Attachment G Public Comment Categories and Responses · 2020-02-16 · 11/15/2018 ATTACHMENT G G-1...

11/15/2018 ATTACHMENT G G-1

Attachment G

Public Comment Categories and Responses

Comment Category #1: Air Toxics Permit Addendum - failure to submit timely

application should result in enforcement

Description: The CAO rules should make clear that an owner or operator of a source that fails to comply

with the deadlines for submitting and completing an application for an Air Toxics Permit Attachment

such that the application is considered by DEQ to be withdrawn may be subject to enforcement for

violations of the Cleaner Air Oregon rules, regardless of whether the owner or operator resubmits the

application. A source should not be allowed to delay the permitting process without facing the

possibility of enforcement. As written, the draft rules appear to authorize a source to effectively pay its

way out of permitting through delay. An owner or operator whose application is deemed withdrawn due

to delay should immediately be classified as a source that is operating without a required permit and be

subject to agency enforcement and penalties.

Response: DEQ changed the proposed rules to clarify the timeline of when submittals are due in OAR

340-245-0030. DEQ also added the following language:

(3)(b) If the owner or operator’s submittal is not approvable, or if the additional information or

corrections requested by DEQ are not provided in writing by the deadline provided, then in addition to

any other remedies available, DEQ may:

(A) With sufficient factual basis, modify the information provided by the owner or operator, approve it

as modified, and the owner or operator must pay the document modification fee in OAR 340-216-8030

Table 3; or

(B) Inform the owner or operator of the deficiency, and provide the owner or operator with a revised

deadline to submit the needed information.

The language "in addition to any other remedies available" can include enforcement action. In all DEQ

rules, DEQ has the authority to take enforcement against an owner or operator that does not comply

with the requirements. Enforcement does not need to be added to each rule to allow this to happen.

Division 12, Enforcement Procedure and Civil Penalties, contains procedures on how DEQ will take

enforcement. DEQ added proposed provisions for violations of Cleaner Air Oregon rules to division 12,

which is also open for public comment.

DEQ did not change the proposed rules in response to this comment.

Response Type: no, we won't make changes to address this comment

Comments linked to this category: 84, 552, 665

Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting of 285

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Comment Category #2: Air Toxics Permit Addendum - how will DEQ evaluate

accuracy of application?

Description: Requiring facilities to conduct risk assessments depends on facilities providing accurate

emissions data. How will DEQ ensure that facilities have done the risk assessments correctly and that

they are unbiased, valid, and based on up-to-date, peer reviewed scientific evidence?

Response: Facilities are currently required to submit information on emissions of criteria pollutants

(carbon monoxide, nitrogen oxides, particulate matter, sulfur dioxide and volatile organic compounds)

under their existing operating permits. Based on the production rates used to calculate criteria pollutant

emissions and factors to calculate emissions of toxic air contaminants, DEQ can evaluate the accuracy of

information used in toxic air contaminant risk assessments. In addition, DEQ will compare sources in the

same source category for consistency in calculating toxic air contaminant emissions, whenever possible.

Some sources may be required to perform source tests to verify emissions after toxic air contaminant

permits are issued, which require thorough DEQ review.

Facilities are required to follow protocols that DEQ and OHA have developed to perform risk

assessments using the Risk Based Concentrations that DEQ and OHA have proposed. The Risk Based

Concentrations proposed in the Cleaner Air Oregon rules are based on the most up-to-date, peer

reviewed scientific toxicological data.

If a facility does not report or under-reports their emissions, DEQ can take enforcement against the

facility, as it currently does in the existing air quality permitting programs.


Response Type: yes, no rule change needed

Comments linked to this category: 613

Comment Category #3: Air Toxics Permit Addendum - Provide for transfer to

new owner

Description: There should be transfer provisions for the permit attachment. The permit attachment has

no expiration date and yet there is no apparent method to transfer the attachment to a new owner.

Clear and reasonable transfer processes consistent with the basic air permit programs should be

provided for the attachment.

Response: DEQ changed its approach regarding permitting of toxic air contaminants based on public

comment received. DEQ now proposes to issue Toxic Air Contaminant Permit Addendums to Air

Contaminant Discharge permittees and Title V permittees that amend operating permits instead of

having a separate permit without an expiration date.


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The rules regarding Air Contaminant Discharge Permits and Title V Operating Permits apply to Cleaner

Air Oregon permit conditions. Because of this change in approach, change of ownership, correction of

typographical errors and similar administrative changes would also apply to Toxic Air Contaminant

Permit Addendums providing the ability to transfer the addendum to a new owner.

DEQ agrees with commenter and changed the proposed rules in response to this comment.

Response Type: yes, we will make changes to address the comment


Comment Category #4: Air Toxics Permit Addendum - require public notice for

termination or revocation

Description: DEQ should provide public notice for the termination or revocation of an Toxic Air

Contaminant Permit Addendum so that the surrounding community can ensure that DEQ is taking

necessary actions to protect public health in a transparent way.

Response: DEQ has changed its thinking regarding permitting of toxic air contaminants based on public

comment received. DEQ proposes to issue Toxic Air Contaminant Permit addendums that amend Air

Contaminant Discharge and Title V operating permits. DEQ will incorporate Toxic Air Contaminant

Permit Addendums into the operating permit at renewal or modification for an existing source, or

issuance for a new source. Because of this change, termination or revocation of a Toxic Air Contaminant

Permit Addendum is not necessary. If an owner or operator reduces risk so that permit conditions for

Toxic Air Contaminants are no longer needed, those conditions will be removed but the operating

permit will still be in effect.

DEQ currently does not provide public notice for termination or revocation of operating permits, either

Air Contaminant Discharge Permits or Title V Operating Permits. If an operating permit is terminated or

revoked as a result of an enforcement action, DEQ would notify the public through a press release. DEQ

distributes press releases to media outlets and through GovDelivery, a free email alert subscription of

approximately 5,000 subscribers. If DEQ finds a serious danger to the public health, safety, or the

environment caused by a permittee's activities, DEQ may immediately revoke or refuse to renew the

permit.



Comments linked to this category: 491, 552

Comment Category #5: Air Toxics Permit Addendum - require renewal


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Description: A permit should have a renewal period, triggered by an increased health risk due to

emissions, cumulative emission, and changes in population demographics and vulnerability.

Response: DEQ changed its approach regarding permitting of toxic air contaminants based on public

comment received. DEQ now proposes to issue Toxic Air Contaminant Permit Addendums to Air

Contaminant Discharge permittees and Title V permittees that amend these operating permits instead

of having a separate Toxic Air Contaminant Permit Attachment without an expiration date. Because of

this change, permit conditions for toxic air contaminants will expire along with the rest of the operating

permit and will need to be renewed using the same renewal procedures for existing operating permits,

both Air Contaminant Discharge Permits and Title V Operating Permits.

The proposed rules require a source to apply for a permit modification if the source wishes to make

changes that will increase risk above their current permitted risk levels. These could include changes to

emissions and exposure location. If DEQ receives an application for changes that will increase risk, DEQ

must provide public notice and an opportunity for citizens to request a public hearing (see OAR 340-245-

0100(7)).

The proposed rules do not require a source to take action if there are changes with surrounding

demographics or sensitive populations. Such population changes generally occur over many years, and

DEQ does not believe it is appropriate to put the burden of monitoring population demographics on a

regulated source. However, if DEQ becomes aware of changes in relation to demographics and sensitive

populations that might significantly affect a source's risk assessment, DEQ can require the source to

perform a new risk assessment (see OAR 340-0100(7)).

DEQ changed the proposed rules in response to parts of this comment.



Comment Category #6: Ambient Monitoring - allow a source to use ambient

monitoring data collected by DEQ

Description: Commenter requests that DEQ include a new section under OAR 340-245-0080 that allows

a source to use ambient air monitoring data previously collected by DEQ to supplement its risk

assessment.

Response: DEQ does not routinely perform ambient monitoring that is specific to an individual source

and in the rare situations when it does, the locations, duration and pollutants monitored may not yield

all of the information required in risk assessment modeling. Meteorological data and production data

from the source would also be required in order for DEQ to determine if ambient concentrations are

attributable to the source in question. In addition, the limited monitoring DEQ may conduct near

sources would not likely capture all operating periods and conditions. Nothing in proposed Cleaner Air

Oregon regulations or protocols would preclude a source from referring to available DEQ monitoring


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data in its risk assessment as a supplement of modeling, but the monitoring data would not substitute

for modeling.




Comment Category #7: Ambient Monitoring - allow more time to submit results

Description: A deadline of 15 days is not adequate to submit ambient monitoring data results. We

recommend that 60 days be allowed for the submittal of monthly monitoring report elements as

described in OAR 340-245-0240(4)(a).

Response: DEQ changed the proposed rules in response to parts of this comment.



Comment Category #8: Ambient monitoring - collect data on effects of

combined hazards on human health with comprehensive statewide monitoring

program, using the newest technology

Description: Stagnant air sometimes gets stuck in the Willamette Valley for days or weeks. When this

occurs, pollutants from industry, as well as traffic and agriculture, stay close the ground in the breathing

space for dangerous periods of time. We need a comprehensive statewide air quality monitoring

program to establish baseline pollutant concentrations and measure the effectiveness of the CAO

rulemaking. If we do not see improvement, then an assessment would be performed, and changes

would be needed to CAO rules.

The availability of new technology that can provide more accurate readings of emissions can also have

enormous benefits to communities in affected communities. Low-cost, mobile sensors make it possible

to identify areas with disproportionate exposures and understand the relationship between source

polluters and the communities they effect. Understanding this problem is crucial to eliminating

“hotspots,” areas with proportionally higher emissions. Some of these new sensors could be used to

map pollution block-by-block, which would pinpoint problem areas. The availability of high-resolution air

quality data in urban areas could be potentially transformative for environmental management, air

pollution science, epidemiology, public awareness, and public policy. This technology could lead to

developments in pollution control and will require source polluters to become more accountable for

their emissions.


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Response: DEQ agrees with the comment that weather conditions and topography can greatly influence

levels of air pollution in communities statewide. Periods of air stagnation can elevate levels of pollutants

in air sheds, including particulate matter and toxic air contaminants. DEQ has performed one computer

modeling study so far to estimate levels of toxic air contaminants within a community, taking into

account weather patterns, topography and emissions from all sources. DEQ could perform this type of

comprehensive modeling study in other Oregon communities, depending on available funding.

DEQ received funding for six additional toxic air contaminant monitoring stations and a network of

particulate screening monitors, and is currently undergoing planning to expand our air monitoring to

communities statewide. Additional ambient monitoring data can help identify areas where air pollutants

pose a threat to public health. However due to the localized nature of industrial emissions and the large

spatial scale of toxic air contaminant monitoring, DEQ does not expect ambient monitoring data to serve

as a clear indicator of the Cleaner Air Oregon's effectiveness in protecting public health.



Comments linked to this category: 265, 322, 382, 467, 509, 587, 612, 622, 637, 660, 771, 761, 801

Comment Category #9: Ambient Monitoring - only require update to risk

assessment if monitored impacts are attributable to the source

Description: We recommend language be added to clarify that an update or correction to a Risk

Assessment is required if the results of air monitoring show higher risk and if the monitored higher

pollutant levels are reasonably attributable to the source.

Response: If a source chooses to do air monitoring to estimate risk, the source must submit an air

monitoring plan with "a description of how to determine and account for the ambient concentration of

each toxic air contaminant being monitored that results from all causes other than the source under

consideration, including natural and unknown causes." If the source cannot determine how much of the

monitored concentrations are coming from their facility, then they must assume that it all comes from

their facility.




Comment Category #10: Ambient Monitoring - require only one community

engagement meeting


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Description: Only one public meeting should be required for community engagement on ambient

monitoring plans. The location of ambient monitoring should be driven by dispersion modeling results

and DEQ specifies the choice of hardware. There is no need for two rounds of community engagement

meetings regarding ambient monitoring.

Response: DEQ has removed detailed requirements for community engagement from the draft rules

and replaced them with rules that outline how DEQ will conduct community engagement. A future

Cleaner Air Oregon community coordinator will develop a full set of procedures and guidelines that will

allow greater flexibility in working with communities to keep neighbors informed and involved in the

process. These procedures will be based on community engagement best practices and the comments

received during the first public notice period, and there will be an opportunity for public and

stakeholder input on the procedures. Compared to having a prescriptive process in the regulations, this

approach will allow greater flexibility to tailor the community engagement process to the needs of

communities.

If a source chooses to perform ambient monitoring, DEQ proposes to work with the owner or operator

to develop public information on the approved air monitoring plan and timeline. A public meeting is

required for sources above the community engagement and risk reduction levels. DEQ and the source

could address the monitoring plan at the public meeting. The public engagement protocol and best

practices that DEQ anticipates developing with input from stakeholders will guide the nature of public

engagement on permitting issues that will include monitoring plans.




Comment Category #11: Ambient Monitoring - rules should encourage/require

ambient monitoring

Description: A summary of some of the comments related to ambient monitoring:

1) Modeling is inherently inaccurate in that it is designed to overestimate risk.

2) Existing sources should be allowed to undertake DEQ approved monitoring in lieu of relying

exclusively on modeling when performing a Health Risk Assessment (HRA).

3) The requirement to do an expensive modeling-based HRA and reduction measures while monitoring

is being performed is a disincentive to do monitoring. The requirements a source must meet to perform

ambient monitoring are excessive and should be reduced.

4) DEQ's implementation document for ambient monitors, notes a year of monitoring may provide an

annual average concentration suitable for comparison with chronic RBCs, but it is more difficult to

determine the highest 24-hour concentration for comparison to acute RBCs. The criticism that


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monitoring cannot demonstrate impacts at all locations for all acute and chronic exposure periods, can

be addressed through the use of combined assessments of modeling and monitoring ("CAMM") results.

For example, monitoring results can be used to identify systemic biases in modeled concentrations.

Monitoring can also determine actual concentrations that can be used to adjust modeled

concentrations.

5) There are some sources for which the development of an emissions inventory is extremely difficult

(e.g. sources with batch operations) or where fugitive emissions are a dominant source. Therefore,

monitoring is a preferred method to estimate impacts.

6) The rules should allow a monitoring period of less than 12 months when there are situations where

12 months of data are not needed. Monitoring should not be required during the portion of the year

where the receptors are not impacted.

7) Based on the timing of certain deliverables, along with the time necessary to complete the

community engagement process, the proposed rule does not allow for air monitoring to have any

meaningful utility.

8) There are many factors that affect actual emission concentrations that cannot be accounted for in

modeling software programs.

9) Reliable meteorological data is not available for many locations. DEQ should facilitate collection and

dissemination of this data, including the development of preapproved met data for use in dispersion

modeling.

10) Air monitoring should be mandatory and done on a surprise basis. Requiring air monitoring is the

first step in restoring public trust.... It will also be a good foil against emissions inventories and a way to

see if results line up in terms of what industry says they are emitting and what they are emitting.

Response: DEQ provided a response after each COMMENT SHOWN IN UPPERCASE.

1) MODELING IS INHERENTLY INACCURATE IN THAT IT IS DESIGNED TO OVERESTIMATE RISK.

Although modeling is an approximation, it can be a very effective tool that has been used in a regulatory

context by the EPA and state regulators for decades. It can perform in a similar fashion for Cleaner Air

Oregon to identify sources that pose risk, identify the toxic air contaminants of greatest concern and the

relative magnitude of concern, identify areas of greatest risk from sources, and measure the

effectiveness of controls on emissions.

2) EXISTING SOURCES SHOULD BE ALLOWED TO UNDERTAKE DEQ APPROVED MONITORING IN LIEU OF

RELYING EXCLUSIVELY ON MODELING WHEN PERFORMING A HEALTH RISK ASSESSMENT.

Senate Bill 1541 states that a risk assessment using modeling must be performed prior to monitoring.

This modeling will help identify the toxics of concern, the magnitude of risk, and where high

concentrations occur. This approach provides information about the optimal location for monitors, and

identifies emission points that may require controls. Without modeling to help locate monitor locations,

many more monitors surrounding the source would be required to try to capture the location of the

highest concentrations. Monitoring also has limitations:

o Monitoring is expensive and time consuming.


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o There will only be impact or risk information for the location of the monitor. The majority of locations

will not have impact or risk information because there will be no way of estimating or extrapolating the

impact or risk information at these locations.

o It will not be possible to say with any certainty whether the impact and risk at the monitored location

represents the worst case, best case or an average case.

o If a source has multiple emissions points, the monitoring location may not capture the combined

effects of multiple emission points.

o Not all of the approximately 240 toxic air contaminants with RBCs have analytical methods for

measuring concentrations.

o There can be significant risk from some chemicals at or even below the monitoring detection limit,

which can add considerable uncertainty to risk estimates if many of the measurements are below or

near the detection limit.

o Monitoring cannot always distinguish the source of the monitored concentration.

o Monitoring is usually done on a schedule, not every day, so a high concentration or worst-case daily

meteorology could be missed.

3) THE REQUIREMENT TO DO AN EXPENSIVE MODELING-BASED HEALTH RISK ASSESSMENT AND

REDUCTION MEASURES WHILE MONITORING IS BEING PERFORMED IS A DISINCENTIVE TO DO

MONITORING. AMBIENT MONITORING REQUIREMENTS ARE EXCESSIVE AND SHOULD BE REDUCED.

Modeling is less expensive than monitoring and can be performed quickly. The requirements to perform

monitoring are standard for a regulatory application to ensure that all monitoring is done correctly and

is consistent across all sources. The goal of the monitoring requirements is to set the standard to gather

data that is accurate and is not intended to incentivize or dis-incentivize a source from undertaking

monitoring. SB 1541 states that DEQ can only require a source to reduce risk before monitoring is

complete when the modeled risk exceeds four times the benchmark for excess lifetime cancer risk or

four times the benchmark for excess noncancer risk. Otherwise, the source can delay risk reduction until

after the monitoring is complete.

4) DEQ'S IMPLEMENTATION DOCUMENT FOR AMBIENT MONITORS NOTES A YEAR OF MONITORING

MAY PROVIDE AN ANNUAL AVERAGE CONCENTRATION SUITABLE FOR COMPARISON WITH CHRONIC

RBCs, BUT IT IS MORE DIFFICULT TO DETERMINE THE HIGHEST 24-HOUR CONCENTRATION FOR

COMPARISON TO ACUTE RBCs. THE CRITICISM THAT MONITORING CANNOT DEMONSTRATE IMPACTS AT

ALL LOCATIONS FOR ALL ACUTE AND CHRONIC EXPOSURE PERIODS, CAN BE ADDRESSED THROUGH THE

USE OF COMBINED ASSESSMENTS OF MODELING AND MONITORING ("CAMM") RESULTS. FOR

EXAMPLE, MONITORING RESULTS CAN BE USED TO IDENTIFY SYSTEMIC BIASES IN MODELED

CONCENTRATIONS. MONITORING CAN ALSO DETERMINE ACTUAL CONCENTRATIONS THAT CAN BE USED

TO ADJUST MODELED CONCENTRATIONS.

Monitoring for acute (24-hour average concentrations) toxics can be more challenging than for chronic

(annual average concentrations), in part because of monitor placement. However, dispersion modeling

by season can identify optimal locations for these monitors. There is a potential that monitoring could

be used in concert with model results. The referenced CAMM study was designed to improve emissions


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estimates, not directly improve modeled concentrations. This concept deserves further study, and if

deemed worthwhile a protocol for its use would have to be developed. In the short term, this approach

might be approvable on a case-by-case basis.

5) THERE ARE SOME SOURCES FOR WHICH THE DEVELOPMENT OF AN EMISSIONS INVENTORY IS

EXTREMELY DIFFICULT (E.G. SOURCES WITH BATCH OPERATIONS) OR WHERE FUGITIVE EMISSIONS ARE

A DOMINANT SOURCE. THEREFORE, MONITORING IS A PREFERRED METHOD TO ESTIMATE IMPACTS.

It is true that some source emissions are difficult to quantify, however chemical mass balance has been

used in many cases.

6) THE RULES SHOULD ALLOW A MONITORING PERIOD OF LESS THAN 12 MONTHS WHEN THERE ARE

SITUATIONS WHERE 12 MONTHS OF DATA ARE NOT NEEDED. MONITORING SHOULD NOT BE REQUIRED

DURING THE PORTION OF THE YEAR WHERE THE RECEPTORS ARE NOT IMPACTED.

The length of time deemed necessary to adequately monitor ambient concentrations of a toxic would be

addressed in the monitoring protocol along with the location of the monitors. A source could provide

evidence for DEQ approval that a shorter period was justified.

7) BASED ON THE TIMING OF CERTAIN DELIVERABLES, ALONG WITH THE TIME NECESSARY TO

COMPLETE THE COMMUNITY ENGAGEMENT PROCESS, THE PROPOSED RULE DOES NOT ALLOW FOR AIR

MONITORING TO HAVE ANY MEANINGFUL UTILITY.

Senate Bill 1541 states that modeling and a risk assessment would be conducted in advance of

monitoring. It also states that DEQ will work with the source to develop public information about the

approved monitoring plan and timeline.

8) THERE ARE MANY FACTORS THAT AFFECT ACTUAL EMISSION CONCENTRATIONS THAT CANNOT BE

ACCOUNTED FOR IN MODELING SOFTWARE PROGRAMS.

The modeling protocol describes and evaluates factors that make up the model inputs, including

emissions estimates, meteorological variables, terrain elevations, terrain surface characteristics, building

downwash effects, location of sensitive receptors, and other factors. As part of this description and

assessment is a check on the quality of the data to ensure that it is representative and to reduce

uncertainties in the running of the model.

9) RELIABLE METEOROLOGICAL DATA IS NOT AVAILABLE FOR MANY LOCATIONS. DEQ SHOULD

FACILITATE COLLECTION AND DISSEMINATION OF THIS DATA, INCLUDING THE DEVELOPMENT OF

PREAPPROVED MET DATA FOR USE IN DISPERSION MODELING.

The provision by DEQ of pre-approved met data has been discussed, and it is possible that this data may

be available during the implementation of Cleaner Air Oregon.

10) AIR MONITORING SHOULD BE MANDATORY AND DONE ON A SURPRISE BASIS. REQUIRING AIR

MONITORING IS THE FIRST STEP IN RESTORING PUBLIC TRUST. IT WILL ALSO BE A GOOD WAY TO SEE IF

RESULTS LINE UP IN TERMS OF WHAT INDUSTRY SAYS THEY ARE EMITTING AND WHAT THEY ARE

ACTUALLY EMITTING.

Ambient monitoring does not always provide the most accurate picture of emissions or health risk from

a facility, for reasons mentioned earlier in this response. Air dispersion modeling software such as


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AERSCREEN and AERMOD are EPA-approved and designed to provide health-protective, conservative

estimates of air concentrations near facilities. DEQ can require facilities to perform a stack test if

verification of emissions data is needed.


Comments linked to this category: 812, 832, 837, 37, 867, 52, 880, 72, 132, 165, 172, 188, 259, 276,

300, 301, 302, 308, 333, 342, 415, 432, 474, 495, 505, 524, 545, 550, 556, 567, 571, 610, 627, 631, 640,

644, 655, 658, 662, 673, 779, 768, 801, 672, 674

Comment Category #12: Applicability - CAO should apply to used oil burned in

shop heaters

Description: Shop heaters that burn used oil, solvents, antifreeze, etc. should be required to obtain

permits and be subject to Cleaner Air Oregon.

Response: The proposed CAO rules include maintenance and repair shops as a conditionally insignificant

activity, unless DEQ determines that a particular maintenance and repair shop "could create a significant

risk to human health". If DEQ makes that finding, then the emissions from maintenance and repair shop

activities could be included in the risk assessment and potential risk reduction requirements. See the

proposed OAR 340-245-0060(3)(c).

DEQ changed the proposed rules in response to this comment.



Comment Category #13: Applicability - do not exempt: small businesses,

emissions from oil re-refining, creosote, wood burning, forest products

production

Description: No business should be exempted from the requirements of CAO based on their number of

employees. In addition, there should not be exemptions for businesses using certain chemicals such as

used oil or creosote or for logging-related industries, such as Cross-Laminated Timber and wood-burning

biomass energy facilities. Exemptions should only be given for facilities that fall beneath de minimis

pollution levels.

Response: The proposed Cleaner Air Oregon program does not exempt small businesses. As part of the

rulemaking process, DEQ is required to identify the fiscal impacts the rulemaking would have on small

businesses (those with 50 or fewer employees) and try to minimize the impact of regulations on those


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small businesses. However, CAO would apply to all businesses that currently hold air permits, regardless

of the number of employees.

