

The proposed rule amendments would revise the existing Ambient Air Quality Standards for PM 2.5 under Oregon Administrative Rule chapter 340, division 202 to reflect the annual NAAQS for fine particles (PM2.5) adopted by the EPA.

Regulated parties

The proposed amendment of Oregon Administrative Rule 340-200-0040 to incorporate the latest NAAQS for PM 2.5 into the State of Oregon Clean Air Act Implementation Plan does not change the regulated parties.

Request for other options

DEQ must adopt the proposed rule amendments to enable DEQ’s implementation of the NAAQS for this pollutant and to allow the EPA to approve the proposed amendments as revisions to the Oregon SIP. Because the proposed rule amendments are necessary to update infrastructure elements of the Oregon SIP by incorporating the revised NAAQS for PM 2.5 in order to comply with the requirements of the Clean Air Act, DEQ has not requested input for other options.

DEQ welcomes public comments on any aspect of this proposed rulemaking during the public comment period.

Crosswalk Submittal and Interstate Transport Crosswalk Submittal, Interstate Transport

Infrastructure SIP: Other documentation

Crosswalk: In addition to the rule amendments described above, DEQ is submitting what is referred to as a “crosswalk” for EQC approval and submittal to EPA (Attachment A). A separate crosswalk is provided for PM 2.5 with this rulemaking proposal, addressing the required infrastructure SIP elements of CAA Section 110(a)(2)(A) - 110(a)(2)(M). The crosswalk was developed in collaboration with EPA Region 10 and is included with this proposal for EQC approval and submittal to EPA as DEQ’s demonstration that the Oregon SIP meets the infrastructure requirements to implement, maintain and enforce the annual NAAQS for PM 2.5 as specified in Section 110 of the Clean Air Act. The crosswalk addresses the required infrastructure elements of Section 110(a)(1) and 110(a)(2). While the crosswalk is not considered part of the official record of Oregon’s SIP, it is proposed for submittal to EPA as reference tools to demonstrate how applicable Oregon Administrative Rules and authorizing Oregon Revised Statutes correspond to and satisfy federal CAA Section 110(a)(1) and (a)(2) requirements for the purpose of

Infrastructure SIP submittals. DEQ has made an effort to include the relevant OARs and corresponding ORSs in the crosswalks for ease of reference, however, it should be noted that the official record of Oregon Administrative Rules that constitute the Federally-approved Oregon State Implementation Plan are listed in subpart MM of 40 CFR part 52.

Interstate Transport: The interstate transport provision in the CAA section 110(a)(2)(D)(i) (also called “the good neighbor” provision) requires each state to submit a State Implementation Plan that prohibits emissions that will have certain adverse air quality effects in other states (due within three years of the EPA promulgating a new or revised NAAQS). DEQ’s State Implementation Plan addresses the interstate transport of PM 2.5. Note: The interstate transport submittal also addresses Sulfur Dioxide (SO₂) Nitrogen Dioxide (NO₂) and Lead (Pb), SIP standards updated in 2013. (Attachment B).

Statement of need

Select method below that best communicates the need for this proposal using the following required elements.

METHOD 1: For proposals that are straight forward

What need would the proposed rule address?

States have a legal obligation under the CAA to amend their administrative rules to adopt new or revised National Ambient Air Quality Standards and incorporate these standards into their State Clean Air Act Implementation Plans. Amendments to Oregon Administrative Rule are needed to incorporate annual National Ambient Air Quality Standard for fine particulate matter (PM 2.5). DEQ standard and revise the definition of NAAQS to incorporate PM 2.5 into the Oregon SIP. Incorporating these changes into the Oregon SIP will allow DEQ to submit the revised infrastructure SIP element for this pollutant to EPA for approval. Once approved, DEQ will have the authority to implement the current NAAQS for PM 2.5 in Oregon, in compliance with the CAA.

How would the proposed rule solve the problem?

The proposed rule amendments will incorporate the annual NAAQS for PM 2.5, as required by the Clean Air Act, as well as revise the Oregon Administrative Rule definition NAAQS to incorporate PM 2.5 for clarification. If adopted, these proposed rule amendments will allow DEQ to submit the revised infrastructure SIP requirements to the U.S. Environmental Protection Agency for approval as revisions to the Oregon SIP.

How will DEQ know the problem has been solved?