As facilities are called-in to the Cleaner Air Oregon permitting process, DEQ will require businesses to do

risk assessments and the actions they are required to take depend on the risk. If the risk from a facility is

very low, DEQ will not require a facility to obtain a permit addendum. The facility will still be required to

report regularly so DEQ knows that their emissions are still low and the business is not subject to

Cleaner Air Oregon permitting. In the future DEQ may have a process to screen businesses that do not

have current air permits to see if they should be subject to Cleaner Air Oregon.

The draft rules do exempt certain "categorically insignificant activities" and risk from combustion of

natural gas, propane, liquefied petroleum gas, pretreated landfill gas and pretreated digester gas or

biogas. However, DEQ is not proposing an exemption for oil re-refining, creosote emissions, industrial

wood burning, or an exemption specific to other forest product categories.




498, 506, 625, 924, 757, 925, 755

Comment Category #14: Applicability - do not require sources that trigger

NSR/PSD to submit a risk assessment

Description: DEQ is requiring sources that trigger permitting under Division 224 New Source

Review/Prevention of Significant Deterioration to submit a toxics risk assessment. While DEQ may have

intended for only PSD or NNSR projects to trigger air toxics assessment, there is no basis for requiring

that any source that undergoes Division 224 New Source Review also automatically undergo the toxics

risk assessment process. A source triggering PSD, for example, may only undergo PSD review based on a

change to a single emissions unit. It does not make sense to put that facility through the facility-wide

toxics risk assessment process based on a change to a portion of the facility. Furthermore, OAR 340-224-

0030(2)(b)(C) requires that DEQ make a final determination on applications under Division 224 within 12

months after receiving a complete application, a deadline that is currently difficult to meet.

Response: Any source that triggers major source New Source Review or Type A State New Source

Review permitting under division 224 is increasing emissions by more than a significant emission rate.

Some toxic air contaminant emissions that could pose very high risk are classified as particulate matter

(significant emission rate of 15 tons per year or 30,000 pounds per year) or volatile organic compounds

(significant emission rate of 40 tons per year or 80,000 pounds per year) under the New Source Review

program. Even if the source triggers New Source Review for only a single emissions unit, the risk from

that emissions unit can cause potentially very high risk based on those emission increases. DEQ would

not want that emissions unit to have to be re-evaluated under Cleaner Air Oregon and potentially be


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required to install a different control device, or maybe not even be allowed if that emissions unit were

reviewed only under the New Source Review rules.

DEQ did change the rules to exclude Type B State New Source Review. DEQ does not know what the

commenter means by NNSR projects as this is not part of DEQ's air quality regulatory program.



Comments linked to this category: 871, 888, 908, 912

Comment Category #15: Applicability - don't add regulation on industrial

sources, industrial emissions are a low proportion of total

Description: Industry should be regulated in proportion to its contribution to air pollution, which is

much less than non industrial sources. Rules unrealistically target local employers rather than all sources

of emissions. In fact, industry accounts for less than 15% of air pollutants. The main contributors of air

pollutants are mobile sources and wood fired heating.

Response: The levels of contribution of different sources of toxic air contaminants (e.g., industry, on and

off road engines, wood burning, and other residential and commercial activity) are greatly affected by

the size and location of areas affected and analyzed. When averaging different source contributions to

toxic air contaminants across Oregon counties, industrial emissions are typically about 10%, while other

emissions, especially those from wood burning and gas and diesel engines, can be much greater.

However, in neighborhoods located within a half mile to a mile of industrial facilities, health risk from

industrial pollutants can greatly outweigh risks from other sources. Because Cleaner Air Oregon focuses

on understanding and managing the risk to people living near industrial facilities, the percentage of

industrial contributions statewide is not the key consideration in understanding and managing

neighborhood level risk from toxic air contaminants.




658, 733, 764, 754

Comment Category #16: Applicability - don't include natural gas and propane

emissions in ranking calculation

Description: Commenter supports the special treatment of natural gas and propane. DEQ should omit

risk from air toxics emitted solely from the combustion of natural gas or propane from Equation 2 in risk

assessments and in ranking for call-in.


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Response: DEQ is proposing to exclude risk from combustion of natural gas, propane, liquefied

petroleum gas, pretreated landfill gas and pretreated digester gas or biogas when comparing site risk-to-

risk action levels. Potential risk from the combustion of those gases must still be estimated and included

in the risk assessment for informational purposes.

DEQ also intends to exclude emissions from natural gas, propane, liquefied petroleum gas, pretreated

landfill gas and pretreated digester gas or biogas from the prioritization process. DEQ has removed

detailed procedures for prioritizing sources for call-in from the rules, and placed this information in the

Draft Cleaner Air Oregon Initial Facility Call-in Prioritization Protocol.

DEQ agrees with the commenter. No rule change needed in response to this comment.



Comment Category #17: Applicability - exempt air toxics from air pollution

control devices

Description: DEQ’s establishment of a new regulatory program should not penalize sources for

complying with requirements imposed through existing regulatory programs. DEQ should specifically

exempt air toxic emissions that result from the installation and operation of a control device required

pursuant to Best Available Control Technology, New Source Performance Standards, National Emissions

Standards for Hazardous Air Pollutants or any other state or federal regulation from inclusion in a risk

assessment or risk reduction plan.

Response: In most situations, operation of a control device does not generate emissions of toxic air

contaminants. However, there are some examples including ammonia emitted from selective catalytic

reduction and selective noncatalytic reduction control devices when urea is used as part of those

systems to control nitrogen oxide emissions.

In cases where operation of an air pollution control device does lead to toxic air contaminant emissions,

DEQ is proposing not to exclude that risk from CAO risk assessments. In the case of thermal oxidizers,

DEQ specifically required inclusion of the exhaust gases from the thermal oxidizer in the risk assessment.





Item G 001201


Comment Category #18: Applicability - exempt backup power generation

because of natural disaster

Description: Emergency and standby generators employing TBACT or operating in compliance with state

and federal regulations should be excluded, regardless of size. By their nature, these generators operate

in periods of emergencies or grid instability, or for testing and maintenance purposes and to provide

potable water during power outages. Clearly, operations under these circumstances are designed to be

infrequent, and in service to mitigating or preparing for emergency power failures where loss of power

could have significant and unintended impacts.

Though generators under 3,000 HP are exempt from the proposed rules, diesel backup generators

enrolled in the Dispatchable Standby Generation Program through Portland General Electric are not

exempt regardless of size. Many utilities have enrolled in this program as a cost-effective way to provide

Oregonians with a reliable source of power for the treatment and pumping of drinking water and

operate under an Air Contaminant Discharge Permit. As written, the proposed rules would require the

entire facility to be included in the air quality analysis if that facility has a diesel generator enrolled in

the Dispatchable Standby Generation program. This means that utilities will be required to report

fugitive emissions from various points in the water treatment processes that would otherwise be

exempt from regulation. Calculating fugitive emissions from drinking water treatment processes will

create a challenge for public entities because there are no established emission factors for estimating

toxic emissions from drinking water treatment plants.

Response: DEQ defines the following emergency generators as categorically insignificant activities and

not subject to Cleaner Air Oregon:

Emergency generators and pumps used only during loss of primary equipment or utility service due to

circumstances beyond the reasonable control of the owner or operator, or to address a power

emergency, provided that the aggregate horsepower rating of all stationary emergency generator and

pump engines is not more than 3,000 horsepower. If the aggregate horsepower rating of all stationary

emergency generator and pump engines is more than 3,000 horsepower, then no emergency generators

and pumps at the source may be considered categorically insignificant.

The Excess and Emergency Provision rules in division 214 apply to sources required to be permitted

under Cleaner Air Oregon as they do to all sources required to have operating permits. Sources with

emergency generators that are categorically insignificant would not be required to include any

emissions from those generators in a CAO risk assessment.

Sources with emergency generators that are not categorically insignificant would be required to include

emissions from non-emergency service (maintenance checks and readiness testing) in a CAO risk

assessment, but would not be required to include emissions from emergency use.

Similarly, generators that are not emergency-only would be required to include emissions from non-

emergency service (maintenance checks and readiness testing) in a CAO risk assessment, but would not

be required to include emissions from emergency use. For example, if a facility has a generator enrolled

in Portland General Electric’s Dispatchable Standby Generation program, that generator is not

considered an emergency-only generator. While enrolled in this program, PGE can power up that


Item G 001202


generator during grid shortages that are not outages. Operation during those time periods would not be

considered “emergency operation”.

Please see also Category #144: Exempt TEUs - include emergency generators.



Comments linked to this category: 842, 84, 355, 481, 505, 556, 624, 639, 770, 754

Comment Category #19: Applicability - exempt health and safety-related

facilities

Description: Facilities sited for the health and safety of the public like drinking water treatment facilities,

landfills, other waste disposal sites and publicly owned treatment works should be exempt because it

will be effectively impossible to do an effective, representative and reliable risk assessment and

potential to emit assessment that the rule envisions because emissions at these facilities include fugitive

and inputs that cannot be characterized or controlled.

The location of drinking water treatment facilities, landfills, POTWs and other essential public facilities is

dictated by population, geography, natural resources, land use regulation and other legal requirements

to provide essential public services. It may not be possible to relocate these types of facilities.

Furthermore, facilities may be required to upgrade treatment processes or build new facilities to adapt

to changing environmental and source water conditions and regulations, support growing populations

and thriving industry, or make systems more resilient to potential emergency and catastrophic events.

The Oregon Health Authority, in accordance with recommendations in the Oregon Resilience Plan, is set

to adopt rules to require water providers to perform risk assessment and mitigation plans as part of

their water system master plan updates. In order to continue providing constant and safe drinking

water, water providers suggest making water treatment facilities exempt. Short of an exemption, a path

to approval for new or existing sources in Multi-Source Risk Areas should be included in the proposed

rules.

Response: Facilities sited for health and safety of the public are included in toxic air contaminant

programs in other areas of the country. Emission factors to estimate toxic air contaminant emissions are

available from other agencies, including the South Coast Air Quality Management District. DEQ regulates

publicly owned treatment works, both for air and water emissions. The Oregon Health Authority

regulates drinking water treatment facilities. For drinking water treatment facilities, EPA does the risk

assessments to set the standards for these facilities and the facilities have to meet those standards.

DEQ anticipates that the potential risk from facilities sited for health and safety of the public to be low,

therefore, few requirements will be placed on these sources. If potential risk is high, the health of

communities living nearby must be protected and risk reduction may be necessary.


Item G 001203


Senate Bill 1541 adopted into law by the 2018 Legislature created a Pilot Program “for evaluating and

controlling public health risks from toxic air contaminant emissions from multiple stationary air

contamination sources.” The current draft of the Cleaner Air Oregon rules contains no reference to Area

Multi-Source risk. DEQ will be undertaking a separate rule-making effort to establish the pilot program

to evaluate and control public health risks from multiple facilities. See previous response to "Area Multi-

Source Risk Determination - do not penalize businesses because of land use laws and prohibit expansion

if other sources in the area cause exceedance of the Risk Action Limit." DEQ does not expect any source

to relocate because of the Area Multi-Source Risk proposed rules.



Comments linked to this category: 841, 870, 892, 84, 481, 639, 754, 770

Comment Category #20: Applicability - exempt PGE coal-fired power plant

Description: DEQ should exempt the PGE coal-fired power plant because it is required by law to stop

burning coal in the year 2020.

Response: OAR 340-223-0030 requires that the Foster-Wheeler Boiler at the Boardman coal-fired power

plant permanently cease burning coal no later than December 21, 2020. Under the timelines in the

proposed rules, even if PGE Boardman were one of the first sources to be called in and risk reduction

were required, it is likely that implementation of risk reductions would not be required before that date.

DEQ has added criteria to the Draft Cleaner Air Oregon Initial Facility Call-in Prioritization Protocol that

allows DEQ to consider additional factors when prioritizing sources for call-in. Two of these criteria

include DEQ’s knowledge of changes in a source’s toxic air contaminant emissions not captured in the

emissions data used in the ranking equation, and the efficient allocation of DEQ resources. Based on

these two criteria, DEQ would not call the PGE coal-fired power plant into Cleaner Air Oregon.

DEQ agrees with the commenter but a rule change was not needed in response to this comment.



Comment Category #21: Applicability - exempt rural businesses

Description: Rural businesses need to be exempted from the rules. Further regulation of small, county-

owned and operated rock crushing and asphalt mixing plants, located in the most rural counties due to

the large cost of having contractors supply building materials to public works departments, could

potentially force these operations to shut down. The benefits to air quality will be minimal.


Item G 001204


Response: The proposed Cleaner Air Oregon program is intended to address health risks from toxic air

contaminant emissions to people near industrial facilities. In some rural areas, industrial facilities are far

away from residences and other exposure locations, which would mean lower risk and reduced

likelihood that the facility would be required to take action. However, other rural facilities are near

residences or other receptor locations. DEQ feels that all Oregonians deserve to breathe clean air, so

under the proposed rules, facilities in rural areas would not have separate or higher Risk Action Levels

than facilities located in other areas.



Comments linked to this category: 301, 773, 772, 738, 934, 751, 750

Comment Category #22: Applicability - exempt sources or TEUs subject to a

NESHAP that has undergone Risk and Technology Review

Description: Plants that are subject to a Maximum Achievable Control Technology standard in a National

Emission Standards for Hazardous Air Pollutants for which EPA has completed the Risk and Technology

Review process should be completely exempted from the CAO rules. Any piece of process equipment

that is compliant with a MACT standard should be presumed to employ TBACT because MACT is

indicative of the highest degree of toxics control. However, where a source has completed the RTR

process then it should not have to contemplate another state driven site-specific risk assessment as that

is an unnecessary duplication of effort that has already been completed by EPA.

Response: Under SB 1541, a facility that meets a National Emission Standard for Hazardous Air

Pollutants (NESHAP) developed for major (Title V) sources is presumed to meet TBACT, if the NESHAP

results in actual reductions of the toxic air contaminants, and does not allow other toxic air

contaminants proposed for regulation by Cleaner Air Oregon to pose material risks. A completed EPA

Risk and Technology Review is not necessary for a NESHAP to be considered TBACT, as was required in

the original draft rules.

Under the proposed rules, facilities with risk above the TBACT Level (50 in a million cancer risk, or a

Hazard Index of 5), would be required to reduce risk to below that level or demonstrate that all

significant emissions units have TBACT. If a facility has TBACT on all significant emissions units, then risk

reductions would not be required unless risk exceeds the Risk Reduction Level (200 in a million cancer

risk, or a Hazard Index of 10).



Comments linked to this category: 906, 505, 611, 623, 665


Item G 001205


Comment Category #23: Applicability - regulate all sizes of glass fibers

Description: DEQ should discontinue averaging the size of glass fibers that are classified as hazardous air

pollutants. Hollingsworth & Vose operates two glass-fiber plants in separate buildings; one plant

produces glass fiber 1 micron in diameter and the second plant produces fiber that is 3 microns or

greater in diameter. Only glass fiber particles 1 micron in diameter are considered hazardous air

pollutants. By averaging the two sizes of particles, they come up with a number larger than 1 micron,

giving an erroneous conclusion that there are no HAPs emitted. It allows H & V to not capture the

smallest particles which are Hazardous Air Pollutants. The averaging of the glass fiber particles does not

make the health hazard of the 1 micron in diameter HAPs to go away.

Response: EPA defines fine mineral fibers, a listed Hazardous Air Pollutant, as "mineral fiber emissions

from facilities manufacturing or processing glass, rock, or slag fibers (or other mineral derived fibers) of

average diameter 1 micrometer or less.” Hollingsworth & Vose produces special purpose fibers, which

are a subset within the glass wool category. The average diameter of their glass fibers is greater than

one micron, and therefore, they are not defined as a HAP. In addition, the International Agency for

Research on Cancer has determined glass filaments, glass wool, rock wool, and slag wool to not be

classifiable as to their carcinogenicity to humans.

Even though the glass fibers emitted by Hollingsworth & Vose are not regulated toxic air contaminants

(they do not have a risk-based concentration), these fibers are regulated as particulate matter

emissions, which is one of the six federally regulated criteria pollutants. Therefore, the facility is

required to control their particulate emissions and has installed new state of the art dry ceramic filter

particulate controls. Ceramic filters offer the ability to operate under high temperature conditions and

are extremely good at filtering out submicron particles. For example, in the secondary aluminum

industry, ceramic filtration units have achieved greater than 99% control efficiency for particles smaller

than 1 micron. Therefore, H&V anticipates that it will have a high level of control for those particles that

are 1 micron or less and will be required to source test once the ceramic filters are installed to

demonstrate particulate matter control.

Since the glass fibers emitted by Hollingsworth & Vose are not regulated toxic air contaminants, the

most appropriate standard to evaluate fiber concentrations is the workplace National Institute for

Occupational Safety and Health Recommended Exposure Level of 3 fibers/cc. H&V conducted ambient

fiber monitoring in December of 2016. Results of analysis reported that of the 76 samples collected, the

mean onsite concentration was 0.00089 fibers/cc and the mean background concentrations was

0.00035 fibers/cc. DEQ conducted ambient fiber analysis in July of 2017. Of the 43 samples collected and

analyzed by phase contrast microscopy, 42 were non-detect. One sample reported a detection of 0.002

fibers/cc. Moreover, the facility conducted long-term ambient fiber monitoring from 1997-1998. Results

of analysis reported fiber concentrations ranging from 0.00001-0.00159 fiber/cc. The highest on-site

reading was 0.00159, and the highest result in the neighborhood was 0.00020 fibers/cc. DEQ approved

discontinuation of the monitoring in 1998 due to low fiber counts.




Item G 001206


Comments linked to this category: 20, 206, 226, 259, 265, 280, 300, 308, 321, 444, 759, 757, 758, 760

Comment Category #24: Applicability - Regulate by TEUs not whole facility and

include emission thresholds

Description: Regulate for single emission units and discontinue averaging of hazardous air pollutants.

New or modified TEUs should have a permit off ramp based on emission level. Rather than submitting a

new risk assessment for each and every modification or new TEU, facilities should be allowed to

evaluate the emission levels and make a determination about significance based on that. Washington

State uses a list of Small Quantity Emission Rates to assist in this evaluation and it is much more cost

effective for facilities that are making small incremental changes to their air toxics emissions. Oregon’s

cumulative risk assessment approach should be reserved for substantial changes that may significantly

affect cumulative risk. To maintain a competitive edge, Oregon businesses need a method that allows

flexibility and a nimble approach that does not require lengthy and costly evaluations that require

significant time to process for every product or raw material change, regardless of how minor.

Response: Under the proposed CAO rules, facilities would not be required to obtain construction

approval for new Toxic Emissions Units (TEUs) through CAO unless the new TEU triggers New Source

Review, or if they have already been issued a CAO Toxic Air Contaminant Permit Addendum. Aside from

that scenario, facilities would obtain construction approval through the existing air quality program, as

they do now. DEQ has included provisions for construction of exempt TEUs, TEUs that are included in

the Aggregate Significant TEU Level, and significant TEUs which are in alignment with existing

construction approval rules and procedures to assess risk from toxic air contaminant emissions.

DEQ originally considered emissions rates for screening TEUs and sources but decided against them

because of the cumulative approach used in Cleaner Air Oregon. If a source emitted 60 toxic air

contaminants and each was allowed a 1 in 1 million cancer risk, then cumulatively the potential risk

could be quite high.

The proposed Risk Action Levels would apply to cumulative risk from all TEUs and all toxic air

contaminants emitted by those TEUs. In some cases, CAO permit limits may be set on an individual TEU

basis. DEQ responded to comments about averaging of glass fibers in a separate category called

"Applicability - regulate all sizes of glass fibers".



Comments linked to this category: 13, 25, 206, 259, 280, 300, 308, 321, 594, 631, 759, 760

Comment Category #25: Applicability - regulate new and modified sources only,

not existing sources


Item G 001207


Description: CAO should not regulate existing sources. Only new or modified sources should be

regulated under CAO.

Response: Existing facilities should be subject to Cleaner Air Oregon because they have the potential to

emit toxic air contaminants that impact local communities, just as new and modified sources. SB 1541

set benchmarks for existing and new or reconstructed sources. The proposed rules include the

benchmarks set in statute.




Comment Category #26: Applicability - should include limits on greenhouse gas

emissions

Description: Incorporate the caps used in cap and trade with the caps in the proposed rules.

Response: The cap and trade program is a market-based greenhouse gas (GHG) reduction program that

would establish a firm and declining limit on most of Oregon’s GHG emissions. The program creates a

marketplace that could be linked to existing cap-and-trade programs in California and Quebec. Toxic air

contaminants regulated under Cleaner Air Oregon do not include greenhouse gases.




Comment Category #27: Applicability - should not require de minimis or exempt

sources to pay CAO annual fees

Description: Facilities that have a Title V or ACDP but consist only of exempt TEUs should not have to

pay CAO fees. As with exempt sources, de minimis permitted sources must pay additional annual fees

under the CAO Rules. This requirement should be deleted from the CAO Rules.

Response: DEQ is proposing to fund the Cleaner Air Oregon program with a base fee paid annually by all

permitted facilities, plus activity fees paid by facilities that are called-in to the program. The CAO base

fees would be a percentage of existing permit base fees, so that they are higher or lower in rough

proportion to the size or complexity of the facility. Facilities with few emissions units are likely to have

General or Basic Air Contaminant Discharge Permits, with lower base fees, so their CAO base fee is also

low.


Item G 001208


DEQ would still incur costs to administer CAO for exempt and de minimis facilities. All permitted

facilities, including those that would be exempt or de minimis under CAO, will be required to submit

triennial emissions inventory information. For exempt or de minimis sources, DEQ would need to do

periodic review to determine that they continue to be exempt or de minimis.




Comment Category #28: Applicability - supports applying statewide

Description: Commenter supports statewide applicability of the Cleaner Air Oregon program.

Response: DEQ agrees with the commenter that Cleaner Air Oregon should apply statewide. All

Oregonians deserve to breathe clean air, regardless of whether they live in a rural or urban area.




506, 515, 537, 564, 638, 758, 719, 785, 796, 801, 793

Comment Category #29: Applicability - supports including new, modified and

existing sources

Description: The commenter supports including existing, modified, and new facilities. It is very

important not to grandfather-in older plants under old rules.

Response: DEQ agrees that existing, modified, and new facilities should be subject to Cleaner Air Oregon

because they all have the potential to emit toxic air contaminants that impact local communities.




793, 709, 703


Item G 001209


Comment Category #30: Calculations - create an alternative method for

calculating risk from fugitive sources

Description: The CAO Rules state that the Level 1 risk assessment tool is not appropriate for use at

sources with fugitive emissions, such as those from wastewater treatment units. Thus the calculation of

the score for a POTW will include an estimate of emissions that may not accurately represent source

emissions and will use a risk assessment tool that is not allowed under the CAO Rules.

DEQ should create an alternative method for calculating initial risk for sources with fugitive emissions,

including POTWs, hospitals that use disinfectants and other processes. This places an additional burden

of more detailed risk assessment upon them, when they should be exempt from any requirements

because of their public service function.

Response: In response to this comment, DEQ developed a Level 1 risk assessment tool that facilities

could use to assess risk from fugitive emissions. Since the initial CAO emissions inventory did not include

specific questions about fugitive emissions, DEQ plans to use the Lookup Table for stacks or point

sources for initial prioritization. Although the Lookup Table for stacks will typically overestimate risk

from stacks and underestimate risk from fugitive emissions, the assessments will be roughly comparable

since these assumptions will be used for all sources. After the initial sources have been selected, they

will be required to perform any of the Level 1 through 4 risk assessments to estimate risk.




Comment Category #31: Calculations - cumulative risk from all TEUs is overly

conservative

Description: Cumulative risk for sources with multiple toxics emission units (TEUs) is calculated at the

maximally exposed receptor. Potentially, TEU-specific maximum impacts occur at different receptor

locations, and adding these impacts is unrealistic, suggesting higher exposures and risks than are likely

to be present.

Response: Levels 1 and 2 Risk Assessments evaluate risks from individual stacks or emission points

(Toxic Emissions Units) at the nearest exposure receptor to that stack. At these analysis levels, the

maximum risks from individual stacks may occur at different receptor locations but are being added up

as though they were at one exposure location, giving an intentionally conservative result. Level 3 and 4

Risk Assessments, which use the computer model AERMOD, do not include that extra layer of

conservatism because all Toxic Emission Units are modeled together and the maximum modeled impact


Item G 001210


at the exposure location includes contributions from all emission points at the same time. Sources can

choose which level of risk assessment to perform, based on the complexity of their facility and the level

of risk they pose.




Comment Category #32: Clarify that the regulations are not intended to be used

as evidence of liability or risk in third party suits

Description: The commenter recommends DEQ seek and obtain legislation to clarify that the regulations

are not intended to be used as evidence of liability or risk in third party suits.

Response: This is not a comment on the Cleaner Air Oregon rules.

DEQ did not change the rules in response to this comment.



Comment Category #33: Cleaner Air Oregon - assess impacts of rules and ensure

they are workable

Description: More time should be allowed to assess the impacts of the rules and ensure they are

workable for Oregon businesses. This program may cost facilities millions of dollars so it is important

that we make sure that there is defensible evidence-based science behind the risk values and that the

program will achieve measurable public health benefits commensurate with the impact this will have on

businesses and taxpayers. DEQ should take the time to conduct multiple full-scale risk assessments to

make projections about the amount of health improvement that will be achieved and to justify the Risk

Action Levels chosen.

Response: Senate Bill 1541 has established funding, standards, and procedures for a reasonably health

protective, science-based and predictable Cleaner Air Oregon program. Compared to the first draft of

the rules, the second draft, incorporating Senate Bill 1541 requirements, will allow both industry and

DEQ the flexibility and opportunity to fully evaluate risk assessments that could lead to health protective

emission reduction measures. There is no reason to delay the orderly and reasonable technical

assessment process of Cleaner Air Oregon that will reveal where there are higher risks to public health,

and where there are not.



Item G 001211



Comments linked to this category: 880, 141, 314, 348, 390, 594, 746, 739, 741

Comment Category #34: Cleaner Air Oregon - consider incentives rather than

restrictions

Description: Please consider working with the business community to help resolve issues rather than

mandating regulations. Consider incentives instead of restrictions.

Response: DEQ has included in the proposed rules an opportunity for sources whose potential risk is

between 25/1 and 50/5 to reduce risk to below 25/1 by submitting a Voluntary Risk Reduction Plan. If a

source chooses to voluntarily reduce risk to below 25/1, a community engagement meeting would not

be required for that source. In addition, sources have submitted their initial emission inventories, and

can use this information to screen for and assess their potential risk. Those with emissions above risk

action levels, especially if they are in a lower priority call-in category that will take longer for DEQ to

implement, may have an opportunity to decrease risk to avoid regulatory requirements.




Comment Category #35: Cleaner Air Oregon - creates uncertainty for businesses

Description: The proposed CAO rules create significant business uncertainty. The rules are extremely

complicated and it is difficult to reasonably determine the impact of the rules to our operations. Sources

must first perform a complete risk assessment in accordance with the procedures established in the

proposed rules. It is expensive to conduct those assessments, particularly when the risk assessment

procedures might change in the final rule as they have during the rule development. Without

completing risk assessments in accordance with the required procedures for all our mills it is impossible

to evaluate potential the cost of this rule. Second, facilities cannot reasonably determine when they

might be required to comply with the CAO rules because we cannot determine which, if any, of our

facilities are in the top 80 that will be required to conduct risk assessments.

Response: DEQ changed the proposed draft Cleaner Air Oregon to make the rules more concise and

clear. The original draft rules were very long and detailed, and DEQ erred on the side of putting in a lot

of process and procedures, given the newness of this program to DEQ. In reconsidering, DEQ removed

much of these process details to procedure documents. In addition to this streamlining process, DEQ re-

ordered some of the sections to make requirements clearer. These changes will make implementation

easier to meet business and community needs. These changes will also help integrate the Cleaner Air

Oregon permitting requirements into DEQ’s existing air quality permitting program.


Item G 001212


Sources are not required to complete a full Level 4 risk assessment. They can use the level of risk

assessment that estimates their potential risk to be less than the applicable Risk Action Level or "screen

out." If the source can screen out at the conservative Level 1, then no further assessment is required. If

the source cannot screen out at Level 1, that source could choose to use the Level 2, 3 or 4 risk

assessment, whichever level allows them to screen out.

The Level 1 Risk Assessment is very simple and can be done in a spreadsheet. It only requires a source to

estimate risk using emissions, stack heights and distances to exposure locations, information readily

available to sources. The Level 2 risk assessment requires modeling using AERSCREEN, a model currently

used by DEQ and sources for criteria pollutant analysis. The Level 3 risk assessment uses the model

AERMOD, also currently used by DEQ and sources. Level 4 risk assessments are described in the Draft

Recommended Procedures for Conducting Toxic Air Contaminant Health Risk Assessments. Level 4 uses

the same AERMOD modeling results and takes into account exposure scenarios. DEQ agrees that the

details regarding the risk assessments may change but the computer modeling requirements will not. A

source can use computer modeling to estimate risk to see if the potential risk is over any Risk Action

Level. The exposure scenarios used in the Level 4 Risk Assessment will generally reduce potential risk so

the modeling will give a good indication of whether potential risk is above any Risk Action Level.

SB 1541 provided certainty by setting certain benchmarks and action thresholds. The risk action level is

set at 4 times the cancer benchmark and 2 times the noncancer benchmark, which is the “TBACT” Risk

Assessment level. Under SB 1541, existing facilities with TBACT cannot be required to further reduce risk

if they are below these threshold levels. All facilities must get below this level, even if they have TBACT

on all significant emissions units.

If the Environmental Quality Commission approves the proposed Cleaner Air Oregon rules, DEQ will

begin ranking sources shortly after to determine which sources will be called-in first. A source can also

voluntarily submit an application for a Toxic Air Contaminant Permit Addendum before DEQ calls them

into the Cleaner Air Oregon program. DEQ will process the addendums upon submittal, as resources

allow.




Comment Category #36: Cleaner Air Oregon - DEQ, OHA and business should

collaborate more

Description: Commenter advocates for a better collaboration between the Department of

Environmental Quality, Oregon Health Authority and some of the commercial and industrial businesses

who have voiced concerns over the draft rule in its proposed form. Improved collaboration will ensure

that the result will produce a policy that not only addresses the issues that threaten public health but

that it works to preserve the livelihood and investments that have been made by these businesses.


Item G 001213


Response: Since the beginning of Cleaner Air Oregon development efforts in 2016, DEQ and OHA have

engaged extensively with both business and public interest stakeholders to formulate a health

protective, science based and predictable regulatory program. This process continued through the first

public comment period in Fall 2017, the Winter 2018 legislative process on Senate Bill 1541, and the

second public comment period in Summer 2018. Compared to the first draft of the rules, the second

draft, incorporating Senate Bill 1541 requirements, will allow sources more flexibility in risk assessment

and risk reduction - both of which will decrease business fiscal impacts. DEQ will continue to

communicate effectively with stakeholders on Cleaner Air Oregon, and looks forward to collaborating

with sources by providing technical assistance, pollution prevention assistance and best practices for

community engagement.




Comment Category #37: Cleaner Air Oregon - DEQ should revise and reissue the

proposed rules for additional public review after addressing comments

Description: To adequately address the significant issued raised in comments, DEQ should revise and

reissue the proposed rules for additional public review and comment. [Note: this statement was made

during the first public comment period.] The commenter believes that significant changes must be made

to the proposed rule, and that even where significant changes to regulatory language are not necessary,

DEQ needs to more adequately and completely explain it's basis and rationale for the proposed

approaches.

[merged from category 'Cleaner Air Oregon - extend public notice period']

We believe that DEQ's comment period does not provide sufficient time for affected parties to comment

meaningfully, and respectfully request that DEQ extend the comment period for the proposed CAO rules

by a minimum of 90 days.

[merged from category 'Rule Timing - Slow down, revise, renotice']

Commenters strenuously object to DEQ moving forward with the rules, as proposed. We urge DEQ to

slow down and take the time it needs to improve the rules' substance, analyze the pertinent scientific

information and assess the rules' true impacts. Then, and only then, we ask that DEQ issue a refined set

of proposed rules for further public comment. Failure to do so would deny commenters the ability to

meaningfully comment on the proposed program in violation of the Oregon Administrative Procedures

Act.

Response: DEQ made several changes in the latest draft of the CAO rules, and many things remain the

same. In particular, significant updates mandated by Senate Bill 1541 required renoticing of the rules for

additional public comment. In addition to SB 1541, DEQ and OHA developed the current draft of the


Item G 001214


rules by considering comments received during the first public comment period, which ran for 90 days,

ending in January 2018. DEQ received over 4000 individual comments during this time. After the

passage of SB 1541, DEQ reconvened the existing Advisory Committee in May. DEQ completed an initial

draft of revised rules, and asked the Committee to review this draft and provide feedback. DEQ received

many comments from the committee that it considered in the current draft.

DEQ also made several changes to make the rules more concise and clear. DEQ also streamlined the

rules by placing several lengthy procedural requirements into procedure documents rather than rules.

DEQ re-ordered some of the sections to make requirements more clear. These changes will make

implementation more flexible to meet business and community needs. These changes also will help DEQ

integrate the Cleaner Air Oregon permitting requirements into DEQ’s existing air quality permitting

program. The basis and rationale for Cleaner Air Oregon Program elements is described in the final Staff

Report to the Environmental Quality Commission as well as numerous records of Cleaner Air Oregon

Advisory Committee records.


[merged from category 'Cleaner Air Oregon - extend public notice period']

DEQ and OHA have worked hard during the course of the Cleaner Air Oregon rulemaking effort to

provide adequate and sufficient time for stakeholder review and comment of draft rules. This includes

the first public comment period, which lasted 95 days in the fall and winter of 2017. Combined with the

latest 43-day public comment period, that represents an unprecedented 138 days for public comment.

At the request of the Rules Advisory Committee members, DEQ also released preliminary drafts to

committee members to review before releasing the draft to the broad public. We acknowledge that the

most recent draft rules have changed from earlier versions, but maintain that the regulatory framework

underpinning the program has not. In fact, this draft represents an intentional and significant

streamlining of the rules designed to provide clarify for regulated parties. DEQ will not be extending the

public comment period.

[merged from category 'Rule Timing - Slow down, revise, renotice']

Cleaner Air Oregon has undergone extensive research, analysis, consideration and stakeholder input

over its two and a half years of development. This included 18 months of technical and advisory

committee meetings, a first public comment period, legislative consideration producing Senate Bill 1541,

and a second public comment period. In addition, two components of the program, consideration of a

lower hazard index for some toxic air pollutants and development of a multi source pilot program, are

on a later schedule for development, providing additional opportunities for public input and agency

analysis.





Item G 001215


Comment Category #38: Cleaner Air Oregon - do not take on statewide air toxics

program until existing program fully implemented

Description: DEQ should put its resources into reducing the backlog for processing renewals for its

existing ACDP and Title V air permit programs, rather than starting the Cleaner Air Oregon program.

Response: In establishing and funding Cleaner Air Oregon, the 2018 legislature provided adequate

funding authority for implementation of the program. In addition, the 2018 legislature provided DEQ

with positions to reduce the existing ACDP and Title V permit backlog in response to a 2017 Secretary of

State audit that showed the need for those resources. Together, these funding increases mean that DEQ

will have the resources to implement Cleaner Air Oregon while eliminating the existing permitting

backlog.




Comment Category #39: Cleaner Air Oregon - do not take time to evaluate,

measure or monitor risk, instead require controls upfront

Description: The number and types of pollutants are known. The impact on the public health has been

studied. We would save money by cleaning up Oregon's air in health care cost alone. For my own

knowledge I don't need to know more about the substances in the air that I breathe in my

neighborhood. I know that we have high levels of diesel and benzene, both are known to cause cancer.

The large polluters and the small polluters all need to be regulated. Please don't distract yourself by

endless measuring. Use your energy and money to provide relief. Require scrubbers on stacks, require

businesses to pay to monitor their exhaust. The state will save money in the long run. Compare the price

of cleaning the air to cancer treatment and you will find the savings.

Response: The proposed rules are both science based and health protective. To understand public

health risk from toxic air contaminants and effectively reduce it, scientific assessment and analysis is

necessary. Similar to other state's risk based toxic air contaminant permitting programs, Cleaner Air

Oregon rules would rely on estimation of risk through a tiered modeling process incorporating four

different levels of complexity. Sources with little to no risk could screen out using analyses that

incorporate protective assumptions in a look up table or screening model called AERSCREEN. Those not

screening out using AERSCREEN analysis would proceed to the more comprehensive model called

AERMOD and have the option of performing a health risk assessment. This tiered process of risk

assessment is efficient, uses information that is largely available through the current emission

inventories and facility parameters, and involves no monitoring or measurement. There is an added

benefit that communities in proximity to sources will have access to detailed information about

emissions and any potential impacts to public health.

Sources whose potential risk is above the TBACT Level are required to install Toxics Best Available

Control Technology while sources whose potential risk is above the Risk Reduction Level are required to


Item G 001216


reduce risk even beyond what TBACT requires. DEQ has also included in the draft rules an opportunity

for sources whose potential risk is between 25/1 and 50/5 to reduce risk to below 25/1 by submitting a

Voluntary Risk Reduction Plan. If a source chooses to voluntarily reduce risk to below 25/1, a community

engagement meeting would not be required for that source. Southern California has successfully used

this voluntary approach to reduce risk.




Comment Category #40: Cleaner Air Oregon - make process transparent and

information / permits available online

Description: Commenter requests agency transparency to know what exactly you are permitting to go

into our air, water and soil.

Response: DEQ agrees with the commenter and plans to make all Cleaner Air Oregon submittals and

approvals, including permits, available on DEQ's website.



Comments linked to this category: 812, 815, 822, 829, 837, 924

Comment Category #41: Cleaner Air Oregon - need to check for conflict with

water regulations

Description: Water and wastewater treatment facilities are subject to water quality requirements,

including the use of disinfectants. DEQ should be sure that CAO requirements are not in conflict with

water permitting requirements.

Response: Based on conversations with DEQ water quality staff, DEQ air quality staff do not believe that

the proposed CAO rules would pose an unwarranted conflict with the Clean Water Act or Safe Drinking

Water Act requirements faced by municipal water and wastewater treatment plants. DEQ does not

anticipate that toxic air contaminant emissions from these facilities would pose high risk. If they did, the

technical feasibility and cost of alternatives would be considered in determining whether their current

operations qualify as TBACT.



Item G 001217




Comment Category #42: Cleaner Air Oregon - should address bio-accumulative

or synergistic impacts

Description: The rules should address bio-accumulative or synergistic impacts of air pollution in humans

and the environment.

Response: The draft rules account for potential bioaccumulation of toxic air contaminants by allowing

DEQ to require multi-pathway analysis where appropriate. For some persistent chemicals, potential for

multi-pathway exposure is incorporated into Risk Based Concentrations for common exposure

scenarios. For less common exposure scenarios, risk from toxic air contaminants that may settle in water

or soil and bioaccumulate in food would be considered through the multi-pathway analysis in a Level 4

risk assessment.

Cumulative exposure to multiple toxic air contaminants could have synergistic effects that produce a

health outcome that is larger than what would be expected from simply adding individual effects of each

chemical. While scientists recognize the potential for this kind of interaction, there are currently no

science-based tools or quantitative methods to incorporate this concept into risk assessments. The draft

rules propose a risk assessment approach that considers cumulative risk from multiple chemicals using

an additive approach, which is the best available science at this time.

DEQ agrees with the commenter, but a rule change was not made in response to this comment.



Comment Category #43: Cleaner Air Oregon - Use precautionary principle

Description: Use the precautionary principle. Where scientific uncertainty exists, err on the side of

stronger, not weaker, pollution standards. When there are great uncertainties in our understanding of

the management of environmental pollution, the prudent course is to take action to prevent exposures

Response:

The draft rules propose a risk-based program that regulates facilities based on health risks. DEQ and

OHA are only able to evaluate the risk of chemicals for which toxicity information is available. The

program does not regulate use of chemicals for which health risks are not known. Risk-based regulatory

programs inherently fall short of the precautionary principle because emissions of chemicals lacking

toxicity and risk information will not be regulated. While the program would not regulate emissions of


Item G 001218


all chemicals, it would require facilities to report all of their emissions of over 600 chemicals. The toxicity

data needed to quantify and regulate health risk is only available for a fraction of those chemicals, but

emissions information for all of these chemicals will be publicly available. This information could be used

to identify regulatory gaps and research needs.

The rules also include several elements that account for uncertainty and incorporate cautious, health-

protective assumptions. For example, Toxicity Reference Values adopted from authoritative sources are

designed to be protective of sensitive populations. When there is scientific uncertainty on effects in

sensitive populations like children and the elderly, these values typically incorporate uncertainty factors

that add an additional safety buffer. The proposed risk assessment process also makes several health

protective assumptions. For example, DEQ assumes that children may be present in all residences and

that exposures may occur continuously over a lifetime of 70 years.



Comments linked to this category: 837, 846, 858, 53, 162, 498, 499, 513, 515, 551, 613, 921, 769

Comment Category #44: Comments related to ANRALs

Description: The October 2017 draft rules included a process by which facilities could apply for

Alternative Noncancer Risk Action Levels. We received comments about that process including:

- ANRALs should not be allowed

- ANRALs may increase odors, in conflict with DEQ's nuisance odor provisions

- ANRALs should be an option for all chemicals

- ANRALs - there should be no limitation on being able to request an ANRAL

- ANRALs should require community input

- Annual reporting to EQC - include ANRAL determinations

We removed the concept of ANRALs in the June 2018 public comment draft of the rules. In the 2nd

public comment period we also received comments requesting that we add the ANRAL concept back in

to the rules.

Response: DEQ removed the concept of Alternate Noncancer Risk Action Levels from the proposed draft

rules.

Eliminating ANRALs makes the program simpler and more predictable. DEQ made this change partly in

response to comments and partly in response to SB 1541. SB 1541 set health risk benchmarks that

required some Risk Action Levels to be higher than proposed rules in the first CAO public comment

period. These higher Risk Action Levels substantially reduce the range of potential flexibility provided by

ANRALs. The small increase in flexibility provided by ANRALs is not worth the additional complexity of


Item G 001219


the program and additional agency and facility resources that would be required to consider ANRALs on

a case-by-case basis.

In addition, SB 1541 provided an alternate approach to considering differences in the severity of the

health risks from different chemicals. It allows for slightly lower noncancer risk action levels for

chemicals with developmental and other severe health effects. DEQ and OHA are implementing this

alternate approach in a separate rulemaking process.


Response Type: not applicable- this concept has been dropped in the revised rules


499, 506, 552, 613, 631, 640, 760

Comment Category #45: Comments related to Area Multi-Source Risk

Description: The October 2017 draft rules included provisions to estimate and potentially reduce risk

from multiple sources in a single area. We received comments about those provisions including:

- Area Multi-Source RAL is too low/high

- Supports area multi-source risk action level of 75

- clarify selection process, strengthen language and provide a map of designated areas

- do not approve increased risk, require continued reductions and include permit denial levels

- do not penalize businesses because of land use laws and prohibit expansion if other sources in the area

cause exceedance of the Risk Action Limit

- include background risk and require reductions from these sources

- include/do not include de minimis and other exempt facilities

- supports concept with designation at 2/3 of Multi-Source RAL and caps for each community

- do not wait for DEQ designation of Multi-Source Risk Area before implementing requirements

- eliminate these areas or address in a separate rulemaking

- perform ambient monitoring to determine compliance

- should include offsets program

- use Portland Air Toxics Assessment to identify areas and consider environmental justice factors

- Community Engagement - reconcile areas for notification and define "community"

- Environmental Justice - Area Multi-Source Risk Determination needs community process


Item G 001220


- Land Use Concerns - Multi source and other CAO rules could drive business out of industrial zones and

into residential areas, contrary to land use objectives

Response: Senate Bill 1541 adopted into law by the 2018 Legislature created a Pilot Program “for

evaluating and controlling public health risks from toxic air contaminant emissions from multiple

stationary air contamination sources.” Because Senate Bill 1541 mandates specific requirements of the

pilot program, many of the comments on the Area Multi-Source rules in the first Cleaner Air Oregon

public comment period are no longer applicable. The current draft of the Cleaner Air Oregon rules

contains no reference to Area Multi-Source risk. DEQ will undertake a separate rule-making effort to

establish the pilot program to evaluate and control public health risks from multiple facilities.

The pilot program provisions of Senate Bill 1541 state that an area would be selected based in part on

the degree to which the level of excess lifetime cancer risk in the area from all sources of toxic air

contaminants exceeds the statewide mean excess lifetime cancer risk from all sources. This excess

lifetime cancer risk could include the risk from transportation sources, such as diesel engines. However,

a risk mitigation plan including emission reduction actions would only be required for new and modified

sources causing significant increases in public health risk. If a risk mitigation plan were not feasible, SB

1541 authorizes DEQ to require payment into a Clean Communities Fund for reducing local emissions to

offset the increases in health risk from industrial toxic air contaminants. DEQ could use this fund to

mitigate risk from transportation emissions or other sources of toxic air contaminant emissions such as

wood burning or unpermitted commercial activities.

DEQ will initiate a separate rulemaking for identifying, evaluating, and choosing the multi-source pilot

location. DEQ appreciates public interest in this issue. We encourage commenters to participate in the

pilot program rulemaking when it begins, and at that time make additional comments specific to the

proposal as governed by Senate Bill 1541.



Comments linked to this category: 825, 22, 24, 26, 41, 62, 81, 111, 122, 128, 138, 162, 170, 190, 193,

197, 206, 210, 216, 217, 224, 242, 244, 250, 259, 262, 265, 268, 270, 271, 275, 276, 279, 280, 281, 284,

296, 297, 300, 301, 302, 307, 308, 315, 333, 355, 375, 390, 396, 400, 418, 419, 4

Comment Category #46: Comments related to Director Consultation

Description: The October 2017 draft rules included a process by which facilities could apply for Director

Consultation to approve potential risk at higher levels. DEQ received comments about that process

including:

- do not allow

- process needs to be more clearly defined

- should incorporate public health expertise

- too much discretion


Item G 001221


- RALs - Director consultation needs public notice and comment

- RALs - Director Consultation RAL is too high

Response: DEQ has eliminated the Director Consultation concept because SB 1541 provided certainty by

setting certain benchmarks and action thresholds, as well as in response to public comments. There was

much concern about the uncertainty of how the consultation process would work.

In place of Director Consultation, DEQ created specific and transparent criteria that would allow new

facilities to exceed a cancer risk of 10 if they use TLAER, or the Toxics Lowest Achievable Emissions Rate.

This is lower than the previous hard cap of 50 and 3 on Director Consultation. DEQ made these changes

because of public comment and for consistency with other changes made to the Risk Action Levels table.

For existing sources, the new draft rules introduce an immediate curtailment level, similar to the

previous upper limit on Director Consultation. Again, DEQ made this change because of concern about

the uncertainty of how the Director Consultation process would work.




273, 280, 297, 300, 308, 309, 396, 488, 491, 499, 509, 510, 515, 552, 566, 579, 602, 613, 637, 661, 707,

723, 722, 717, 711, 695, 684, 691, 680, 667, 777, 755, 797, 686

Comment Category #47: Comments related to Hazard Index rulemaking

Description: DEQ is beginning a separate rulemaking to implement parts of SB 1541 related to setting

different hazard index Risk Action Levels for certain chemicals. The following comment on the Hazard

Index Technical Advisory Committee (HI TAC) was received:

- Including industry-paid representative of the American Chemistry Council as a member of the HI TAC is

a decision that has obvious conflict-of-interest problems.

Response:

DEQ is implementing SB 1541 provisions related to setting Hazard Index values for some chemicals as a

separate rulemaking. Comments about those rules can be submitted when that rulemaking reaches the

public comment stage. However, since choosing Hazard Index Technical Advisory Committee (HI TAC)

members will occur before the related rulemaking comment period, DEQ is providing a response here.

DEQ's goal was to include a broad group of technical experts in the 7-member HI TAC. DEQ explicitly

directed each member to disclose any client they were working for, directly or indirectly, that might

benefit from the member's work on the HI TAC. The American Chemistry Council member did not feel

there was any such conflict of interest involved with her participation in the HI TAC. Although it is

possible there may still be unconscious bias on the part of this member, or any member, her background

provides exactly the kind of expertise that DEQ needs on the TAC. The HI TAC will be evaluating a highly-


Item G 001222


specific area of noncancer toxicity related to chemicals that cause reproductive and/or developmental

effects.

Furthermore, this particular member is only one of seven members of the TAC -- five of the other six

members have not been paid by industry, and the sixth is an environmental consultant with 30 years of

experience relevant to the charge of the HI TAC, with no recognizable conflicts of interest. Of the five

mentioned, one is a USEPA toxicologist, one is a California OEHHA toxicologist, and three are academics.

DEQ considers this a balanced mix of experience for the HI TAC to have, and will prevent any one

member from having too much influence on the decisions of the committee. The TAC is not operating on

a consensus/voting basis. Rather, input from all members will be considered individually.




Comment Category #48: Comment template - see comment #115

Description: Comments that contain text in common with comment #115

Response: See categories and responses associated with comment #115.