Once adopted by the EQC, the proposed rule amendments will be filed with the Secretary of State and submitted to the EPA for approval as documentation of the updates made to the Oregon SIP. DEQ will know the problem has been solved when the updated infrastructure elements of Oregon’s SIP are approved by the EPA and published in the Federal Register.

Lead division            Program or activity

Environmental Solutions  Air Planning

Chapter 340 action

Amend  OAR 340-200-0020; OAR 340-202-0060(3); OAR 340-250-0030(22)

Statutory authority

ORS 468 and 468A

Statute implemented

ORS 468A

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

List principal documents, reports or studies relied on to develop this proposal. Include the location where the documents are available for public inspection. If the list is extensive, you may identify where the complete list is located.

Fee Analysis

This rulemaking does not involve fees.

Statement of fiscal and economic impact        ORS 183.335 (2)(b)(E)

For proposals that address numerous issues, the core team may use one of the methods under the Statement of Need section to clarify how this section applies to the disparate elements of this rulemaking.

LINK to review the Statement of Fiscal Impact Q-Card for this section.

Fiscal and Economic Impact

At a very high level, summarize proposed rules that would or could create an impact.

This proposal would have a fiscal impact on DEQ to the extent that resources are necessary to implement the new PM 2.5 NAAQS. DEQ’s current budget includes resources to implement the NAAQS monitoring program as well as conduct planning, technical analysis and monitoring, rulemaking, and community outreach activities as needed if compliance problems with federal NAAQS are discovered in the future. States are routinely required to incorporate federal revisions to the NAAQS into their rules and subsequently revise their State Implementation Plans to address related infrastructure elements. The CAA requires EPA to revise the NAAQS for a criteria pollutant when new information is available to suggest a more protective standard is necessary to protect public health and welfare.

New and modified sources in Oregon may have a fiscal or economic if controls are needed to meet the more stringent standard. If such control are needed DEQ will do an analysis of the fiscal and economic impacts at that time.

Statement of Cost of Compliance  

For each entity below, consider both positive and negative impact in the description of the estimated fiscal and economic impacts and costs to comply with the proposed rules. If there is no impact, describe why there is no impact – it is not enough to say, “There is no fiscal impact.” If unable to estimate or quantify the impact, say something like, “DEQ is unable to quantify the impact at this time because …” then explain why. It is OK to say we do not have available data to make this estimate. Rather than repeat identical impacts, its OK to reference the impact on other entities such as, “For large businesses, the cost to comply with the proposed rules is identical to costs described under small businesses. Do not change the order of the entities in the list below because it aligns with our electronic filing with Secretary of State.

Because the NAAQS are federal requirements under the CAA, DEQ is required to adopt and implement these standards in Oregon. If DEQ did not adopt the NAAQS, EPA would be required to enforce these standards in Oregon, resulting in the same compliance costs borne by affected sources under the proposed amendments to state rules.

Documents relied on for fiscal and economic impact

None were necessary.

Advisory committee

OPTION 1

OPTION 2

DEQ did not appoint an advisory committee for the proposed permanent rule amendments. This rulemaking proposal is necessary to align Oregon Administrative Rules with federally revised NAAQS under the CAA. The proposed changes are required to demonstrate that Oregon DEQ has the appropriate rules, programs and agreements in place to implement the CAA. As such, there was no policy choice to be made which would necessitate input from an advisory committee. Enter statement describing why DEQ did not convene and advisory committee – be brief.

Housing cost

OPTION 2 – no impact

To comply with ORS 183.534, DEQ determined the proposed rules would have no effect on the development cost of a 6,000-square-foot parcel and construction of a 1,200-square-foot detached, single-family dwelling on that parcel. Enter reason why these parcels are not involved here – be brief. EXAMPLE: The proposed rules only affect manufacturers of electronic devices sold in or into Oregon.

Federal relationship

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

For proposals that address numerous issues, use one of the methods under the Statement of Need section above if needed to clarify numerous and disparate elements of this rulemaking

Relationship to federal requirements

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

Select the option below that applies to this rulemaking. Some proposals may need multiple options. Delete text under options not used for this rulemaking.

The purpose of the Federal Relationship form is to highlight the substantive differences between DEQ's rules and federal rules, not to explain every minor difference and trivial details such as DEQ using a different word than EPA.

OPTION 1 – verbatim or by reference

The proposed rules would incorporate the federal regulation (40 CFR Section 50.18 National primary ambient air quality standards for PM2.5 (particles with an aerodynamic diameter of less than or equal to a nominal 2.5 micrometers). select item from list >

Enter description that includes the name and citation here – be brief.