Response Type: category for tracking only, no agency response required







219, 220, 221, 223, 225, 236, 247, 254, 257, 334, 337, 340, 349






Item G 001223








296, 306, 317, 318, 320, 460, 461, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 475, 476, 477,

479, 480, 483, 492, 493, 544, 545, 546, 547, 548, 549, 553, 554, 555, 557, 558,










Comments linked to this category: 31, 33, 34, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 50, 52, 54, 55, 56,

57, 58, 59, 60, 61, 63, 64, 65, 66, 68, 69, 71, 72, 76, 77, 81, 86, 87, 89, 95, 97, 99, 103, 105, 106, 116, 123,

134, 136, 139, 144, 196, 198, 200, 203, 204, 205, 222, 234, 237, 2






Item G 001224



Comment Category #55: Comment template -see comment #598






Description:









895, 896, 898, 900, 902, 904







Item G 001225


Comment Category #59: Community Engagement - Annual meetings for TBACT

implementation are excessive

Description: It is excessive to require a source to have annual community meetings when that source

has implemented TBACT and is complying with its TBACT Plan. Commenter suggests DEQ limit the

annual community meetings to that time frame during which TBACT is being installed so as to focus on

providing updates as the source works towards its ultimate control strategy.

Response: SB 1541 requires that DEQ hold all public meetings required in the Cleaner Air Oregon

permitting process rather than the source. This means that DEQ would plan, announce and conduct

these public meetings. The bill also required that a representative of the source attend any public

meeting DEQ holds.

DEQ has removed detailed requirements for community engagement from the draft rules, including the

requirement to hold annual meetings during implementation of TBACT, and replaced them with rules

that outline how DEQ will conduct community engagement. A future Cleaner Air Oregon community

coordinator will develop a full set of procedures and guidelines that will allow greater flexibility in

working with communities to keep neighbors informed and involved in the process. These procedures

will be based on community engagement best practices and the comments received, and there will be

an opportunity for public and stakeholder input on the procedures.

Compared to having a prescriptive process in the rules, this will allow for greater detail and flexibility to

tailor the community engagement process to the needs of communities. In developing the community

engagement procedures and guidelines, DEQ will be interested in further input on how best to

communicate permitting issues for clarity and understanding in the public engagement process. It

remains an important goal of Cleaner Air Oregon to give communities a chance to understand source

risk analysis, ask questions, and provide input into key decisions for managing risk from toxic air

contaminants.

DEQ's proposed regulations provide the flexibility to hold community engagement meetings at the time

most appropriate for each situation. In addition to other community engagement, DEQ will hold a

permit hearing and public comment process for all proposed CAO permit addendums.




Comment Category #60: Community Engagement - clarify when DEQ will hold

meetings and require sources to attend

Description: This rule provides that DEQ determines, without any restrictions or basis, to require

meetings at which it can compel the attendance of a source. There must be standards in rules for when


Item G 001226


such a meeting will be called by DEQ. This authority is too indefinite. Each meeting involves substantial

costs (fees and expenses in supporting the meeting) and significant effort by the source.




allow greater flexibility in working with communities to keep facilities and neighbors informed and

involved in the process. DEQ will base procedures on community engagement best practices and

comments received during both public notice periods, and there will be an opportunity for public and


approach will allow more flexibility to tailor the community engagement process to the needs of

communities.

DEQ is aware that the cost and time burden of conducting community meetings extends to DEQ, OHA,

impacted communities and sources. DEQ would plan community meetings based on the level of risk and

complexity associated with source emissions as well as the communication and engagement needs of

the community. It is important for DEQ to retain flexibility and discretion in community engagement

planning to ensure that the each engagement process fits the needs of individual situations.

DEQ realizes that not all community engagement meetings need to be formal meetings with agendas

and venues that hold 100 people. Those types of meetings will require sources to pay the high

Community Engagement Meeting fee. DEQ developed medium and low Community Engagement

Meeting fees for other types of meetings that are less formal, yet just as important in establishing good

communication.




Comment Category #61: Community Engagement - communication materials

should be simpler or better

Description: We support the inclusion of appropriate communication materials as accessibility is critical

to the success of any community engagement process. Suggestions to fulfill this requirement include

using plain language instead of technical jargon, making translated versions of materials available,

providing an independent expert to analyze and explain the material, and ensuring timely distribution of

materials in advance of community meetings. DEQ should strongly consider utilizing other forms of

knowledge transfer (i.e., infographics, other languages, etc.) to better display the rules and their

intended impacts. Consider experts in health literacy and reading comprehension to improve these fact

sheets.


Item G 001227


Relevant documentation should be made available to the affected community at reliable locations and

should be provided in all languages spoken by the affected community. Industrial permits and

applications available online to improve transparency and public access to this crucial information. If

source operators maintain a website, the owner or operator should be required to create a page to host

all documents related to proposed permitting actions. Within each community, the source should

identify an easily accessible community location (i.e., public libraries, schools, community centers, etc.)

for making available copies of the relevant documents. Complaint lines set up for community complaints

should include both phone and email capabilities.

There needs to be education with the Health Authority and medical providers at the very least.

Response: DEQ agrees that accessible information and effective communication is key to meaningful

public engagement in Cleaner Air Oregon. Senate Bill 1541 authorized funding for both a dedicated

Cleaner Air Oregon community coordinator and a public health educator to work with communities and

sources to keep neighbors proactively informed and involved in the process. These positions will allow

more flexibility to tailor the community engagement process and resources to the needs of

communities.




552, 599, 651, 661, 767, 726, 725, 793, 768, 700, 685

Comment Category #62: Community Engagement - community engagement

should be required for all Level 4 risk assessments

Description: The Cleaner Air Oregon rules should include an opportunity for public involvement in the

Comprehensive Health Risk Assessment process. We are concerned that there is no point at which the

affected community has a chance to review and comment on a Comprehensive Health Risk Assessment

prior to DEQ’s approval of the assessment, particularly for sources that exceed the Source Risk Action

Level and request a Risk Reduction or TBACT Plan or a Conditional Risk Level. Accordingly, we request

that DEQ add a community engagement requirement to the procedures for completing a

Comprehensive Health Risk Assessment that applies to all sources. Additionally, we request that DEQ

require the owner or operator of a source that conducts a Level 4 Risk Assessment to include the

Comprehensive Health Risk Assessment in the materials provided in the notice for community meetings

required for Risk Reduction Plans and Conditional Risk Level applications.







Item G 001228




will allow for greater detail and flexibility to tailor the community engagement process to the needs of

communities.

Whenever a source submits an application for a Toxic Air Contaminant Permit Addendum, community

engagement will be required if risk is greater than the Community Engagement Level. It is important for

the community to know that potential risk is over Risk Action Levels and the timeline for reducing risk.

DEQ has separated the application process into stages with preliminary interim approvals along the way.

• The process begins with a source submitting an emissions inventory for DEQ approval.

• All sources will be required to submit a modeling protocol, even sources performing a Level 1 Risk

Assessment to determine exposure locations.

• A source then needs a work plan for the Level 3 or 4 Risk Assessment before it can submit the final

Level 3 or 4 Risk Assessment.

All materials submitted by an applicant will be posted on DEQ's website along with draft permits. If

potential risk is above the Community Engagement Level, there will be opportunity for community

engagement during the application process in addition to public notice on the draft permit.




Comment Category #63: Community engagement - community should have

input on agenda for meeting

Description: Community meeting agendas should be formed collaboratively with community

stakeholders.







stakeholder input on the procedures.

The community engagement guidelines and procedures could include consideration of meeting formats

and content, including agendas. Compared to having a prescriptive process in the regulations, this will

allow greater flexibility to tailor the community engagement process to the needs of communities.


Item G 001229





Comment Category #64: Community Engagement - concerns with minority

language requirements

Description: DEQ should revise the rules to provide a different and reliable mechanism for identifying all

languages spoken by the community within the area of impact of a source





process.

These procedures will be based on community engagement best practices and the comments received

during the first public notice period, and there will be an opportunity for public and stakeholder input on

the procedures. Compared to having a prescriptive process in the regulations, this will allow more

flexibility to tailor the community engagement process to the needs of communities. In developing the

community engagement procedures and guidelines, DEQ plans to research language needs and is

interested in further input on this issue.




Comment Category #65: Community engagement - create a grant program for

communities and fund 2 TA staff

Description: Create a grant program for communities to increase their capacity to meaningfully

participate in the whole permitting process. We appreciate the incorporation of the detailed community

engagement plan in the rules. We believe this plan could be strengthened by the Oregon Legislature

allocating at least $500,000 in general funds to include staffing at least two community outreach

specialists to provide technical assistance and advocacy for all communities in Oregon, with a special

focus on our most vulnerable populations. Community engagement is paramount to creating a

successful program. There needs to be an ombudsman or a person directly in charge of this to ensure

meaningful implementation of this aspect of the program.


Item G 001230


Response: DEQ agrees that community engagement is a key element for a successful Cleaner Air Oregon

program, and that the concept of a grant program to help communities meaningfully participate in the

Cleaner Air Oregon process has merit. Senate Bill 1541 authorized funding for both a dedicated Cleaner

Air Oregon community coordinator and a public health educator to work with communities and sources

to keep neighbors proactively informed and involved in the process but did not provide funding for a

grant program.




Comment Category #66: Community engagement - DEQ should lead community

engagement meetings to ensure compliance with all requirements and

reconsider timing

Description: DEQ should increase the role of the regulatory agencies within the community engagement

process and reduce the number of mandatory public meetings. Any meetings between DEQ and the

owner or operator of a source regarding community engagement plans should include discussion of how

the source will ensure full compliance with environmental justice considerations.

The Community Engagement Plan needs more specificity and to be enforceable. What happens if the

presentation to community from the applicant is different than the actual application. A trust but verify

approach to permit applications and renewals is necessary to ensure accurate and trustworthy

information.

The mandatory public notification statement is potentially inflammatory and should be changed. The

proposed statement begins with “DEQ requires us to hold a community engagement meeting to discuss

the health risk from the air toxics emissions from our source.” Such a statement does not foster dialogue

or trust between company and community and sets an obligatory tone rather than a cooperative one. If

DEQ’s objective is to promote openness and engagement, this statement must be revised. The public

notification statement should be changed to something similar to the following: "[Name of company]

will hold a community meeting to describe [action being taken] and discuss potential health risks from

this proposed action."

DEQ should also reconsider the timing of a community engagement meeting, holding it after receiving

preliminary approval from DEQ rather than prior to review, which is more appropriate and aligned with

other DEQ programs. Holding the meeting before staff review could be confusing since plans may

change if DEQ finds the submitted plan is incomplete or includes mistakes.

Response: SB 1541 requires that DEQ hold all public meetings required in the Cleaner Air Oregon

permitting process rather than the source. This means that DEQ would plan, announce and conduct


Item G 001231


these public meetings. The bill also required that a representative of the source attend any public

meeting DEQ holds.

DEQ has removed detailed requirements for community engagement from the draft rules and replaced

them with rules that outline how DEQ will conduct community engagement. A future Cleaner Air Oregon

community coordinator will develop a full set of procedures and guidelines that will allow greater

flexibility in working with communities to keep neighbors informed and involved in the process. These

procedures will be based on community engagement best practices and the comments received during

the first public notice period, and there will be an opportunity for public and stakeholder input on the

procedures.

Compared to having a prescriptive process in the regulations, this will allow greater flexibility to tailor

the community engagement process to the needs of communities. In developing the community

engagement procedures and guidelines, DEQ will be interested in further input on how best to

communicate permitting issues for clarity and understanding in the public engagement process. It

remains an important goal of Cleaner Air Oregon to give communities a chance to understand source

risk analysis, ask questions, and provide input into key decisions for managing risk from toxic air

contaminants.

DEQ's proposed regulations provide the flexibility to hold a community engagement meeting at the time

most appropriate for each situation. DEQ will hold a permit hearing and comment process for all sources

to gather input on proposed permits. This hearing is also a public meeting and it is in addition to the

earlier community engagement meeting.




Comment Category #67: Community engagement - DEQ should provide a

written response to input received at CE meetings

Description: DEQ should provide a written response to comments and concerns received at community

meetings, including how concerns from the community are incorporated into next steps.








will allow greater flexibility to tailor the community engagement process to the needs of communities.


Item G 001232


DEQ agrees that a record of community concerns and agency responses is important to summarize and

clarify key issues. In the community engagement procedures and guidelines, there will be

recommendations and best practices for creating some kind of record of community input and DEQ and

OHA responses.




Comment Category #68: Community engagement - details should be specified in

rule and clarify fees

Description: DEQ should not remove the detailed requirements for community engagement from the

rules. The process outlined in OAR 340-245-0120 should include collaboration between DEQ and a local

community group to help run and collaboratively build public meeting agendas, find space and

resources to help people attend, help prepare attendees to participate within and/or after a meeting,

and disseminate information.

DEQ needs to be very specific about timelines and processes regarding community engagement. This

should go beyond sending email or mailing written notice and should include posting notice in an easily

accessible community location and the opportunity for community members to participate and provide

feedback. A meeting with impacted community members prior to writing an air toxics permit

attachment should be the bare minimum. Childcare and translation services should be provided.

Whenever possible, the cost and responsibility of community engagement should be on industry.

Language used to communicate with the public needs to be clearly communicated so the public is

informed. Increased transparency will require information technology and communication help as well

as staff dedicated to environmental justice and working as community liaisons. Transparency improves

the ability to evaluate effectiveness of the CAO program.

In addition, there should be a DEQ staff in an ombudsman role to shepherd the community through the

process. A portion of the community engagement fee or an increase to the community engagement fee

to accommodate this change should be directed to local community groups to help improve

consideration of environmental justice throughout CAO implementation. Clarify if the fees are on a per

meeting basis or a single fee for the entire permitting action.

Response: DEQ has removed detailed requirements for community DEQ has removed detailed

requirements for community engagement from the draft rules and replaced them with rules that outline

how DEQ will conduct community engagement. A future Cleaner Air Oregon community coordinator and

public health educator will develop a full set of procedures and guidelines that will allow greater

flexibility in working with communities to keep neighbors informed and involved in the process. DEQ will


Item G 001233


base procedures on community engagement best practices and comments received during both public

notice periods, and there will be an opportunity for public and stakeholder input on the procedures.

Compared to having a prescriptive process in the regulations, this will allow more flexibility to tailor the

community engagement process to the needs of communities.

DEQ and OHA drafted a plan to develop a protocol and guidelines for community engagement. DEQ and

OHA will consult with Cleaner Air Oregon stakeholders to develop the protocol and guidelines following

Cleaner Air Oregon rule adoption. The community engagement protocol and guidelines will provide

steps and resources for DEQ, OHA, impacted communities, and sources to use when forming a

community-tailored engagement plan for each source above the community involvement risk action

level.

The proposed rules would assess an owner or operator a community engagement fee for each

community engagement meeting DEQ requires for its permit. DEQ plans to hire a Community

Engagement Coordinator to lead the Cleaner Air Oregon community engagement work and efforts will

be assisted by an OHA health educator.

DEQ agrees that an effective community engagement process must analyze the impacted community,

proceed in partnership with local community groups or representatives, involve clear and thorough

communication and feedback, and ensure consideration of environmental justice issues.




Comment Category #69: Community Engagement - do not include discretionary

community engagement

Description: Do not require a source to explain in a permit document its philosophy for community

communication and relations. Sources are unique. The

locations and surrounding areas of sources are unique. Many sources have thoughtful approaches to

community relations. And yet, this requirement is a burden. For source that so choose to engage in a

manner different than envisioned by the CAO program, the source should have that right.

Response: DEQ's original intent on community engagement was for sources to engage their local

community in all situations required by Cleaner Air Oregon. Senate Bill 1541 changed that by requiring

DEQ, rather than the source, to hold all public meetings. DEQ believes that community engagement is

not limited to a formal meeting and that other options for engagement could work just as well, if not

better.

In OAR 340-245-0100(6)(h), DEQ is not requiring sources to do any particular type of community

engagement and has made continued community engagement discretionary for the owner or operator.


Item G 001234





Comment Category #70: Community Engagement - don't require discussion of

facility compliance history at meeting

Description: At community engagement meetings, facilities should not be required to discuss recent

compliance history. There may be no relevance to the air toxics emissions from the facility and this

disclosure may only serve to focus on already resolved issues and undermine the credibility and future

relationship the facility might have with the community.

Response: DEQ includes the recent compliance history in the supporting documentation for all permit

renewals, and believes that communities would find that information relevant when discussing CAO

permitting for the facility. Many Volatile Organic Compounds are toxic air contaminants, so compliance

history for non-CAO permit conditions may still involve toxic air contaminant emissions.




Comment Category #71: Community Engagement - establish higher threshold

before community engagement is required

Description: The commenter recommends that DEQ establish a higher threshold before community

engagements are implemented (i.e. > 150/million for excess cancer risk and a non-cancer index level >

15) and DEQ technical assistance and resources be available for these meetings to facilitate a positive

engagement and mitigate unwarranted reputational harm.

Response: DEQ proposes that community engagement for existing sources would begin at 25/1, the

same level as in the first draft of the Cleaner Air Oregon rules. Sources with potential risk between 25/1

and the benchmarks (50/5) established by SB 1541 can satisfy the community engagement

requirements by voluntarily committing to risk reduction measures that achieve facility risk below 25/1

within 2 years. A formal community engagement meeting (which requires participation from the source,

and many other features) would not be required for a source in the voluntary program. The approach of

allowing facilities to decide between required community engagement and voluntary risk reduction is

similar to an approach used successfully in the South Coast program in California to reduce risk.


Item G 001235


Retaining the notification level at 25/1 is consistent with past concerns related to RALs that emphasized

the importance of community notification and the opportunity for dialogue and awareness with

agencies and sources. DEQ believes that communities near sources whose risk is greater than

community engagement levels want to know about potential risks to health and have a chance to

understand source risk analysis, ask questions, and provide input into key decisions for managing risk

from toxic air contaminants, such as information about community use of nearby areas that may

improve development of exposure scenarios. Creating dialogue and communication between agencies,

sources and communities is a hallmark of the proposed program. SB 1541 did not address when

Community Engagement would be required, only that DEQ would be responsible for holding required

meetings, and that sources are required to attend such meetings.

The October 2017 rules required community engagement for new facilities above cancer risk of 5, but

the previous Table 1 summarizing RALs did not make that clear. DEQ revised the table to make this

requirement more transparent. This is not a change to the requirements for new facilities.

DEQ agrees that building public understanding about potential risk from toxic air contaminants is very

important and will have the assistance of a health educator in Cleaner Air Oregon community

engagement actions. DEQ will be interested in stakeholder input on best and most effective practices for

risk communication when developing community engagement procedures and guidelines.




Comment Category #72: Community engagement - general support

Description: DEQ needs meaningful, robust community engagement that incorporates best practices for

protecting vulnerable populations.

Response:







procedures. Compared to having a prescriptive process in the regulations, this will allow greater

flexibility to tailor the community engagement process to the needs of communities.



Item G 001236




Comment Category #73: Community Engagement - implement youth-specific

programs

Description: Implementing youth-specific programs has also been an inexpensive and effective way of

increasing awareness and involvement in affected communities. These programs have been created in

schools and community centers throughout California and have been successful in teaching younger

populations about the importance of reducing air toxics within their neighborhoods. Educating younger

populations will bring awareness to parents in affected communities, many of whom are unaware that

they live in areas impacted by source polluters. Many schools have created programs in which relevant

speakers are invited to meet with students and speak about the environmental issues affecting their

communities in an effort to increase awareness and create ways to reduce the negative impacts of

source emissions.

Response: DEQ agrees that implementing youth-specific programs can be an effective way to increase

community awareness and involvement. As DEQ develops community engagement procedures and

guidelines, DEQ will research similar efforts in other states, including California.




Comment Category #74: Community engagement - incentivize companies to

implement Good Neighbor Agreements

Description: DEQ should incentivize companies to implement Good Neighbor Agreements.

Response: DEQ has proposed incentives for sources to reduce risk by setting the community

engagement RALs at 25 and 1. Good neighbor agreements can take many forms. If the focus is risk

reduction, the community engagement RALs could potentially encourage good neighbor agreements.

While good neighbor agreements can be valuable in some situations, DEQ understands that they are

resource intensive for communities involved in them. DEQ did not specifically identify good neighbor

agreements in Cleaner Air Oregon regulations for this reason.





Item G 001237


Comment Category #75: Community engagement - include local public health

officer

Description: Add the local public health administrator to the list of officials and addresses within the

notification area for community engagement meetings.

Response: DEQ and OHA agree that they should keep local public health administrators informed about

potential health risks and opportunities for community engagement for facilities in their area. Local

public health departments are often involved in responding to local public health risks and they are

likely to receive questions about health risks from members of the community.




flexibility in working with communities to keep neighbors informed and involved in the process.

These procedures will be based on community engagement best practices and the comments received

during the first public notice period, and there will be an opportunity for public and stakeholder input on

the procedures. Compared to having a prescriptive process in the regulations, this will allow greater

flexibility to tailor the community engagement process to the needs of communities. DEQ will include

local public health departments in all public notifications from facilities regarding both potential health

risks and opportunities for community engagement.




Comment Category #76: Community Engagement - include risk screening

transparency in risk communication

Description: The Draft Recommended Guidance proposes a risk screening process that requires less

data and utilizes data that is easier to obtain in early phases, but pairs that data with extremely

conservative de minimis risk values. As the risk screening process proceeds, a higher resolution of

exposure and emissions data is required, but conservative assumptions and risk management goals are

adjusted to approach a more realistic risk assessment scenario. It is important in this process to include

risk communication guidance to inform stakeholders of various interests understand the level of safety

provided by the risk screening process.


Item G 001238


Response: DEQ and OHA agree that it is important to communicate assumptions made in different levels

of risk assessment. In Cleaner Air Oregon, DEQ and OHA will be responsible for much of the

communication around potential health risks. During the implementation phase, the agencies plan to

develop risk communication materials for internal agency use. This material will include content to

communicate the kinds of assumptions that are made at different phases of risk assessments and the

interpretation of what different risk levels mean for health.

DEQ will not make changes to the rule in response to this comment.



Comment Category #77: Community Engagement - include sources in decision to

employ different form of communication and define impacted community

Description: One aspect of the improvements in the rules is the recognition that public outreach can

take the form of communications other than public meetings. However, as currently proposed, the

decision as to whether to employ a different form of communication is solely discussed between DEQ

and members of the community. Proposed rules should be revised to include the source as the third

party to that discussion. The source may provide valuable information that is useful to the discussion

and should be explicitly included in that conversation. Furthermore, the concept of “impacted

community” in this subsection is not defined.

Response: DEQ has removed detailed requirements for community engagement from the proposed

rules and replaced them with rules that outline how DEQ will conduct community engagement. A future






approach will allow greater flexibility to tailor the community engagement process to the needs of

communities. When deciding whether to use a form of communication other than public meetings, DEQ

may ask facility owners or operators for input but will not require it in rule.

In response to the request to clarify the term "impacted community", DEQ changed the rule language to

"community in the notification area".





Item G 001239


Comment Category #78: Community Engagement - need broad notification

Description: Notification and communications to the community need to be inclusive, accessible, and

timely, especially in communities that are disproportionately impacted by environmental hazards.

Inclusivity requires mail to all addresses in what is defined as the “area of impact,” alerting sensitive

populations, translation services in any languages present in the area, and the primary usage of e-mail

only as a verifiable alternative. Accessibility requires translation services in all possible languages spoken

in the community, documentation in plain English, childcare, and the creation of locations and routes to

ensure proper access and notification. Timelines require simultaneous notifications of community

engagement meetings to DEQ and community members, ensuring that the community has sufficient

notice of events.

Response: Creating dialogue and communication between agencies, sources and communities is a

hallmark of the proposed program. DEQ agrees that inclusive notification is important for effective

community engagement. DEQ has removed detailed requirements for community engagement from the

draft rules and replaced them with rules that outline how DEQ will conduct community engagement. A

future Cleaner Air Oregon community coordinator and public health educator will develop a protocol

and guidelines that will allow greater flexibility in working with communities to keep neighbors informed

and involved in the process.

The protocol will include steps for analyzing an impacted community and developing an individualized

engagement plan with most effective notification and communication methods. DEQ will base

procedures on community engagement best practices and comments received during both public notice

periods, and there will be an opportunity for public and stakeholder input on the procedures. Compared

to having a prescriptive process in the regulations, this will allow more flexibility to tailor the community

engagement communication and process to the needs of communities.




552, 651, 661, 702, 767, 700

Comment Category #79: Community Engagement - notification should only be

required in area above RAL

Description: The notification area should be limited to the area where the assessed potential risk

exceeds the applicable source risk action level. There is no reason to specify up to 1.5 km, whichever is

greater. Smaller facilities may only have a few neighboring properties that exceed the applicable RALs.

To gather the demographic information and provide public notice for a full 1.5 km radius is excessive

and unnecessary if the risk is below the applicable RALs.


Item G 001240


Response: Level 1 and 2 risk assessments indicate impacts at distances from the facility. Risk

assessments at Level 3 and 4, can estimate distance-specific areas of risk, however there is directional

variability, especially for short-term acute effects. For these reasons, a circular area centered on the

facility is the best means to conservatively estimate potential areas of risk and public notification.

In respect to distance from the facility, 1.5 km is a convenient marker for the distance at which the

concentrations fall off sharply. Although the area where assessed potential risk exceeds the applicable

risk action level could be smaller than 1.5 kilometers, community notification on a scale smaller than 1.5

kilometers may be ineffective to engage members of the community who may be impacted and

interested.




Comment Category #80: Community Engagement - provide email and phone

complaint line options and oversight process

Description: Commenter supports the inclusion of the requirement for a complaint line. A source should

be required to provide both email and phone complaint line options and should be offered in multiple

languages to ensure that it is accessible to everyone in the impacted community. Additionally, we

recommend an oversight process to ensure that complaints become a part of the Community

Engagement Plan with a process for a source owner or operator to respond to complaints in a timely

manner.

Response: The proposed regulations require that an owner or operator must provide a complaint line in

the form of an email address or telephone number to the source's owner, operator, or its representative

in a permit addendum. The owner or operator must report any complaints they received to DEQ and

what the source did to address the complaints.



community coordinator and public health educator will develop a full set of procedures and guidelines

that will allow greater flexibility in working with communities to keep neighbors informed and involved

in the process. DEQ will base procedures on community engagement best practices and comments

received during both public notice periods, and there will be an opportunity for public and stakeholder

input on the procedures. Compared to having a prescriptive process in the regulations, this will allow

more flexibility to tailor the community engagement process to the needs of communities.



Item G 001241




Comment Category #81: Community Engagement - reconcile areas for

notification and define "community"

Description: Throughout the Community Engagement section, the draft rules use the terms “notification

area,” “community,” and “within 1.5 km” to describe three apparently different geographical

boundaries. DEQ should revise the rules to reconcile these conflicting provisions. Additionally,

“community” is not defined in the rules and therefore, it is not clear what is meant by the requirement

that “public notification efforts must be tailored to ensure that sensitive populations in the community

are reached.” Is “community” intended to be broader than the “notification area”? If so, it is not logical

for the rules to limit the geographic range for consideration of speakers of non-English languages to the

notification area. Notification requirements for other languages should be based upon the population

within the greater “community.” It is essential for the rules to provide clear definitions of these terms so

that the public has an understanding of when they are entitled to notification and what that notification

means.

Response: DEQ added a notification section to the proposed Community Engagement rules in OAR 340-

245-0120 to notify the community in the "notification area." DEQ defined "notification area" and "area

of impact" in the first draft of the rules. Notification area means "the area of impact or the area within a

distance of 1.5 kilometers of a source, whichever is greater." The Cleaner Air Oregon proposed rules

defines the area of impact as "the geographic area where risk is determined to be above the applicable

Risk Action Level, and is determined by AERMOD or other comparable complex modeling approved by

DEQ." In addition to targeted communications within the notification area, DEQ will continue to provide

information on its website and through govdelivery for interested parties.





in the process.

DEQ will base procedures on community engagement best practices and comments received during

both public notice periods, and there will be an opportunity for public and stakeholder input on the

procedures. Compared to having a prescriptive process in the regulations, this will allow more flexibility

to tailor the community engagement process to the needs of communities. Proposed community

engagement rules require DEQ to consider whether translation services are needed for a public meeting.




Item G 001242



Comment Category #82: Community Engagement - require ongoing community

meetings

Description: In California owners and operators of source polluters are expected to hold recurring

monthly community meetings where members of affected areas can receive updates and review

summaries of source emissions. These weekly meetings are mutually beneficial, as community members

are informed about the operations that affect the air quality and, thus, their health. It also begins the

process of building trust between the facility and the community they exist in. Responsive and

continuous dialogue builds a working relationship that allows the concerned parties to come to

solutions outside of legal or DEQ-facilitated meetings, slowly lessening the required attention and focus

that DEQ staff and employees need to give in these community issues. In the Bay Area, it is common for

a representative from the Department of Public Health to appear at community engagement meetings

to answer questions, or simply show their support and involvement in affected areas. By involving the

Department of Public Health, sources may feel more pressure to provide updated and accurate

estimates of emitted pollutants. The presence of public health officials also provides the affected

communities with a level of technical knowledge that may not be present otherwise. It will allow

community members to have a more complete understanding of the affects that the air pollution will

have on their community and on its members.



Cleaner Air Oregon community coordinator and public health educator will develop a full set of

procedures and guidelines that will allow greater flexibility in working with communities to keep

neighbors informed and involved in the process. DEQ will base procedures on community engagement

best practices and comments received during both public notice periods, and there will be an

opportunity for public and stakeholder input on the procedures. Compared to having a prescriptive

process in the regulations, this will allow more flexibility to tailor the community engagement process to

the needs of communities.

An Oregon Health Authority public health educator will be involved in the consideration of a source's

application and draft permit. DEQ also anticipates involving local health authorities. Inclusion of public

health professionals will help all stakeholders have a better understanding of the health effects of toxic

air contaminants on a community.

DEQ agrees that regular community meetings between sources and impacted communities can be

beneficial to build trust, keep people informed, and develop non regulatory solutions. However, Senate

Bill 1541 states that any meetings required in Cleaner Air Oregon shall be held by DEQ. This prevents

DEQ from requiring sources to hold regular meetings with impacted communities on their own, and it

would be beyond DEQ's Cleaner Air Oregon funding to hold regular meetings on behalf of multiple

sources statewide. DEQ anticipates that in addition to identifying best practices for DEQ and OHA,

community engagement procedures and guidelines will describe best practices for sources who may

make voluntary efforts to meet or otherwise communicate with impacted communities.


Item G 001243





Comment Category #83: Community engagement - should be eliminated, the

public doesn't have a real voice

Description: The public meetings and feedback opportunities are a cynical attempt to promote the false

notion that the public has a voice in permitting decisions.

Response: The purpose of the community engagement requirements outlined in the rules is to "notify

the community affected by a source’s toxic air contaminant emissions and provide a mechanism for the

affected community to provide input to DEQ’s work with sources called into the program." For sources

with potential risk above 25 and 1, there will be a minimum of one community engagement meeting if

requested by the community after DEQ has received a complete application for a toxic air contaminant

addendum. DEQ will hold a second meeting to take public comment on the draft permit for the source.

Compared to DEQ's existing permitting process, inclusion of the early application stage meeting provides

communities with more opportunity to understand, discuss and comment on toxic air contaminant

emissions potentially impacting their health.












Comment Category #84: Community engagement - should not be required for

Risk Reduction Plan or TBACT Plan

Description: The Risk Reduction Plan and TBACT Plan should not require community engagement

planning.


Item G 001244


Response: If a source is required to submit a Risk Reduction Plan to reduce risk, the impacted

community should know and be able to provide input on what the source is proposing along with the

timeline for risk reduction. Community engagement is especially important in this situation because the

Risk Reduction Plan is the regulatory mechanism for reducing risk and protection of public health. DEQ

has changed the proposed rules to eliminate the TBACT Plan and just make the TBACT requirement part

of the Risk Reduction Plan, which is the overarching plan to reduce risk.












Comment Category #85: Community engagement - should require CE meetings if

above CE RAL

Description: The DEQ must require community engagement meetings for new, reconstructed and

existing sources if the owner or operator requests Source Risk Limits greater than any of the Community

Engagement Levels and change the word “may” to “shall”).

Response: DEQ has used "may" instead of "shall" in the requirement to have a community engagement

public meeting because in some cases, a public meeting may not be warranted. In other cases, multiple

public meetings may be needed so DEQ has structured the rules to provide flexibility. As stated by some

of the Rules Advisory Committee members, effective community engagement can require more than a

single meeting. DEQ agrees and foresees the need to hold both large and small meetings. Some

community groups may ask for several informal meetings in smaller venues. DEQ has added medium

and low community engagement meeting fees for smaller meetings. Large meeting fees would cover

large formal meetings that require mailings to all addresses within the area of impact and a venue that

accommodates over 100 people.

DEQ replaced detailed requirements for community engagement in the draft rules with rules that

outline how DEQ will conduct community engagement. A future Cleaner Air Oregon community

coordinator will develop a full set of procedures and guidelines that will allow greater flexibility in

working with communities to keep neighbors informed and involved in the process. These procedures

will be based on community engagement best practices and the comments received during the first


Item G 001245


public notice period, and there will be an opportunity for public and stakeholder input on the

procedures. Compared to having a prescriptive process in the regulations, this will allow greater

flexibility to tailor the community engagement process to the needs of communities.




Comment Category #86: Community Engagement - supports proposed changes

to community engagement in October 2017 draft of rules

Description: Commenter appreciates DEQ amending the draft CAO rules to require a longer time period

for notice of community engagement meetings; it is essential to ensure that affected communities have

adequate time and information to meaningfully engage in the process. Commenter strongly supports

DEQ’s amendment throughout the draft CAO rules to require DEQ or OHA attendance and participation

at community engagement meetings. This will help ensure that community meetings are run according

the source’s Community Engagement Plan and the CAO rules.









SB 1541 requires that DEQ hold all public meetings required in the Cleaner Air Oregon permitting

process, rather than the source. This means that DEQ would plan, announce and conduct these public

meetings, providing adequate time and information for the public to meaningfully engage in the

process. The bill also required that a representative of the source attend any public meeting DEQ holds.




802, 695


Item G 001246


Comment Category #87: Comparison to other states - program should be made

less stringent

Description: Rules go far beyond what any other state has imposed. The proposed risk levels are more

stringent than those in effect in South Coast Air Quality Management District. DEQ staff has incorrectly

argued that these levels are consistent with what the state of Washington uses. The state of

Washington's risk levels are not applied to existing sources that are not undergoing modification. If

there is a modification the risk levels are only applied to the emissions from the new unit, not the entire

plant site. As currently proposed, the DEQ rules would create the most restrictive air quality program in

the country.

Response: In the current version of the proposed rules, DEQ has incorporated the risk benchmarks the

Oregon Legislature set in SB 1541, at 50 in a million cancer risk and a noncancer hazard index of 5 for an

existing source. South Coast Air Quality Management District has allowable risk levels for both new

sources and existing sources that are very similar. The new source level is 10 in 1 million. The existing

source level is 25 in 1 million and a hazard index of 3. Washington's allowable risk level for new pieces of

equipment and for new or modified sources is 10 in 1 million. DEQ is proposing this same level for new

sources. Louisville, Kentucky has a new source allowable risk level of 3.8 in 1 million and an existing

source allowable risk level of 7.5 in 1 million, which is more stringent that what DEQ is proposing. The

Bay Area Air Quality Management District in San Francisco, California currently has an allowable risk

level of 25 in 1 million and a hazard index of 2.5 for existing sources. In 2020, those levels change to 10

in 1 million and hazard index of 1.0, again much more stringent that DEQ's proposal.

DEQ believes that the proposed rules represent a balanced approach that would implement the risk

levels set in SB 1541 and provide adequate regulatory flexibility for facilities working towards

compliance.




333, 342, 352, 354, 376, 377, 378, 432, 450, 495, 505, 550, 594, 615, 616, 644, 655, 658, 747, 742, 733,

732, 773, 734, 772, 937, 745, 749, 764, 674, 672, 671, 746, 673

Comment Category #88: Comparison to other states - program should be made

more stringent

Description: Consider the Louisville, Kentucky air toxics program as a model.

Response: DEQ and OHA reviewed the Louisville Strategic Toxic Air Reduction program when developing

Cleaner Air Oregon. Louisville has a new source allowable risk level of 3.8 in 1 million and an existing

source allowable risk level of 7.5 in 1 million.


Item G 001247


Senate Bill 1541, adopted into law by the 2018 Legislature, established public health benchmarks

(cancer risk and non-cancer hazard index) to be used by DEQ to determine if emissions reductions would

be required of toxic air contaminant sources. DEQ revised the proposed rules to conform to these

statutory requirements and include the benchmarks that were in SB 1541 in the proposed rules. For new

or reconstructed sources, the proposed TLAER Level is set at 10 in one million and a Hazard Index of 1.

For existing sources, the TBACT Level would be at 50 in 1 million and a Hazard Index of 5.




503, 510, 687

Comment Category #89: Compliance - Citizen Enforcement Mechanism

Description: DEQ should provide a citizen enforcement mechanism that will allow communities to

ensure compliance if DEQ fails to do so.

Response: DEQ lacks statutory authority to include a citizen enforcement provision in CAO rules and

Senate Bill 1541 did not include any citizen enforcement provisions. For Title V facilities, citizens have

the ability under section 304 of the federal Clean Air Act to initiate enforcement for violation of any

federally required emission standard or limitation. This authority is not available for Cleaner Air Oregon

requirements and a legislative change would be required to provide it.




797

Comment Category #90: Compliance - create a low-interest loan program to aid

in compliance

Description: Create a low-interest loan program for small or distressed cost-burdened companies to aid

their compliance if necessary and to prevent undue delay in obtaining relief from pollution. If the

Cleaner Air Oregon program is good public policy, perhaps the public should pay for it in the form of

Pollution Control Tax credits.

Response: Creation of a low-interest loan program would require legislative action and allocation of

additional funding. Oregon did have a Pollution Control Tax Credit program that sunset in 2008.



Item G 001248




Comment Category #91: Compliance - create technical assistance center for

business

Description: Create industry compliance center and web page that gives good, quick compliance

assistance to the permit applicant and to the community.

Response: In the staffing model for the proposed CAO program, there is a full-time position that will

provide technical assistance. During the first part of implementation of Cleaner Air Oregon, DEQ and

OHA staff (i.e., permit writers, toxicologists, modelers, risk assessors) will help sources with their

applications for Toxic Air Contaminant Permit Addendum. DEQ and OHA developed recommended

procedures for conducting toxic air contaminant health risk assessments that DEQ made available for

public review during the comment period. DEQ and OHA will update recommended procedures based

on insights learned from the initial implementation of Cleaner Air Oregon and post them on the website.




Comment Category #92: Compliance - do not allow self-monitoring

Description: Allowing sources to self-monitor their own pollutant discharges does not seem to be

working out. Numerous complaints have been filed with DEQ regarding nuisance odors and toxic fumes

without any action taken. DEQ must increase independent monitoring and independently verify

polluting industries effluent and gas release claims. All associated cost increases for independent

monitoring should be the burden of the polluting industries, not taken from the Oregon General Fund,

DEQ’s budget, or from individual taxpayers. The burden of complaining, of investigating, and of

degraded health and well-being, has for far too long been placed only on the community, and individuals

within the community, rather than on the polluting industries that have long profited off of lax state

oversight and designed inaction.

State Agencies should conduct surprise visits to industrial polluters, especially those that have received

or are receiving numerous community complaints on nuisance odors, or that are in close proximity to

vulnerable populations and K-12 schools, or that use carcinogenic and mutagenic toxins.

Response: Regulatory agencies, including DEQ, do not have the staff or financial resources to monitor

permitted sources on a daily basis. As a result, permitting programs must rely on information recorded

and reported by facilities. However, DEQ reviews records and performs regular inspections of permitted

facilities, both announced and surprise, to check whether facilities keep records properly and to


Item G 001249


determine whether those records show the facility is in compliance with permit conditions. DEQ can and

does take enforcement action when sources perform monitoring and reporting incorrectly. If a facility

knowingly creates false records, DEQ can file criminal charges against the company and/or the

individuals involved.

DEQ is also involved when emissions testing occurs. Although the sources pay for emissions testing and

specialized testing companies perform the actual testing, DEQ must approve the test plan and methods.

DEQ staff periodically attend during testing to ensure that companies perform testing properly and

obtain results correctly. Cleaner Air Oregon permit fees would pay for DEQ staff time spent on these

activities.

While some toxic air contaminants are odorous, and Cleaner Air Oregon requirements may reduce some

emissions of odorous pollutants, DEQ did not intend for the program to be a solution to nuisance odor

problems. DEQ operates a separate nuisance odor response strategy based on level of complaints and

severity of odor effects.




Comment Category #93: Compliance - enforcement actions paid for by industry

Description: Enforcement actions paid for by industry should be added to Cleaner Air Oregon.

Response: The fees for the Cleaner Air Oregon authorized by Senate Bill 1541 include funding for

enforcement actions. Civil penalties paid by industry for enforcement cases go to the State General Fund

and are not directed back to DEQ.




Comment Category #94: Compliance - make fines commensurate with size of

corporation

Description: Make fines for violations commensurate with the size of the corporation.

Response: OAR 340 division 12 prescribes DEQ’s process for penalty calculations for all DEQ programs.

Division 12 takes into account the size and sophistication of a facility by assigning potential violators to


Item G 001250


different penalty matrix. For air quality sources, the largest, most environmentally-sophisticated entities

that operate under major source air quality permits (Title V and Air Contaminant Discharge Permits that

incorporate a Prevention of Significant Deterioration or New Source Review determination) are on the

highest ($12,000) penalty matrix. The smallest, less sophisticated facilities (such as gas station and dry

cleaners) are on a much lower ($3,000) penalty matrix. The matrix assigns the starting base penalty for a

given violation and then adds or subtracts based on other factors to determine a final penalty amount.




Comment Category #95: Compliance - require annual, frequent or continuous

source testing or ambient air monitoring

Description: Industry should test their facilities annually. Air monitoring should be mandatory and

conducted without prior notice. By requiring monitoring and conducting it on a surprise basis, DEQ can

check that emissions inventories match actual emissions to keep businesses honest and build trust with

the public.

Response: When DEQ drafts a CAO Toxic Air Contaminant Permit Addendum, it will include permit limits

and spell out how the facility will show compliance with those limits. The public will have a chance to

know about and comment on the limits, and compliance methods as part of the CAO permitting process.

DEQ will review the records facilities submit as part of their annual or semi-annual reports to DEQ, to

determine whether the facility is in compliance. DEQ will perform announced and unannounced

inspections of sources that include reviewing recordkeeping requirements.

DEQ has authority to require a facility to source test in order to verify emissions in cases where good

data is not available. When a Risk Reduction Plan requires installation of pollution control devices,

sources will be required to test those pollution control devices to verify that the risk is reduced as

predicted. DEQ feels that a requirement to source test all facilities annually is unduly burdensome and

unnecessary, when recordkeeping and reporting is often sufficient to determine compliance status.

Many sources have multiple stacks that emit multiple toxic air contaminants, so multiple source test

methods could be required for each stack, making stack testing very expensive.

The proposed CAO rules would allow facilities to do ambient air monitoring, but do not require them to

do so. Ambient air monitoring is expensive and resource intensive, and if high emissions are measured it

may not be possible to determine their source. Modeling is required to determine where to locate

monitors. Siting air monitors can take months, so air monitoring conducted on a surprise basis is not

possible.



Item G 001251




Comment Category #96: Compliance - too costly and difficult to determine

compliance on a rolling 12-month basis and a monthly basis

Description: It is impractical and too costly for businesses to determine chronic risk monthly on a rolling

12-month basis and acute risk on a monthly or more frequent basis. We request that DEQ revise the

rules to require a compliance demonstration at least monthly unless a less stringent schedule is deemed

adequate by DEQ based either on the specific facts underlying the Source Risk Limit or based on prior

compliance demonstrations showing that future compliance is highly likely. Risk assessments are

complex calculations and few, if any, companies would be able to carry this in-house. Provided that

facilities have attempted to obtain an air toxics permit attachment using pre-existing potential-to-emit,

facilities should not be required to re-do risk assessments at this frequency.

Response: Facilities that are above the Source Permit Level will have CAO permit limits and methods for

demonstrating compliance with those limits added to their permits. For cancer or chronic noncancer

risk, compliance would be calculated every month, on a 12-month rolling average basis, and reported

annually or semiannually.

To make reporting for acute risk less burdensome, DEQ proposes that compliance with acute risk could

be demonstrated on a monthly basis rather than a 24-hour period. CAO compliance demonstration

methods will vary depending on the permit but will not require re-doing a complex risk assessment.

Many facilities already monitor and report production or calculate emissions on a 12-month rolling basis

to meet the terms of their current permits, and DEQ feels that it will be possible for facilities to

demonstrate compliance with CAO limits without undue burden for businesses.




Comment Category #97: Concerns about emissions from specific facilities

Description: Some commenters expressed concerns about the handling of existing air permits for

specific facilities.

Response: Cleaner Air Oregon would not affect the requirements facilities have under their current air

permits. Some facilities may choose to be permitted at lower production levels because of Cleaner Air


Item G 001252


Oregon and these changes would be incorporated into existing permits during a permit renewal or

modification.




280, 296, 298, 299, 303, 304, 308, 319, 321, 323, 362, 364, 370, 391, 394, 403, 408, 414, 420, 423, 430,

444, 530, 538, 540, 546, 549, 554, 557, 562, 566, 568, 577, 578, 604, 608, 609, 617

Comment Category #98: Conditional Risk Level - Do not allow Conditional Risk

Levels (higher risk levels for facilities that have TBACT)

Description: Commenter disagrees with the Conditional Risk Level concept, which would allow facilities

with TBACT installed on all units to pose a higher level of acceptable risk.

Response: The October 2017 draft of the proposed CAO rules included a term called the Conditional Risk

Level, which allowed facilities that had TBACT installed on all significant emission units to pose a higher

level of risk than would be acceptable for other facilities, until a more effective TBACT became available.

The term Conditional Risk Level is no longer used in the rules, but the Legislature included this concept

in SB 1541 and DEQ retained it in the rules.




Comment Category #99: Conditional Risk Level - do not allow for increases

above original Conditional Risk Level, including new or modified TEUs

Description: The draft rules contemplate an owner or operator of a source with a Conditional Risk Level

requesting a change to the Conditional Risk Level to increase the source’s risk. One of the fundamental

purposes of the Cleaner Air Oregon program is to reduce exposure to industrial and commercial air

toxics; it is contrary to this basic purpose to develop regulations that would allow a source that already

exceeds the applicable Source Risk Action Level to make changes that would increase risk even further.

We propose that DEQ amend the rules to delete the provision and to add a provision that makes clear

that under no circumstances will DEQ approve a request to increase a Conditional Risk Level. OAR 340-

245-0300(12)(a)(B) should also be removed from the rules allowing a similar increase in risk above

Source Risk Action Levels or Conditional Risk Levels.

For sources that have been issued an Air Toxics Permit Attachment, it is unclear whether the draft rules

would allow approval of a new or modified TEU that would bring the source’s total risk above the Source


Item G 001253


Risk Action Level. We strongly oppose DEQ allowing any changes to an Air Toxics Permit Attachment to

add or modify a TEU that would increase risk above the Source Risk Action Level, including any increase

in risk at a source that has a Risk Reduction Plan or Conditional Risk Level.






DEQ agrees that the ultimate goal of Cleaner Air Oregon is to reduce exposure to industrial and

commercial toxic air contaminants but Senate Bill 1541 limits DEQ's authority. SB 1541 allows sources to

have permit risk limits up to 200 in a million and a hazard index of 10 as long as the source has TBACT

installed on all significant emissions units. DEQ cannot require sources to undertake additional measure

to limit or reduce toxic air contaminant emissions beyond TBACT unless risk is above 200 in a million and

a hazard index of 10. In that case, sources must go beyond TBACT, potentially curtailing production, to

stay below 200/10.

If a source requests an increase in permitted source risk limits that are already above the TBACT level of

50 in 1 million and hazard index of 5, DEQ must approve the request as long as all the applicable

procedures have been met, including the requirement to have TBACT on all significant emissions units.

SB 1541 limits DEQ's authority to deny requested increases in risk. The source would not be able to

request an increase in permitted risk limits above 200/10.

There is a sunset provision for the Risk Action Levels, or benchmarks, set in SB 1541. On January 1, 2029,

the TBACT Risk Action Level can be reduced to no less than 25 in 1 million and a hazard index to be set

by the Environmental Quality Commission. The sunset provision will help DEQ meet its long-term goal to

achieve a 50% reduction in the number of existing facilities posing either an excess cancer risk of more

than 25 in a million or a Hazard Index of more than 1 by the year 2034.