OPTION 2– substantively equivalent to federal requirements

What alternatives did DEQ consider if any?

Enter description about why DEQ did not pursue these alternatives. If other parts of this document describes alternatives considered, DOJ advises us to duplicate the information here. DEQ must adopt the proposed rule amendments to enable DEQ’s implementation of the NAAQS for PM 2.5 and to allow the EPA to approve the proposed amendments as revisions to the Oregon SIP. Because the proposed rule amendments are necessary to update infrastructure elements of the Oregon SIP to incorporate the revised NAAQS for PM 2.5 in order to comply with the requirements of the CAA, DEQ has not considered other options for this proposal.

Land use

“It is the Environmental Quality Commission's policy to coordinate the DEQ’s programs, rules and actions that affect land use with local acknowledged plans to the fullest degree possible.”   OAR 340-018-0010

For proposals that address numerous issues, you may use one of the methods under the Statement of Need section if it clarifies how this section applies to the disparate elements of this rulemaking.

Land-use considerations

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

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

Goal  Title

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

 6  Air, Water and Land Resources Quality

 11  Public Facilities and Services

 16  Estuarial Resources

 9    Ocean Resources

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

◦  Comply with statewide land-use goals, and

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

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

•  Whether DEQ is the primary authority responsible for land-use programs or actions in the proposed rules.

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

Determination

OPTION 1

DEQ determined that the proposed rules listed under the Chapter 340 Action section above do not affect existing rules, programs or activities considered land-use programs and actions in OAR 340-018-0030 or in the DEQ State Agency Coordination Program.

Stakeholder and public involvement

 Advisory committee

The discussion of advisory committee activities in this location is to present a complete picture of public involvement in this rulemaking. Please make sure this section does not cause ambiguity with advisory committee information in the Statement of need section.

DEQ did not convene an advisory committee. This rulemaking proposal makes necessary amendments to Oregon Administrative Rules which are part of the Oregon Clean Air Act State Implementation Plan. The proposed changes correspond with revisions to the NAAQS for PM 2.5 and are required by the Clean Air Act to provide DEQ the authority to implement the current NAAQS for these pollutants.

OPTION 1

OPTION 2

EQC prior involvement

DEQ shares general rulemaking information with EQC through the annual DEQ Rulemaking Plan review and monthly status report. DEQ did not present additional information specific to this proposed rule revision beyond the annual rulemaking plan and the monthly rulemaking report.

Public notice

DEQ provided notice of the Notice of Proposed Rulemaking with Hearing for this rulemaking. DEQ submitted notice to:

•  Secretary of State for publication in the Oregon Bulletin on June 15, 2015

•  Sent notice to EPA on date

•  Posted notice on DEQ’s webpage

http://www.deq.state.or.us/regulations/proposedrules.htm on June 15, 2015

•  ####Mailed approximately (x number) interested parties on the Agency Rulemaking List through GovDelivery on June 15, 2015OPTION on mmm dd, yyyy

•  OPTION ####The following key legislators required under ORS 183.335 OPTION on mmm dd, yyyy TEXT:

Enter name, title, committee here. TEXT Ask Margaret

Enter name, title, committee here. TEXT

Enter name, title, committee here. TEXT

•  ####### Enter other notices here OPTION on mmm dd, yyyy

•  OPTION DEQ provided legal notice in The Oregonian on June 15, 2015.

EXAMPLES

Public hearings

DEQ plans to hold one #### public hearing. The table below includes information about how to participate in the public hearing.

Before taking public comment and according to Oregon Administrative Rule 137-001-0030, OPTION 1the OPTION 2staff presenter FOR BOTH OPTIONSwill summarize the content of the notice given under Oregon Revised Statute 183.335 and respond to any questions about the rulemaking.

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

Delete the unused lines and hearings from the tables below. After the team has finalized the information in the table(s), copy them into STAFF.RPT-6.0~. The staff report includes directions on ungrouping hidden rows and deleting rows specific to the notice.

Ask Rules Group about an AT&T conference card tools and find other options at:

http://deq05/intranet/working/ORConnectWebConfSuite.htm

http://deq05/intranet/working/conferenceCalls.htm

Close of public comment period

The comment period will close Day Of Week, mmm dd, yyyyon Monday, July 20, 2015 at 4:00 pm##:##