Comment Category #100: Conditional Risk Level - rename to High Risk or similar

and eliminate value-neutral, vague terminology

Description: Commenter recommends a clearer name, such as High Risk Levels for the Conditional Risk

Level which would help the public recognize the higher risk being allowed, past risk action levels

deemed protective of public health for the DEQ Director consultation process. DEQ should rename what

is currently called “DEQ Director Consultation Risk Action Level” as “High Priority Source Risk Action

Level” or “Conditional High Risk Permit,” which would more clearly communicate to the public that such

sources are emitting at an unsafe level, which is why they require special approval from the Director.


Item G 001254


Rather than use value-neutral, vague terminology, the rules should use clear and accurate language that

makes sense to all members of the public. By incorporating more descriptive terminology, the public can

better understand the risk certain sources pose. With the public having a greater understanding of

sources in the community, the sources will be more accountable to the public and the CAO program will

be more transparent.






DEQ has updated the names and structure of the Risk Action Levels in the second draft of the rules. The

names of each RAL are more descriptive of what is actually required at that level and what actions are

taking place if potential risk exceeds that RAL level.




Comment Category #101: Conditional Risk Level - require emission control

updates

Description: Change language to clearly require a source with emissions above the Source Risk Action

Level to update the source’s emissions control systems, remove the word “may” and replace with “will”.

Suggested language: The purpose of a Conditional Risk Level is to conditionally approve construction or

operation of a source that is unable to comply with the applicable Source Risk Action Level. Until a

source achieves compliance with the Source Risk Action Level, this rule requires periodic TBACT reviews

to determine if new emission reduction measures become available, and, if so, then DEQ will require the

owner or operator to update the source’s emissions control systems.






DEQ proposes to require all sources do periodic TBACT reviews. This includes sources who have

presumptive TBACT because there is a major source NESHAP that applies to their facility and sources

where a case-by-case TBACT determination was made. Because of SB 1541, DEQ cannot require sources

with presumptive TBACT to undertake additional measure to limit or reduce toxic air contaminant

emissions beyond what the NESHAP requires.


Item G 001255


If a source that has a case-by-case TBACT determination finds new or improved emissions control

measures that may apply to their facility during the periodic TBACT reviews, the source may or may not

be required to install that new or improved emission control measure. If the source chooses not to

install the new or improved emissions control measure, the owner or operator must provide justification

for not installing it. DEQ will review the control measure and any justification provided by the owner or

operator for not installing the control measure, and will make a preliminary determination with regard

to whether or not the source must install the control measure.

DEQ will use the following criteria for a preliminary determination:

• the remaining service life of any existing emission control system that would be replaced;

• the relative effectiveness of the new or improved control measure to reduce the source risk as

compared to the risk using the existing control measure;

• the cost of installation and operation of the new or improved control measure, including the

cost of removing any existing control measure; and

• any other factors that DEQ finds relevant.

If DEQ’s final determination is that the control measure must be installed, DEQ will work with the owner

or operator to determine the date by which the control measure must be installed within a reasonable

timeframe. DEQ will determine a new source risk limit based on information on the amount of toxic air

contaminants removed by the control measure and issue an amended Toxic Air Contaminant Permit

Addendum. The rule language that says DEQ "may" require the owner or operator to update the

source's emissions control system is for the situation when DEQ’s final determination is that the source

is not required to install the control measure.




Comment Category #102: Conditional Risk Level - require source to include

Conditional Risk Level in public notice documents

Description: The public notification requirements for community engagement meetings for a source

seeking a Conditional Risk Level should be at least as stringent as the notification requirements for a Risk

Reduction or TBACT Plan. Specifically, the owner or operator of the source should be required to include

with the public notice a copy of the Conditional Risk Level proposal and the application.





Item G 001256




Even though DEQ has eliminated the Conditional Risk Level name but retained the concept, the public

notification requirements for community engagement meetings for any source with potential risk above

the Community Engagement Level will be the same. DEQ plans to tailor the community engagement

process to the needs of communities. DEQ will post all materials submitted by the source on DEQ's

website.




Comment Category #103: Conditional Risk Level - should not use ABEL, INDIPAY,

and MUNIPAY models to assess ability to pay

Description: The proposed rule would subject businesses that are unable to pay for controls to actions

normally used only against businesses that have committed an environmental crime. The EPA

enforcement programs ABEL, INDIPAY, and MUNIPAY are inappropriate in the context of this rule, as is

the stated intention that DEQ will be the sole arbiter: of ability to pay and will consider a businesses

ability to take on debt and sustain cash flow with a 70% probability to be acceptable. This would indicate

that it is acceptable to have a 30% probability of going out of business. Other jurisdictions, such as

BAAQMD have proposed much more reasonable provisions that do not attempt to bankrupt businesses

that cannot pay, and do not criminalize businesses that are compliant with all existing regulations. These

provisions are unacceptable and should be changed.

Response: By providing a provision in the rules that allows businesses to postpone emissions reductions

if they can show an inability to pay, DEQ is balancing the need for jobs and economic activity with the

need to provide cleaner air for Oregonians to breathe. ABEL, INDIPAY and MUNIPAY are financial models

developed by EPA to analyze claims by facilities (whether businesses, individuals, or

municipalities/regional utilities) that they are unable to afford "compliance costs, cleanup costs or civil

penalties." DEQ currently uses these models in enforcement cases if an owner or operator is unable to

pay the full penalty amount. DEQ believes that it is also appropriate to use these models to assess

whether a facility has the ability to pay for Cleaner Air Oregon compliance costs. There is no intent to

stigmatize any business through use of relevant financial models. Instead application of these tools

would provide justification for DEQ to approve that sources remain out of compliance with Cleaner Air

Regulations for a five year period.

DEQ does not investigate or prosecute environmental crimes. Environmental crimes are investigated by

law enforcement or EPA criminal investigators and then any potential crime would be prosecuted by a

district attorney in state court, or by the US Department of Justice in federal court. Any criminal


Item G 001257


sanctions would be imposed by the court; thus, DEQ’s ability-to-pay process, using ABEL, INDIPAY and

MUNIPAY would never be used.




Comment Category #104: Conditional Risk Level - Should reapply every 5 years

Description: Facilities that are granted a Conditional Risk Level are granted an ongoing permit to pollute

at levels considered hazardous by the agency. Facilities granted a permit under this program element

should be required to reapply for a permit, including completion of a comprehensive health risk

assessment, under these rules every five years unless a risk reduction plan is submitted and approved by

the agency that brings the risk bellow the applicable source RAL.






DEQ has changed its thinking regarding permitting of toxic air contaminants based on public comment

received. DEQ proposes to issue Toxic Air Contaminant Permit Addendums that amend operating

permits. DEQ will incorporate the addendums into the operating permit at renewal or modification for

an existing source or issuance for a new source. Because of this change, permit conditions for toxic air

contaminants will expire along with the rest of the operating permit and will need to be renewed. If

anything has changed at the facility that would increase risk, the owner or operator must apply for a

permit modification and redo the risk assessment.




Comment Category #105: Construction Approval Requirements - approve

construction under existing program until CAO permit is issued

Description: The construction approval requirements under Division 245 should not apply until after an

Air Toxics Permit Attachment is issued, not during the potentially multi-year period between when the

application is submitted and DEQ issues the Permit Attachment, especially in the case of de minimis

TEUs. Where the Department has not acted on a submitted application, the source should not be locked


Item G 001258


into the proposed Source Risk Limit in that application until the Air Permit Attachment is actually issued.

The source should be able to amend the application and proceed. However, this should be a notice and

go process and the sources should not have to wait 10 days before proceeding. If a facility modification

is necessary and no change to an existing Permit Attachment is necessary, then DEQ should defer any

construction permitting to the Division 210 requirements.

Proposed rules should be revised to make clearer that construction is allowed whenever total

cumulative risk from all air toxics emitted by a new or modified TEU is no more than the total risk from

the TEU being replaced or modified. There should be a mechanism to evaluate de minimis emission

levels to determine whether a full risk assessment is needed. The rules should clarify what happens if a

TEU makes a small change that affects the potential risk from a facility. In addition, the proposed rules

are confusing as to the requirement for a Permit Addendum application regarding construction

approvals.

Response: DEQ has changed the proposed rules to require construction approval under Cleaner Air

Oregon only after DEQ issues a Toxic Air Contaminant Permit Addendum or an operating permit with

Cleaner Air Oregon permit conditions. If an owner or operator submits applications for construction

approval during the Cleaner Air Oregon permitting process using the existing applicable rules for

construction approval, they will be required to update the Cleaner Air Oregon application so the issued

Toxic Air Contaminant Permit Addendum contains all Toxic Emissions Units, both existing and approved

but not yet constructed.

If an owner or operator constructs or modifies a TEU during the Cleaner Air Oregon permitting process

and does not install TBACT on that TEU, they may be required to install TBACT on that unit after DEQ

issues the Toxic Air Contaminant Permit Addendum. Under the existing permitting program, there is no

"notice and go process" and the proposed Cleaner Air Oregon rules do not add that provision.

Owners or operators will be required to comply with the existing permitting program for construction

approvals before DEQ issues a Toxic Air Contaminant Permit Addendum or an operating permit with

Cleaner Air Oregon conditions. Owners and operators will be required to comply with the proposed

Cleaner Air Oregon construction approval rules after DEQ issues the Toxic Air Contaminant Permit

Addendum.

Like division 210, the proposed Cleaner Air Oregon rules provide multiple approval methods that apply

to different types of changes. Under division 210, simple changes have default approvals, while more

complex changes require the source to obtain a permit to construct. Sources in Oregon have worked

under the division 210 rules for many years and DEQ anticipates that it will not be difficult for sources to

adapt to the Cleaner Air Oregon requirements for new or modified TEUs.

DEQ has changed the proposed rules for approval of de minimis TEUs. An owner or operator may use a

Level 1, 2, 3, or 4 Risk Assessment procedure to demonstrate that the TEU is de minimis. If an owner or

operator can use a Level 1 Risk Assessment, the review is straightforward and can be done in 10 days or

less. Therefore, DEQ agrees that issuance of a permit addendum is not necessary, as long as the

operating permit allows operation of that TEU. If a Level 2, 3, or 4 Risk Assessment is required, the


Item G 001259


review is more onerous, especially for a Level 4 Risk Assessment. In those cases, the owner or operator

must wait for DEQ approval before beginning construction.

DEQ already evaluates like-for-like replacements or modifications that do not increase emissions under

existing rules in division 210. Some like-for-like replacements can trigger New Source Review so these

replacements are not considered "insignificant" and must be evaluated. The proposed Cleaner Air

Oregon rules look at the new or modified significant TEU by itself, not compared to potential source risk,

just as DEQ would review under its existing permitting program. DEQ has included a provision in the

proposed rules that allows owner or operators to "add the risk from the new or modified TEU to prior

results from the latest Source Risk Assessment rather than updating the entire Source Risk Assessment

for the whole source." If the new or modified TEU increases source risk, a permit modification would be

required, as is already included in the proposed rules.

DEQ has simplified and clarified when an owner or operator is required to submit an updated

application or modification.




598, 615, 623, 626, 631, 673

Comment Category #106: Definition - broad definition of significant TEU is

troubling and unnecessary

Description: The definitions of de minimis TEU and significant TEU force an unworkable binary

evaluation: either a TEU is de minimis or it is “significant.” Such a broad definition of “significant” is

troubling and unnecessary. The label “significant” creates unwarranted stigma for emission units that

are barely above de minimis. Not all emissions are “significant” and yet, this definition framework

creates just such a conclusion as a practical matter.

Response: DEQ has structured the proposed rules such that owners or operators of sources with

significant TEUs are required to meet TBACT for those TEUs and TEUs that are not significant (included in

the Aggregate Significant TEU Level) do not need to meet TBACT.

DEQ proposes higher levels and a new way of setting de minimis levels for TEUs. DEQ is replacing the

Significant TEU Level with an "Aggregate Significant TEU Level" for both new/reconstructed sources and

existing sources. Instead of setting a per-TEU de minimis risk level, the Aggregate Significant TEU level is

on a per-facility basis. The facility owner or operator can designate one or more TEUs to be de minimis,

as long as their total risk fits below the Aggregate Significant TEU level. The Aggregate Significant TEU

level for new sources would be 0.5 in a million and an HI of 0.1. For existing sources, it would be 2.5 in a

million and HI of 0.5.


Item G 001260


If a facility is above the TLAER or TBACT risk level, then any TEUs that are included in the Aggregate

Significant TEU Level would be considered de minimis and would not have to meet TLAER/TBACT. All

other TEUs must meet TLAER or TBACT if required to do so. The Aggregate Significant TEU Level is similar

to the Aggregate Insignificant Activities concept in DEQ's Title V program.




Comment Category #107: Definitions - add definition of minority

Description: DEQ should define the term 'minority' in the draft rules to ensure consideration and

protection of communities of color, immigrant populations and low-income communities.

Response: DEQ and OHA agree that the rules should be written to ensure protection of communities of

color, immigrant populations and low-income communities. In the draft rules released in the first round

of public comment, the term minority was used to describe how DEQ will consider demographic factors

to prioritize facilities. The specific details of the overall approach to prioritization have since been

removed from the rules and are now described in a Facility Prioritization Protocol. This allows the

agencies some flexibility in refining the prioritization approach over time as needed, while still offering

transparency around the intended process.

The prioritization protocol proposes to prioritize facilities based on facility risk as well as the percent of

low-income, minority residents, and residents under 5 years old. DEQ and OHA will use the EJScreen

definitions of these terms: https://www.epa.gov/ejscreen/overview-demographic-indicators-ejscreen

and has removed the definitions of "percentile low-income" and "percentile minority" from the

proposed rules. In the context of the ranking formula, these definitions intend to ensure that groups

that historically have been disproportionately impacted by pollution are prioritized in the

implementation of this program.




Comment Category #108: Definitions - add definition of "official neighborhood

association," "community group," and "sensitive populations"

Description: There are several terms included throughout the community engagement plan regulations

and, more broadly, throughout the CAO rules that require definition. Specifically the rules should define

what qualifies a neighborhood organization as “official.” A concern here is the recognition that


Item G 001261


neighborhood associations do not always represent the demographics of their respective neighborhood.

Similarly, the rules should define “community group” and “sensitive populations” and set out the

metrics that set the two apart.

Response: Of the terms listed in the comment, the term "sensitive populations" is the only term that

remains in the rules and was defined in the first draft of the rules. The proposed definition of "sensitive

populations" is "people with biological traits that may magnify the harmful effects of toxic air

contaminant exposures that include individuals undergoing rapid rates of physiological change, such as

children, pregnant women and their fetuses, and individuals with impaired physiological conditions,

such as elderly persons or persons with existing diseases such as heart disease or asthma. Other

sensitive individuals include those with lower levels of protective biological mechanisms due to genetic

factors and those with increased exposure rates." "Official neighborhood association" and "community

group" are no longer used in the rules and therefore, do not require definition.












Comment Category #109: Definitions - contains substantive requirements

Description: This definition is inappropriate because it contains a substantive requirement in the

definition. DEQ’s “right” to hold a public meeting should not be based in a definition.

Response: DEQ has removed the substantive requirement from the definition of the Community

Engagement Level.




Comment Category #110: Definitions - define "economic harm"


Item G 001262


Description: The Director’s review protocol must be clearly set out so that the process of approval is

consistent. Most importantly, a definition of “economic harm” and an explanation for when that

economic harm outweighs the resulting negative health impacts will provide all parties, Director, facility,

and affected community members. Consultation must be a strict process reserved for exceptional

circumstances, not an open loophole that any facility will try to apply for.

Response: The current proposed Cleaner Air Oregon rules no longer contain the provision for Director

Consultation referred to in this comment. The remaining use of the term "economic harm" is in the rules

for Postponement of Risk Reduction in 340-245-0150(6)(b) where it is a consideration that can influence

whether DEQ will grant a postponement and how it could be structured.

Sources are required to use the U.S. Environmental Protection Agency's ABEL, INDIPAY or MUNIPAY

computer models to evaluate financial condition or ability to pay the full cost of meeting TBACT. EPA

typically employs the 70% probability level for determining ability to pay. DEQ is proposing the same

level of being able to absorb the cost of installing TBACT, or other physical, operational or process

changes, that could be made to reduce risk. Therefore, a definition of economic harm is not required.




Comment Category #111: Definitions - define "pretreated digester gas"

Description: The latest proposal requires inclusion of toxic emission calculations in the risk assessment

for “pretreated digester gas”, but that term is undefined and we are unaware of its meaning; how is that

defined by the department?

Response: The latest proposal requires sources to estimate risk from the combustion of natural gas,

propane, liquefied petroleum gas, pretreated landfill gas and pretreated digester gas but does not

require sources to reduce risk from these emissions.

Anaerobic digestion is the natural process in which microorganisms break down organic materials. In

this instance, “organic” means coming from or made of plants or animals. Anaerobic digestion happens

in closed spaces where there is no air (or oxygen). The initials “AD” may refer to the process of

anaerobic digestion or the built system where anaerobic digestion takes place, also known as a digester.

Digester gas, or biogas, is generated during anaerobic digestion when microorganisms break down (eat)

organic materials in the absence of air (or oxygen). Digester gas is mostly methane (CH4) and carbon

dioxide (CO2), with very small amounts of water vapor and other gases. The carbon dioxide and other

gases can be removed, leaving only the methane. Methane is the primary component of natural gas.

Digester gas is often cleaned to remove carbon dioxide, water vapor and other trace contaminants.

Removing these compounds from digester gas increases the energy value of the digester gas. Low


Item G 001263


quality digester gas is typically used in tougher, less efficient engines, such as internal combustion

engines. Higher quality digester gas cleaned of trace contaminants can be used in more efficient, but

also more sensitive engines. Digester gas treated to meet pipeline quality standards can be distributed

through the natural gas pipeline and used in homes and businesses. Digester gas can also be cleaned

and upgraded to produce compressed natural gas (CNG) or liquefied natural gas (LNG). CNG and LNG

can be used to fuel cars and trucks.

DEQ will add "biogas" to clarify that digester gas is the same as biogas. DEQ also added a provision that

any exemption of pretreated landfill gas and pretreated digester gas (or biogas) must be approved by

DEQ because of issues with contaminants in these gases and the extent to which they are pretreated.




Comment Category #112: Definitions - DEQ notice date should be when notice is

received, not sent

Description: The definition of “DEQ Notice Date” states that the notice date is the date that DEQ sends a

notice to an owner or operator. The notice date should be the date that the facility receives the notice.

Otherwise, a source could find that it has lost a substantial portion of its allotted time simply because

delivery of the notice was delayed.

Response: DEQ would only know when the notice is sent to the owner or operator, not when it is

received. DEQ would not know the date when submittals are required and therefore, wouldn't know if

the owner or operator submitted the required information on time.




Comment Category #113: Definitions - include definitions of Conditional Risk

Level (or new name) and Risk Reduction Plan

Description: We are concerned that DEQ has removed “Conditional Risk Level” from the definitions

section of the draft rules. This is a major component of the CAO program and should be clearly defined

in the rules. Additionally, as stated in our earlier comments during the Advisory Committee process and

above, we request that DEQ amend this term to accurately convey the message to the public that a


Item G 001264


facility is exceeding a Source Risk Action level. For example, we suggest “Conditional Risk Level” be

amended to “High Priority Risk Level.” Similarly, the definitions section should include a definition for

“Risk Reduction Plan”––another major component of the program that must be clearly defined.






There is a rule that explains what a Risk Reduction Plan is, when it is required, how it must be

implemented, and what reporting is required. Therefore, a definition of a Risk Reduction Plan is not

necessary.




Comment Category #114: Definitions - need to define capacity to emit

Description: The rules define a de minimis source in regards to capacity to emit. However, nowhere in

Division 200 or 245 does DEQ define the term “capacity to emit.” We suggest that the Department add

such a definition to the proposed rule and allow for public comment upon it.

Response: Capacity is defined in division 200: "Capacity" means the maximum regulated pollutant

emissions from a stationary source under its physical and operational design. DEQ will change "capacity

to emit" to "capacity."




Comment Category #115: Definitions - "owner or operator" definition is

nebulous

Description: The definition of “owner or operator” includes a concept of “legal or rightful title.” It is

unclear what is included in “rightful title”. The concept should be deleted or defined with detail. The

seemingly “simple” definition potentially expands the “ownership” concept far wider than existing air

quality regulations.


Item G 001265


Response: DEQ will use the Clean Air Act Section 112(a) definition of "owner or operator" which means

any person who owns, leases, operates, controls, or supervises a stationary source. Section 112

addresses the control of Hazardous Air Pollutant emissions and includes provisions for the promulgation

of NESHAP, or maximum achievable control technology standards, as well as several related programs to

enhance and support the NESHAP program.




Comment Category #116: Definitions - "proper" combustion of natural gas is not

defined

Description: Risk from toxic air contaminants emitted solely from the proper combustion of natural gas

may be excluded from the total risk for the purpose of determining compliance with Risk Action Levels

and may be omitted from Risk Reduction Plan requirements. The term “proper” is not defined.

Response: The intent of the proposed rule language is to ensure that combustion of natural gas,

propane, liquefied petroleum gas, pretreated landfill gas and pretreated digester gas or biogas be as

efficient as possible, thus minimizing emissions. Some EPA rules use the term "good combustion" or

"good air pollution control practice" or "good combustion practices" but do not define these terms. DEQ

will change the proposed term to "good air pollution control practice" since that is the intent of the rule.




Comment Category #117: Definitions - Revise "air toxics" to be consistent with

Division 246 rules

Description: Proposed OAR 340-245-0005(1) clearly sets the goal of the CAO program as protecting

public health. However, the definition of "air toxics" in proposed OAR 340-245-0020(5) defines the term

in relation to "adverse effects to human health or the environment." We believe that this reference "to

the environment" was a clear error, as there has been no discussion at any point or reflection in the

available documentation that the CAO program was intended as an environmental risk program as

opposed to a human health program. We request that DEQ revise the definition of "air toxics" to

remove the phrase "or the environment."

Response:

DEQ changed “air toxics” to “toxic air contaminants.” The definition of “toxic air contaminants” means

the air pollutants that have been determined by the Environmental Quality Commission to cause, or


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reasonably be anticipated to cause, adverse effects to human health and are listed in OAR 340-245-8020

Table 2.




Comment Category #118: Definitions - supports exposure location definition

Description: The commenter strongly supports DEQ’s proposal to define residential and nonresidential

chronic exposure locations based on current and planned zoning. This approach to regulating air toxics

will ensure that modeling and risk assessment accounts for potential changes at exposed receptors

locations at the outset and will ensure protection of public health as communities surrounding sources

of industrial air toxics change and grow.

Response:

SB 1541 states that a person in control of the air contamination source may elect to have the emissions

from the air contamination source evaluated and regulated based on modeling of "the impacts by toxic

air contaminants on locations where people actually live or normally congregate. There is a presumption

that people actually live or normally congregate in locations in the manner allowed by the land use

zoning for the location, based on the most recent zoning maps available." Since people do not actually

live or normally congregate in areas planned to be zoned for residential or nonresidential use, DEQ

removed that rule language.

Risk is determined based on land uses allowed under current zoning. As allowed under SB 1541, a facility

can ask for risk to be based on actual current use, if different from zoning. For example, if a lot is zoned

for residential use but there is no house there, a facility could send this information to DEQ. If DEQ

approves the request, that location would no longer be treated as a residential exposure location for

which to estimate risk. However, the facility is required to send updates to show whether use of that

land had changed. Conversely, if a lot is zoned industrial and a house is located there, the facility would

be required to assess risk at the house as a residential exposure location. For example, if a there is a

planned zoning change from commercial to residential, the facility might choose to assess risk as

residential rather than be faced with having to report the zoning change later and with having to update

the risk assessment.





Item G 001267


Comment Category #119: Definitions - TBACT definition should include

presumptive TBACT

Description: Proposed OAR 340-245-0020(59) “Toxics Best Available Control Technology.”

This definition should be revised as provided below:

After the word “feasible,” add “as provided in OAR 340-245-0230.” It is important that this definition be

revised so that the “presumptive” TBACT aspect is not overlooked; TBACT can be accomplished under

the CAO and SB 1541 without the need for a case-by-case TBACT analysis. The proposed 340-245-0230

includes various ways of determining TBACT, including the reliance on existing compliance mechanisms.

As appropriate, a source need not complete a case-by-case TBACT evaluation. The definition should be

revised to make that clear.

Response: DEQ changed the proposed rules in response to this comment.



Comment Category #120: Definitions - "toxic air contaminant" should still

include reference to establishment by EQC

Description: The revised definition of toxic air contaminant has deleted the role of EQC in setting the list

of regulated chemicals. What is the purpose of that deletion? As we have already pointed out, we object

to the lack of involvement of the ATSAC and would urge immediate involvement of ATSAC at this point

in the definitions. If the deletion of the EQC is intended to allow the department to make changes to the

list of prescribed pollutants/toxic air contaminants on its own, then the commenter objects. We believe

it is best if the citizen leadership – the EQC– remain involved in establishing the list of regulated

chemicals.

Response: DEQ agrees with commenter and changed the proposed rules in response to this comment.



Comment Category #121: Economy - Citizens have higher health care costs from

illness caused by pollution

Description: Citizens have higher health care costs from illness caused by pollution


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Response: DEQ agrees with the commenter. Studies support the health and economic benefits from

controlling air pollution.




Comment Category #122: Economy - may hurt Oregon's economy

Description: Proposed rules have the potential to drive businesses out of the state and hurt our

economy. These regulations put our facility at a competitive disadvantage as compared to rest of the

country and potentially jeopardize the jobs the mill both directly and indirectly support. These proposed

rules could cause some of our largest employers to reconsider expansion and perhaps even look to

move operations elsewhere. These manufacturing jobs are critical to our rural community, offering

family wage jobs and more stability than other jobs. A loss of these jobs would significantly affect the

health of newly unemployed and strain local social services. Employers of all sizes and sectors sat that

the proposed regulations and fees, along with the additional permitting fees and consultant costs are an

undue hardship for their business. It will at best curtail current operations, and at worst push employers

of all sizes to look elsewhere to operate, or shut down altogether, removing good-paying jobs from our

community.

Response: Economic analysis of the Federal Clean Air Act and California toxic air contaminant

regulations has shown that programs to control the health risk from industrial toxic air contaminant

emissions can have long-term financial benefits, and did not in general result in job loss. However, in

specific cases where businesses could experience harmful financial impacts, proposed Cleaner Air

Oregon regulations have provisions that would allow for more time to comply or other types of

regulatory flexibility.




210, 212, 216, 228, 230, 258, 277, 279, 301, 302, 307, 310, 311, 312, 313, 314, 333, 344, 347, 352, 353,

354, 376, 377, 378, 390, 401, 432, 450, 495, 500, 505, 535, 550, 556, 594, 611,

Comment Category #123: Economy - may not hurt Oregon's economy, may help

Oregon's economy by lowering health care costs and providing more jobs


Item G 001269


Description: There are significant employment opportunities in the air pollution industry itself. Cleaner

air means fewer air pollution related illnesses. The Clean Air Act has been a good economic investment

for Americans. Multiple peer reviewed economic studies show that the substantial public health benefits

of the Clean Air Act are far greater than the costs of achieving them. Economic welfare and economic

growth rates are improved because cleaner air means fewer air-pollution-related illnesses, which in turn

means less money spent on medical treatments and lower absenteeism among American workers. One

reason that environmental protection and a healthy economy can go hand in hand is that the money

spent on reducing pollution does not disappear. It goes to companies that design, build, install, maintain

and operate pollution-reducing processes and equipment. The contribution of the pollutant control

industry to overall U.S. economic activity and growth should not be overlooked. Please bear in mind the

overwhelming research that shows the huge savings in public health dollars against the meager impact

to businesses (30/1) or the fact that all the other established health-based programs you looked at

throughout this rulemaking process have not caused their local economies to collapse.

Response: DEQ and OHA agree that the Cleaner Air Oregon program could have economic as well as

health benefits. Economic analysis of the Federal Clean Air Act and California toxic air contaminant

regulations has shown that programs to control the health risk from industrial toxic air contaminant

emissions can have long-term financial benefits, and did not in general result in job loss. The intent of

the draft rules is to create a program that benefits both health and local economies. The specific

economic impacts of the program will depend on how many facilities need to reduce risks and which

industries are most impacted. Once the program implementation begins, DEQ will have more

information about which industries pose the highest health risks and therefore will need to take action

to reduce health risks.




663, 724, 761, 769, 677

Comment Category #124: Emissions Inventory - Allow source to challenge DEQ

rejection of an EI report

Description: The proposed CAO rules allow DEQ to provide a notice of deficiency to an inventory report

and, upon receipt of a revised and resubmitted inventory, modify the inventory report as "DEQ deems

appropriate." A source should have a right to challenge DEQ's determination of a deficiency as well as

any final decision. The proposed rules should be revised to indicate that any decision made by DEQ

under OAR 340-245-0340 can be challenged as a contested case proceeding under OAR 340-011.

Response: DEQ modified the draft rules regarding submittals to address emissions inventory submittals

for completeness, approving extension and requesting additional information. Division 11, Rules of

General Applicability and Organization, applies to all of DEQ's divisions: air, land and water. It is not


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necessary to state that Division 11, which contains procedures for contested cases, applies to any

specific Cleaner Air Oregon rule.




Comment Category #125: Emissions Inventory - clarify purpose and

requirements

Description: In the emissions inventory used for screening or initial evaluation, there may be some value

in overestimation but the public, competitors and sources will all benefit if the requirements of the CAO

address actual emission or, when not available, estimates based on regulatory best practices.

In OAR 340-245-0040(2)(a)(B) and (3)(a)(A), the “may have” or “all potential” standards for what

changes need to be evaluated is too inclusive and speculative. Too many sources will be required to

analyze changes with no actual or likely impact on emission. In OAR 340-245-0060(2)(b), the CAO uses

the concept of “likely.” Such a probability element should be a minimum requirement before a source

need address a change. “May have” or “all potential” should be replaced with “likely” or “reasonably

likely.”

In OAR 340-245-0040(3)(a)(B)(iii), maximum 24 hour production and process rates are difficult to

determine. This is an onerous concept that is not necessary to the complete determination of emissions.

While perhaps useful for acute health risks, if focused on actual emissions, we request the rule be

revised to assess the requirement after initial evaluation and only for those sources with serious acute

risks due to actual emissions.

Response: DEQ has not included proposed rules that address the initial emissions inventory required of

sources in 2017 that will be used for ranking since that work is complete. In that 2017 request, DEQ

required actual emissions and projected maximum year emissions submittals from Title V, Standard and

Simple Air Contaminant Discharge permittees. DEQ has included proposed rules for "individual

emissions inventory for risk assessment" and "periodic state-wide emissions inventory." Updating this

data to use in a risk assessment should not be difficult because sources already submitted their 2017

emissions inventory data.

Sources may choose whether their risk assessment is based on

• the source’s Potential To Emit in its current operating permit;

• a PTE or risk limit that is lower than the source’s PTE in its current operating permit, if requested

by the owner or operator;


Item G 001271


• or the actual toxic air contaminant emission rate of the source, if requested by the owner or

operator.

This choice will establish Source Risk Limits in Toxic Air Contaminant Permits. DEQ agrees that the

community should know what potential risk is from actual emissions but should also be aware that

potential risk could be based on the emissions for which a source is permitted.

DEQ has changed the proposed language to eliminate the inclusive and speculative rule language.

Until 2001, sources were required to have daily Plant Site Emission Limits in their permits so that data

should be still available. Daily emissions are critical to evaluate acute risk.




Comment Category #126: Emissions Inventory - DEQ and facility should agree on

an emissions inventory plan/emissions inventory before submitting the risk

assessment

Description: The proposed CAO rules allow DEQ to request from any source an emissions inventory and

modelling information. Under the proposed regulation, a source has 30 days (subject to a 60-day

extension) to submit the requested information. As a preliminary matter, a source and DEQ should first

agree on a plan of what will go into the emissions inventory. Not all sources are identical and the

prescriptive requirements under OAR 340-245-0340 may not apply to all source. Second, the proposed

rule seems to only allow the use of reported emissions factors to determine emissions. Sources should

have the option of using (or completing) stack testing to determine actual emission rates. Lastly, there is

no connection between OAR 340-245-0340 and completing a Source Risk Assessment under OAR 340-

245-0080. As discussed above, DEQ and the source should first reach agreement on the emissions

inventory and modelling before completing the Source Risk Assessment. This will result in more accurate

data regarding actual risk.

Response: Sources are required to submit emissions inventory information on all Toxic Emissions Units

that emit toxic air contaminants, including exempt and de minimis Toxic Emissions Units. A plan for what

should be included in a toxic air contaminant emissions inventory is not necessary.

DEQ agrees with the commenter and changed the draft rules so that the owner or operator submits the

risk assessment in pieces that need DEQ approval before the next piece is submitted. The first submittal

is the emissions inventory (using emission factors that can include source test data or continuous

emissions monitoring data) that must be approved before the modeling protocol is submitted. DEQ has

extended the amount of time a source has to submit the emissions inventory from 30 days to 90 days.


Item G 001272


After receiving approval of the emissions inventory, the owner or operator must submit the modeling

protocol for approval. Depending on the level of risk assessment being submitted, the next piece is the

Level 1 or Level 2 Risk Assessment or the work plan for the Level 3 or 4 Risk Assessment. After DEQ

approves the work plan, the owner or operator must submit the Level 3 or 4 Risk Assessment. If risk

reduction is required, the last submittal is the Risk Reductions Plan.




Comment Category #127: Emissions inventory - does not support reporting of

600 air toxics

Description: The list of “air toxics” that DEQ has included in the rulemaking is extremely broad and

includes 601 compounds, only 260 of which have toxicological information. For the rest of the listed

chemicals, the Notice indicates that there isn’t any “health data sufficient for calculating risk to people

who are exposed to the emissions.” As it stands, with 601 listed chemicals, the CAO rule threatens to

create an undue financial burden on the business community and state agencies by regulating such a

large number of compounds. The list should be limited to compounds with well quantified health

impacts.

Response: DEQ is requiring sources to report emissions of approximately 600 toxic air contaminants

even though approximately 260 have toxicity data for which DEQ and OHA are proposing Risk Based

Concentrations. If there are toxic air contaminants that do not have Risk Based Concentrations but still

emitted at high levels in Oregon, the agencies will consider developing Risk Based Concentrations for

those toxic air contaminants.




Comment Category #128: Emissions Inventory - encourage source testing and

source-specific emissions factors

Description: The rules should explicitly allow source tests and manufacturer data to be used to establish

emission factors. The draft rule cites AP-42 and things like that. AP-42 emissions factors are overly

conservative, they’re not really real, they haven’t been updated in years so I think alternate methods of

establishing emission factors by sources is very important.


Item G 001273


Response: Owners or operators always have the option to source test to provide better emissions

estimates. This is encouraged in the existing permitting program and for Cleaner Air Oregon. DEQ has

added language to clarify that source test data and continuous monitoring data can also be used to

establish emission factors.




Comment Category #129: Emissions Inventory – more time should be allowed

Description: Commenter is concerned that the process for developing emission inventories in the

proposed rules is inadequate. The single most important thing is to ensure that each source has an

accurate inventory that DEQ endorses prior to commencing modeling. The emissions inventory section

of the proposed rules needs to be substantially rewritten to integrate the inventory requirements into

the rest of the program, to require discussion before and during inventory preparation and to ensure

that DEQ timely reviews and approves finished inventories.

If DEQ ranks sources based on the inventories previously submitted, the program will necessarily be

applied inconsistently and unfairly among sources that each prepared an inventory in good faith, but

without the benefit of a common regulatory structure to follow to ensure consistent, equivalent data for

purposes of comparison. Once the revised inventories are submitted, DEQ can complete the task of

ranking sources and then launch into the risk assessment process.

DEQ provides only 30 days for preparation of an emissions inventory with a maximum possible

extension of 60 days for both emissions inventory and modeling information. The time period should be

90 days or greater. The deadlines for submitting air toxic emission inventories are inconsistent

throughout the rule and we recommend the same timeline be required each time an emission inventory

is required to be submitted (e.g., 90 days).

Response: DEQ agrees with the commenter and changed the draft rules so that the owner or operator

submit the risk assessment in pieces that need DEQ approval before the next piece is submitted. The

first submittal is the emissions inventory (using emission factors that can include source test data or

continuous emissions monitoring data) that must be approved before the modeling protocol is

submitted,

DEQ has been doing a thorough review of the emissions inventories submitted by Title V, Standard and

Simple Air Contaminant Discharge Permittees in 2017. DEQ has corrected discrepancies and ensured

consistency across industrial categories whenever possible by using the same emission factors across

the same industry category unless there is good reason to use something different. This makes the

ranking even more consistent and fair. DEQ has worked extensively with many sources that submitted

emissions inventories to fill in "insufficient information" and ensure that the inventories are accurate

and complete. DEQ will rank all sources using the same methodology in order to ensure consistency in


Item G 001274


the ranking process. This thorough review will ensure that DEQ has the most accurate emissions

inventory possible to use for ranking sources to be called into Cleaner Air Oregon.

The emissions inventories submitted for ranking are not necessarily the ones that DEQ will use for the

risk assessments. DEQ will give sources another opportunity to submit an emissions inventory before

they submit their risk assessment. Since DEQ has worked closely with sources to update the 2017

emissions inventory submittals for the ranking process, updating the emissions inventory for risk

assessment should be a much simpler task than the original inventory, assuming there are not complex

process changes.

DEQ agrees with the commenter that 30 days may not be adequate time to prepare a toxic air

contaminant emissions inventory if processes or equipment changed since the 2017 submittals.

Therefore, DEQ will allow sources 90 days to submit an emissions inventory and will provide an

opportunity to request an extension if needed upon a showing of good cause.




Comment Category #130: Emissions Inventory - only require startup/shutdown

emissions if information is available

Description: Many facilities do not have information to calculate or estimate the emissions related to

startups and shutdowns. We recommend that language be added “where information is available.”

Response: Under OAR 340-214-0310, Planned Startup and Shutdown

(1) This rule applies to any source where startup or shutdown of a production process or system may

result in excess emissions, and

(a) That is a major source; or

(b) That is in a non-attainment or maintenance area for the regulated pollutant which may constitute

excess emissions; or

(c) From which DEQ requires the application in section (2).

(2) The owner or operator must obtain prior DEQ authorization of startup and shutdown procedures.

The owner or operator must submit to DEQ a written application for approval of new procedures or

modifications to existing procedures. The application must be submitted in time for DEQ to receive it at

least 72 hours before the first occurrence of a startup or shutdown event to which the procedures apply.

DEQ will clarify this requirement in the rules.



Item G 001275




Comment Category #131: Emissions Inventory - provide procedures for

reviewing emissions inventory

Description: Refers to “procedures” for emission inventory review but there are no actual “procedures.”

The “procedures” should be provided with meaningful detail.

Response: In OAR 340-245-0030(3), DEQ specifies the process to review submittals along with

requesting additional information.




Comment Category #132: Emissions Inventory - require fees for full analysis and

require material balance for the whole facility

Description: Emission inventories are critical to identifying the toxic chemicals facilities are actually

emitting into the air, their amounts and their synergistic interactions. DEQ should include a fee to

complete a full analysis of the current emissions inventory as part of the CAO rules for all sources.

Failure to meet required deadlines for documentation on emissions must be subject to a fine and, after

a designated time period, a stop-work order for non-compliance should be issued. Furthermore, we

highly recommend that the DEQ move from Emissions Inventories to reporting based on Materials

Balancing covering air, water and waste emissions so that the DEQ can fully protect the environment

according to its designated responsibilities. We hope to see the DEQ adopt Materials Balancing

reporting within the next five years.

For facilities with older and outdated control equipment, combine emissions inventories with required

stack monitoring, and if there are public complaints about a facility, the DEQ should also require

fenceline monitoring.

Requirements can also include eliminating hazardous materials brought onsite and used in

manufacturing. The EQC should mandate requirements for industrial polluters to implement an

upstream toxic use reduction strategy in addition to downstream control technology.

Response: The staffing model for Cleaner Air Oregon includes a dedicated full-time staff person to do

toxic air contaminant emissions inventory work. In the future, permit writers will review emissions


Item G 001276


inventories for risk assessment. General Fund dollars and fees paid by permitted sources fund the staff

for Cleaner Air Oregon.

DEQ sent the initial toxic air contaminant emissions inventory request in November 2016 and received a

substantial response from sources. DEQ sent reminder letters and called some sources that failed to

submit information. In the summer of 2017, DEQ sent approximately 30 warning letters to sources that

did not report and received information from all but 18 sources. These 18 sources are on Basic and

General Air Contaminant Discharge Permits, the least complicated permits that DEQ issues. DEQ only

requested production information from these sources because DEQ is doing the emissions inventory for

all of these permittees. DEQ can use past annual reports from these 18 sources to estimate their toxic

air contaminant emissions. Because toxic air contaminant reporting is new to sources in Oregon and

because of the high compliance rate, DEQ decided not to take enforcement against non-reporters at this

time. For those non-reporters, in the absence of more accurate data, DEQ will use higher-end estimates

of their emissions that would result in health protective assumptions about potential risk. In the future,

DEQ anticipates taking enforcement action against sources that do not comply with the requirements of

Cleaner Air Oregon, including emissions inventory requirements.

DEQ agrees that a materials balance approach to emissions inventory covering air, water and waste

emissions would provide a comprehensive picture of potential risk. However, DEQ currently does not

have the resources to implement this approach to regulate and protect the environment. In addition to

information from Cleaner Air Oregon, community members can also learn about potential for exposure

to industrial emissions from EPA's Toxic Release Inventory. The TRI tracks the management of certain

toxic chemicals that may pose a threat to human health and the environment. U.S. facilities in different

industry sectors must report annually how much of each chemical is released to the environment and/or

managed through recycling, energy recovery and treatment. A "release" of a chemical means it is

emitted into the air or water, or placed in some type of land disposal. This information is available on

EPA's website - My Right-To-Know Application: https://www.epa.gov/toxics-release-inventory-tri-

program/my-right-know-application.

Some sources are currently undertaking source testing to better estimate their toxic air contaminant

emissions. If potential risk is high, DEQ may require that sources perform source testing for toxic air

contaminants that drive risk. Ambient monitoring is a provision in the draft rules that sources may use

to measure ambient concentrations of toxic air contaminants. DEQ also operates toxic air contaminant

monitors statewide but these monitors capture area emissions or typical conditions within communities.

DEQ does not routinely perform ambient monitoring that is specific to an individual source. In the rare

situations when it does, the locations, duration and pollutants monitored may not yield all of the

information required in risk assessment modeling. Meteorological data and production data from the

source would also be required in order for DEQ to determine if ambient concentrations are attributable

to the source in question.

DEQ has developed but not mandated Recommended Procedures for Pollution Prevention that were

included as an addendum to the Cleaner Air Oregon rulemaking package. These procedures include

specific elements of a chemical alternatives assessment. The procedures outline the criteria for

determining whether a chemical substitute, or non-chemical alternative, will achieve an overall

reduction in hazards compared with the chemical a source is seeking to replace. The Pollution


Item G 001277


Prevention Procedures document also includes references to established screening and evaluation tools

that sources can use to ensure the alternatives selected are demonstrably less hazardous.




Comment Category #133: Emissions Inventory - Require more information,

make available to public

Description: Transparency in regard to what people are breathing and where emissions and pollution is

located should be a top priority. Access to the emissions inventory should be available online in a user

friendly format. The public should also get to see a list of which industries have not submitted their

reports or have incomplete reports. Industries must be required to verify their Inventory Reports with

purchasing and production data.

Require that all air polluters provide the following information: What pollutants each business emits and

how much, the height of smoke stacks which influences dispersion, and distance to the nearest resident.

User-friendly data accessibility is essential for the community input requirements of CAO. Estimates are

not acceptable.

Response: DEQ agrees with the commenter to make the emissions inventory available online in an easy

to use format. DEQ plans to post all applications, including the emissions inventory, submitted for

Cleaner Air Oregon on DEQ's website. Applications will include each business's emissions, stack

parameters (i.e., location, height, diameter, temperature), and proximity of the closest resident along

with the level of risk assessment used by the owner or operator to assess risk.

During an emissions inventory, DEQ prioritizes source test and continuous emission monitoring data.

However, the use of emissions factors is necessary in many cases when this data is not available and/or

the cost of sampling/monitoring is cost prohibitive. DEQ reviews available emissions factors and

implements only the most appropriate and representative emissions factors to estimate toxic air

contaminant emissions. Many emissions factors are based on source test data from similar industries

and processes.

DEQ also allows sources to estimate toxic air contaminant emissions using a material balance method

for chemicals that are assumed to be emitted from a process unaltered - this method is conservative as

it assumes all input materials not recovered or consumed in a process are emitted. In rare instances,

DEQ relies on engineering estimates provided by the source to estimate toxic air contaminant emissions.

In these cases, the DEQ would review the calculations and exercise judgement as to the accuracy of the

underlying assumptions and methodologies. DEQ will require source testing when the engineering

estimates of significant toxic air contaminant emissions are unreliable and/or unsubstantiated.



Item G 001278




224, 259, 268, 275, 284, 300, 461, 499, 506, 515, 524, 924, 728, 725, 801, 797, 757, 769, 779, 803, 755

Comment Category #134: Emissions Inventory - should evaluate data skew and

data distribution, and use median rather than mean

Description: Measures of central tendency to characterize emissions values should be an appropriate

statistic based on the actual distribution of emissions inventory data. A large preponderance of

emissions data are non-parametric; that is the data are skewed and non-normally distributed. As a

result, the ‘mean’ is not an appropriate measure of central tendency for these data, and risk

assessments based on mean exposure values for emissions inventories will lead to scientifically

unreliable risk assessment outcomes. The commenter recommends that emissions inventory data be

evaluated for data skew and data distribution and have an appropriate measure of central tendency

(typically the median) provide the basis for a scientifically defensible emissions characterization.

Response: Currently for the Toxic Air Contaminant Emissions inventories, DEQ adheres to EPA guidance

provided to the agency’s air permitting program that requires use of the mean value rather than

confidence intervals, quartiles, or median when selecting emissions factors.

DEQ intends to continue utilizing the best available data when selecting emissions factors for the

Cleaner Air Oregon Program implementation. Continuous emissions monitoring and source test data will

be the first choice for emissions factor selection and will continue to be based on the mean values

where appropriate.

When DEQ selects emissions factors from external agencies (e.g., EPA, SCAQMD, etc.) and research

groups (e.g., NCASI), DEQ assumes these entities have employed the appropriate statistical analyses to

provide the most accurate and representative emissions factors. In the case where multiple statistical

parameters are available from these sources (e.g., mean, median, quartile, confidence interval), DEQ will

continue to use the mean value for selecting emissions factors unless the entity provides guidance

based on sound statistical analyses as to why an alternative parameter will more accurately reflect

emissions.





Item G 001279


Comment Category #135: Emissions Inventory - Should include a provision for

confidential business information

Description: The proposed CAO rules allow DEQ to request from any source an emissions inventory and

modeling information. The information that can be requested is not just "emissions data" but includes

production, fuel and material usage rates; projected maximum daily and annual production and process

rates; operating schedules and other information. There are no provisions under the proposed CAO

rules to protect confidential business information. OAR 340-245-0340 should be revised to include a

reference to OAR 340- 214-0130 (Information Exempt from Disclosure).

Response: The provision for protecting confidential business information is included in OAR 340-214-

0130, Information Exempt from Disclosure. OAR 340-245-0010, Applicability and Jurisdiction, lists other

divisions of air quality rules that apply to sources subject to Cleaner Air Oregon, division 245. Among this

list of other applicable divisions is division 214 Stationary Source Reporting Requirements, which

includes Information Exempt from Disclosure. Owners or operators that want to protect confidential

business information can do so by following the procedures in OAR 340-214-0130.

DEQ agrees with the commenter that the production, fuel and material usage rates requested for the

emissions inventory should be submitted if it is used to calculate emissions.




Comment Category #136: Emissions inventory - supports reporting of 660 air

toxics

Description: Commenter supports required reporting of 660 air toxics from all commercial and industrial

facilities that emit air toxics. Add chemicals that may be identified by Federal or State Law as those

pollutants surface thru innovation and not wait until permits are reviewed or reissued.

Response: DEQ agrees that a comprehensive emissions inventory will be invaluable to Cleaner Air

Oregon. Sources are required to report emissions of approximately 600 toxic air contaminants. Of those

approximately 600 toxic air contaminants, approximately 260 have toxicity data for which DEQ and OHA

are proposing Risk Based Concentrations for permitting purposes. If there are toxic air contaminants

without Risk Based Concentrations that facilities emit at high levels in Oregon, the agencies will consider

developing Risk Based Concentrations for those toxic air contaminants.

Changes to the list of reporting toxic air contaminants and permitting toxic air contaminants occur

through rulemaking. People can request that DEQ add or remove toxic air contaminants from either list

but must follow the procedures in OAR 340-245-0310 Process for Updating Lists of Regulated Toxic Air

Contaminants and Their Risk-Based Concentrations.



Item G 001280



Comments linked to this category: 22, 138, 259, 262, 297, 300, 308, 506, 515, 551, 651

Comment Category #137: Environmental Justice - Cully neighborhood impacted

disproportionately

Description: The residents of Cully, often under-represented and ignored in the racial and class set-up of

Portland, have historically experienced the effects of these pollutants and toxins disproportionately.

Cully’s many schools house children from challenging socioeconomic communities. Cully’s new

residents, who arrive seeking an affordable place to live their dreams, and raise their families, are often

perplexed and confused by nuisance odors and the lack of accountability by state agencies to deal with

chronic, persistent, industrial pollution. For the original stakeholders, elderly and working residents, who

have been ignored and marginalized, it is just more of the same that industrial polluters have succeeded

in normalizing.

Response: DEQ and OHA have incorporated environmental justice considerations into multiple aspects

of the draft Cleaner Air Oregon regulations. While the scope of the draft regulations is not large enough

to include issues like nuisance odor, the agencies anticipate that Cleaner Air Oregon will provide

additional health protection for sensitive populations living near industrial facilities through the

following measures:

• proposed protective risk based concentrations;

• consideration of multi-pathway exposures;

• consideration of total cancer risk and noncancer effects at regulated facilities;

• proposed reasonably protective Risk Action Levels;

• development of procedures to prioritize facilities for call-in that consider sensitive populations and

overburdened communities; and

• development of robust public engagement procedures and guidelines.




Comment Category #138: Environmental Justice - DEQ has not met its

obligations


Item G 001281


Description: DEQ should explicitly outline the agency’s statutory obligations under federal and state law

(including Title VI of the Civil Rights Act of 1964, Executive Order 12898, and ORS 182.545) to account

for the environmental justice impacts of the proposed rules. These obligations should be clearly outlined

in the rules and include a description of how the rules provide “equal protection from environmental

and health hazards, and meaningful public participation in decisions that affect the environment in

which people live, work, learn, practice spirituality, and play.” DEQ needs to fully staff and resource a

Citizen Advocate position to ensure that underrepresented and disproportionately impacted

communities have opportunities to meaningfully participate in critical permit and rulemaking processes.

The Area Multi-Source Risk Determination as outlined in section 340-245-0090, however, would benefit

greatly from the enhanced community engagement that such a fully-staffed and resourced position

would bring. DEQ and EQC have legal obligations under both federal and state law to account for the

environmental justice impacts of the proposed rules. These legal obligations require DEQ to utilize

demographic data to assess whether the benefits and burdens of the CAO program will be shared

equally by all communities in Oregon regardless of race, ethnicity, income, or other demographic

considerations.

Response: DEQ agrees that it has the legal responsibilities outlined by the commenter. DEQ and OHA

believe that the proposed provisions of Cleaner Air Oregon rules will address environmental justice

concerns and provide sufficient tools and opportunities to ensure equal protection from environmental

and health hazards and meaningful participation in decisions that affect the environment in which

people live, work, learn, practice spirituality and play, in accordance with Title VI of the Civil Rights Act of

1964, Executive Order 12898, and ORS 182.545. It is not necessary to restate these legal authorities in

the Cleaner Air Oregon regulation.

Current DEQ funding includes 0.2 Full Time Equivalent (FTE) allocated for an Environmental Justice

advocate position to serve all agency programs. A preliminary draft policy option package submitted as

part of DEQ’s Agency Request Budget includes 1 FTE, one full time position, specifically for

Environmental Justice and Title VI work. That requested position would assume the current advocate

responsibilities and expand on DEQ’s meaningful engagement on agency decisions and activities. That

requested position would also hold the primary responsibility for Title VI compliance at DEQ. This

proposed position, if approved by the Legislature, would be part of the DEQ 2019-21 budget.

The proposed rules provide requirements and options for conducting community engagement, as well

as resources that DEQ may develop or consult with. The recent legislation and this rule package provide

2 FTE of resources to this work to ensure robust, proactive community engagement and coordination: a

Cleaner Air Oregon community engagement coordinator at DEQ, and community engagement and

health education specialist at OHA. These positions would lead the development of a comprehensive set

of procedures and guidelines for proactive communication and provide flexibility in working with

communities to keep neighbors informed and involved in the process. DEQ and OHA will base these

procedures on community engagement best practices including consideration of resources provided by

the Oregon Environmental Justice Task Force, and the comments received during the first public notice

period, and there will be an opportunity for public and stakeholder input on the procedures. Compared

to having a prescriptive process in the regulations, this will allow for greater detail and flexibility to tailor

the community engagement process to the needs of communities.


Item G 001282




contamination sources.” Because Senate Bill 1541 mandates specific requirements of the pilot program,

many of the comments on the Area Multi-Source rules in the first Cleaner Air Oregon public comment

period are no longer applicable. The current draft of the Cleaner Air Oregon rules contains no reference

to Area Multi-Source risk. DEQ will be undertaking a separate rule-making effort to establish the pilot

program to evaluate and control public health risks from multiple facilities. DEQ anticipates that specific

procedures for identifying, evaluating and choosing the multi-source pilot location, as well as other key

details such as the Clean Communities Fund, will be addressed in the separate rule-making work for this

program element. DEQ received 1.0 FTE to develop and support any programs or rules related to this

pilot program. DEQ appreciates public interest in this issue. We encourage commenters to participate in

the pilot program rulemaking when it begins, and at that time make additional comments specific to the

proposal as governed by Senate Bill 1541.




Comment Category #139: Environmental Justice - include farm workers

Description: In order to improve upon the accuracy of the description of “environmental justice” and

provide the protective language environmental justice demands, OAR 340-245-0020(15) should be

altered to explicitly include the farm worker population. Community engagement procedures in rural

communities with farm worker populations should be specifically tailored to meet the communication

needs of this population so that all affected community members may be present and meaningfully

involved in processes which impact the air they breathe.

Response: DEQ has proposed the use of Oregon's Environmental Just Task Force definition of

environmental justice and wants to continue using that definition since it is widely known and used. The

EJ Task Force definition states "Environmental Justice communities include minority and low-income

communities, tribal communities, and other communities traditionally underrepresented in public

process." This does not mean that underrepresented communities exclude farm workers because they

are not listed. Potentially other communities that are traditionally underrepresented in the public

process are not listed. In some cases, listing specific classes of individuals could lead to the unintended

interpretation of excluding others who are not specifically listed.








Item G 001283


procedures. Compared to having a prescriptive process in the regulations, this approach will allow

greater flexibility to tailor the community engagement process to the needs of communities.

The definition of "acute exposure location" means a place outside the boundary of a source being

modeled for 24-hour average concentrations of a toxic air contaminant, and that is either or both:

(A) A chronic exposure location; or

(B) A location where a person may spend several hours of one day, such as but not limited to parks,

sports facilities and agricultural fields.

Since agricultural fields are considered acute exposure locations for risk assessment, the health of farm

workers will be considered in assessing potential risk and risk reduction when necessary.




Comment Category #140: Environmental Justice - supports prioritization of EJ

communities

Description: Commenter supports prioritization of environmental justice communities in

implementation and enforcement.

Response: Using low income and minority population data in the overall prioritization of facilities for

Cleaner Air Oregon is an important part of DEQ's effort to address environmental justice by reducing

disproportionate impacts of toxic air contaminant risk on overburdened populations. The 2017 draft

rules proposed to prioritize sources using a formula that considers risk, exposure, and minority and low

income populations.

In the 2018 draft rules, DEQ has removed the detailed procedures for prioritizing sources for call-in as

well as the limit on the number of sources to call in during the first five years of the program. Under the

current proposal, DEQ would use the following criteria to call-in facilities:

• same formula including low income and percent minority as the 2017 draft rules;

• relative severity of health risks;

• existing facility pollution controls;

• exposure distance;

• additional information on emissions and risk screening;

• any changes in emissions that DEQ learns about that were not captured in the initial screening; and

• efficient allocation of DEQ resources.


Item G 001284





259, 261, 273, 297, 300, 303, 308, 315, 319, 341, 350, 351, 367, 402, 438, 441, 452, 464, 469, 478, 487,

506, 511, 515, 528, 591, 599, 637, 649, 651, 659, 661, 807, 702, 777, 686, 697, 720

Comment Category #141: Exempt and de minimis sources - allow sources to go

directly to risk assessment requirements

Description: Proposed OAR 340-245-0050(c)

This subsection requires a source to prove that it is exempt or de minimis before performing a risk

assessment. If a source recognized that its unlikely (or impossible) for it to be exempt or de minimis, the

source should be able to move directly to developing a work plan for modeling, monitoring and a risk

assessment as appropriate. There is no value to the source or the department for an empty exercise.

The rule should be revised to make clear that a source can go directly to modeling, monitoring and a risk

assessment as appropriate.

Response: The proposed OAR 340-245-0050(1)(c) states "Except for exempt sources, the owner or

operator must first assess risk to demonstrate that the source is de minimis or that risk from the source

is less than or equal to the TBACT Level." The requirement says "or," not "and." DEQ has never intended

that all sources prove they are exempt or de minimis. Exempt sources are not required to perform risk

assessments so these proposed rules do not apply to them.




Comment Category #142: Exempt TEUs - do not require an emissions inventory

for these TEUs

Description: The inclusion of exempt TEUs in the emissions inventory imposes a significant and

unnecessary burden on sources. Exempt TEUs include Categorically Insignificant Activities such as office

activities, janitorial activities, grounds keeping, repair shops, routine maintenance, and many others.

Tracking the usage of products such as cleaners, lubricants, and paints in small amounts in these

activities is a burden that will provide no useful information or environmental benefit. Since emissions


Item G 001285


from exempt TEUs are not included in source risk assessments, sources should not be required to track

and report them in their inventories. The CAO rule should not require inventories to include exempt

TEUs, particularly Categorically Insignificant Activities.

Response: DEQ agrees with the commenter and has changed the proposed rule language to clarify that

exempt Toxic Emission Units do not have to be included in the emission inventory. DEQ has also

changed the proposed language to include maintenance and repair shops as exempt TEUs but may

require their emissions to be included in a risk assessment if DEQ finds that potential emissions could

create a significant risk to human health.




Comment Category #143: Exempt TEUs - do not require risk assessment to prove

exempt and add language about trace amounts

Description: The demonstration that a TEU is unlikely to emit toxic air contaminants does not require a

risk assessment. At most, a review of materials handled, processes involved, and materials emitted will

be sufficient. DEQ should delete the requirement for using a DEQ-approved risk assessment to show

that a TEU is exempt.

The standard for exemption ("not likely to emit toxic air contaminants") is inconsistent with the

examples that the rule provides of the types of information that may be relevant. The standard could be

misinterpreted as meaning that no toxic air contaminants may be emitted by an exempt TEU. However,

the rule provides examples of information that could be relevant to demonstrating exempt status,

including "[a]ny toxic air contaminant present in materials emitted are only trace contaminants that are

not intentionally present in the materials handled, processed or produced in the TEU. The actual

standard for exemption is "not likely to emit toxic air contaminants in more than trace amounts."

Response: DEQ agrees with the commenter. DEQ has removed the language requiring a risk assessment

to prove a Toxic Emission Unit is exempt. DEQ did not intend for exempt Toxics Emissions Units or

exempt source to perform risk assessment. DEQ added a subsection of OAR 340-245-0030 stating when

a submittal to prove exempt source status is due. DEQ also added the language "in more than trace"

amounts to the criteria for determining if an Emission Unit is exempt.



Item G 001286




Comment Category #144: Exempt TEUs - include emergency generators

Description: The proposed rules greatly reduce the exclusion of categorically insignificant emissions,

such as those from emergency generators. Emissions from these sources are likely to be minimal, as

they operate infrequently, and application of the regulations to these sources will demand considerable

resources for both regulated businesses and for DEQ. The commenter recommends that DEQ maintain

the categorically insignificant exclusion for emergency/stand-by generators.

Response: DEQ has not changed the exclusion of categorically insignificant activities for emergency

generators. As defined in division 200, the exemption for emergency generators states:

Emergency generators and pumps used only during loss of primary equipment or utility service due to

circumstances beyond the reasonable control of the owner or operator, or to address a power

emergency, provided that the aggregate horsepower rating of all stationary emergency generator and

pump engines is not more than 3,000 horsepower. If the aggregate horsepower rating of all stationary

emergency generator and pump engines is more than 3,000 horsepower, then no emergency generators

and pumps at the source may be considered categorically insignificant;

Sources with emergency generators that meet the criteria above are categorically insignificant and no

emissions from those generators would be included in a CAO risk assessment.

If an emergency generator does not meet the criteria above, then its toxic air contaminant emissions

from non-emergency use (including maintenance checks and readiness testing) must be included in a

CAO risk assessment. Emissions from emergency use during outages would not be included in CAO risk

assessments. Please see also Category #18: Applicability - exempt backup power generation because of

natural disaster




Comment Category #145: Exempt TEUs - include public input

Description: The owner or operator of a Toxics Emissions Unit seeking exemption from the rules may

demonstrate to DEQ that the unit is not likely to emit air toxics, placing the burden on the

owner/operator to explain to DEQ’s satisfaction why their unit should be exempt. There is no

opportunity for additional information from community individuals or organizations to be presented to

DEQ while DEQ considers the request for exemption. This provision needs to be altered to include an

opportunity for public input and information sharing regarding potentially exempt TEUs.


Item G 001287


Response: If the owner or operator demonstrates to DEQ's satisfaction that a Toxic Emission Units is

exempt, that demonstration will be available on DEQ's website since DEQ is posting all Cleaner Air

Oregon submittals. If all TEUs are exempt, then the source would also be exempt and would not be

required to obtain a Toxic Air Contaminant Permit Addendum. DEQ will maintain a list of sources that

are not required to obtain a Toxic Air Contaminant Permit Addendum and make that list available for

public review.

All Toxic Air Contaminant Permit Addendums require public notice. DEQ will identify a source that has

exempt TEUs in the Review Report, which explains the legal basis of the Toxic Air Contaminant Permit

Addendum. Both the proposed Toxic Air Contaminant Permit Addendum and the Review Report will be

available to the public during the public notice period.




Comment Category #146: Exempt TEUs - include TEUs that are unlikely to emit

air toxics at more than a trace level at new and existing sources

Description: Given the characteristics of the material being processed, all wastewater treatment units

should qualify as exempt. To make the standards for TEU exemption clear and internally consistent, the

CAO Rules should require that exempt TEUs be unlikely to emit air toxics at more than a trace level. Even

though it is likely that many TEUs at POTWs will be exempt, the requirement to demonstrate

exemptions will create a significant and unnecessary burden on the regulated community and DEQ.

Instead, the CAO Rules should allow sources to apply the rules and determine whether they are exempt

and not require DEQ approval.

Since new sources may also meet the standards for exemption, DEQ should allow new sources to secure

exempt status.

In addition to the requirement to submit supporting information to DEQ, the proposed CAO Rules

require the owner or operator seeking an exemption to submit a Risk Assessment Notification. Defined

only as a form that must be submitted to request de minimis or exempt status, there is no explanation

of the content of the form or the level of effort that may be required to complete it.

Response: The draft rule language defines an exempt Toxic Emission Unit and already includes

references to materials that may have toxic air contaminants in trace amounts, not intentionally

present:

(a) The TEU is listed in the definition of categorically insignificant activity in OAR 340-200-0020,

excluding subsections (a) and (m) of that definition; or


Item G 001288


(b) The owner or operator of the TEU has demonstrated to DEQ’s satisfaction in an approved risk

assessment that the TEU is not likely to emit toxic air contaminants. The demonstration may include any

information the owner or operator considers relevant, including but not limited to:

(A) The chemical make-up of the materials handled or processed in the TEU; the type of handling or

processing in the TEU, including whether or not the handling or processing is likely to alter the chemical

make-up of the materials; and the chemical make-up or likely chemical make-up of the materials

emitted by the TEU; and

(B) Any toxic air contaminant present in materials emitted are only trace contaminants that are not

intentionally present in the materials handled, processed or produced in the TEU, and are present in

such small amounts that they would typically not be listed in a Safety Data Sheet, product data sheet or

equivalent document.

Owners or operators of wastewater treatment plants may submit an analysis that shows their TEUs are

exempt. Emission factors for toxic air contaminants from publicly owned treatment works are available

from the South Coast Air Quality Management District so proving exempt status for toxic emissions units

is not burdensome for the source or DEQ. In fact, some publicly owned treatment works have done risk

assessments for the South Coast Air Quality Management District.

DEQ will change the draft rule language to clarify that new sources can also be exempt.

DEQ removed the concept of a Risk Assessment Notification. DEQ will now require use of applications

for Toxic Air Contaminant Permit Addendums.




Comment Category #147: Exempt TEUs - maintenance and repair shop emissions

should be exempt

Description: DEQ’s June 2018 proposed rules do not classify categorically insignificant maintenance and

repair shop activities as exempt TEUs. This is inconsistent with DEQ’s prior versions of the CAO rules,

which grouped maintenance and repair shops among the other types of categorically insignificant

activities exempt from consideration as TEUs. DEQ has provided no rationale for carving out

maintenance and repair shops while retaining the exemption for other, similar types of insignificant

activities. Maintenance and repair shops at industrial stationary sources are rarely the source of

anything more than a handful of inconsequential emissions. However, making these shops fully

regulated TEUs will require a substantial effort in regards to building an emissions inventory, modeling

and ongoing monitoring. If there is a particular issue of concern relating to certain maintenance shops,

then that issue should be addressed. However, requiring that every maintenance and repair shop be

regulated as a TEU is excessive.


Item G 001289


Response: DEQ excluded maintenance and repair shops from being exempt Toxic Emission Units

because of information indicating that potential high risk could result from the use of molten metal

pots. Upon further investigation, DEQ determined that toxic air contaminant emissions from these

molten metal pots did not pose high risk. Some owners or operators did report toxic air contaminant

emissions from their maintenance and repair activities, for which potential risk should be evaluated

further. Therefore, DEQ has changed the proposed language to include maintenance and repair shops as

exempt TEUs but may require their emissions to be included in a risk assessment if DEQ finds that

potential emissions could create a significant risk to human health.




Comment Category #148: Exempt TEUs - should not be required to obtain

construction approval

Description: The proposed language requiring that sources provide 10 days written notice prior to

constructing an exempt TEU should be revised. If a TEU is exempt from the program, it should not be

subject to any further requirements, let alone a 10 day delay in being able to proceed with construction.

Response: Categorically insignificant activities are exempt from the requirement to submit a Notice of

Construction unless they are subject to NESHAP or NSPS requirements. DEQ will apply the same criteria

to exempt Toxic Emission Units.




Comment Category #149: Existing rules are adequate

Description: Adequate rules covering point-source issuance of targeted chemicals and substances have

existed for many years in the Code of Federal Regulations. Oregon has benefited environmentally in

many ways from these already stringent regulations, resulting in very good air quality that has improved

drastically over the past ten years. Due to substantial investments in pollution control technology,

Oregon industrial sources now account for less than 15 percent of air pollutants. Adequate enforcement


Item G 001290


of existing Federal and State regulations should be carried out before adding additional and perhaps

unnecessary, unjustifiable, and burdensome standards to Cleaner Air Oregon’s rulemaking.

Response: DEQ agrees that federal regulations of emissions of toxic air contaminants from industrial

facilities have resulted in significant environmental benefits over the last 20 years. Many facilities in

Oregon have made emission reductions based on the National Emission Standards for Hazardous Air

Pollutants (NESHAPs) - the Maximum Achievable Control Technology (MACT) standards, the follow-up

Residual Risk standards, or both.

As effective as the NESHAP program has been, there can remain various gaps in regulatory protection of

public health at the state and neighborhood level. The federal standards only regulate 187 hazardous air

pollutants compared to the 660 toxic air contaminants proposed in Cleaner Air Oregon. Some categories

of industrial activity in Oregon emit toxic air contaminants that EPA has never regulated under the

NESHAPs. DEQ has petitioned for development of MACT standards for these categories but EPA has not

responded.

EPA hazardous air pollutant regulations have size cut-offs and other exclusions, further resulting in

industrial toxic air contaminants that are not covered by federal controls. If a facility is covered only by a

MACT (based on what is technologically achievable by the top 12% of best performing facilities), and

EPA has not yet performed Residual Risk analysis, there could be levels of unaddressed risk from

hazardous air pollutants. If EPA has performed a residual risk analysis and promulgated additional

regulations to control risk, resulting regulations could allow risk higher than the Risk Action Levels of

Cleaner Air Oregon. It is also possible that modeling used in residual risk determinations is not specific to

local conditions near a facility covered by the regulations.

Finally, under a federal executive order, some federal hazardous air pollution standards have been or

are proposed for deregulation (https://www.epa.gov/laws-regulations/epa-deregulatory-actions). In

addition, the scope of major source MACT applicability has been potentially drastically reduced with the

recent repeal of the "Once in Always in" EPA policy for implementation of the Clean Air Act. This change

in policy would allow sources that were once considered major sources and have reduced emissions so

they are no longer major sources to be exempt from MACT applicability and requirements. These

actions could severely impact the scope and protectiveness of some NESHAP standards for facilities in

Oregon.

In response to the comment about the relative contribution of industrial point sources compared to

other emitters, the levels of contribution of different sources of toxic air contaminants, for example

industry, on and off road engines, wood burning and other residential and commercial activity, is greatly

affected by the size and location of areas investigated. When averaging different source contributions to

toxic air contaminants across Oregon counties, industrial emissions are typically about 10%, while other

emissions, especially those from wood burning and gas and diesel engines can be much greater.

Significant levels of toxic air contaminants such as formaldehyde are formed in the atmosphere from

precursor chemicals. However, in neighborhoods within a half mile to a mile of industrial facilities,

health risk from industrial pollutants can greatly outweigh risks from other sources. Cleaner Air Oregon

focuses on understanding and managing the risk to people living near industrial facilities.



Item G 001291



Comments linked to this category: 216, 352, 376, 550, 740, 672, 736, 744, 732, 737, 735

Comment Category #150: Exposure location - clarify requirements for sources

with public access

Description: Level 2, 3, and 4 risk assessments are to be conducted at exposure locations approved by

DEQ according to OAR 340-245-0050. As written, the rules currently contain uncertainty for regulated

sources that have public access. These sources include, but are not limited to, hospitals, industrial

facilities with commercial/retail sales on-site, and airports. Commenter recommends that DEQ clarify

whether exposure includes the public access areas within a facility’s operational boundary. If so, it

underscores the need to accurately assess and represent the small risk associated with the diesel

generators that these vital facilities rely on.

Response: The proposed rules state that risk must be assessed at "a location where people live or

congregate and will be exposed to a toxic air contaminant present in the air." If a source has public

access within their operational boundary, they would be required to evaluate risk at these exposure

locations. Since these public-access exposures are transient, the toxics of concern are those with short-

term acute effects.




Comment Category #151: Exposure location - definition is inconsistent with

statute

Description: DEQ should limit assessments to locations where people actually live or normally

congregate, as required by SB 1541.

Response: To be more explicitly in compliance with statute (SB 1541), DEQ will revise the definition of

“exposure location” as follows:

(22) “Exposure location” means a location where people actually live or normally congregate and where

people, including sensitive populations, will be exposed to a toxic air contaminant present in the air, and

thus be the location of an air quality modeling receptor at which toxic air contaminant concentrations

and risk are evaluated by exposure type. Exposure locations are identified based on uses allowed by

land use zoning, except as allowed under OAR 340-245-0210(1)(a)(F) or when DEQ has sufficient

information to determine that an area is being used in a manner contrary to its land use zoning. An


Item G 001292


exposure location may be subcategorized as either or both a chronic exposure location or an acute

exposure location.

(4) “Acute exposure location” means an exposure location outside the boundary of a source being

modeled for daily average concentrations of a toxic air contaminant, and that is:

(a) A chronic exposure location; or

(b) A location where people may spend several hours of one day.

(11) “Chronic exposure location” means an exposure location outside the boundary of a source being

modeled for annual average concentrations of a toxic air contaminant, and can be either:

(a) A residential exposure location; or

(b) A non-residential exposure location.

One of the comments states that SB 1541 allows only the source to rebut the land use determination of

exposure location, and that DEQ is not authorized to disagree with the land use determination. SB 1541

says nothing about limiting the powers of DEQ to make a determination that actual use of a location

does not conform to the land use classification. SB 1541 states that DEQ can determine the land use

classification is not representative based on the documentation provided by the source.

If SB 1541 recognizes that DEQ has sufficient expertise to make an actual-use determination based on

information provided by the source, then DEQ has expertise to make an independent actual-use

determination on the same level of evidence that may be used by the source. The absence of specific

language in SB 1541 regarding any assessment by DEQ of the actual land use status of a location is not a

prescription against DEQ undertaking that assessment. DEQ has the same opportunity for assessing

actual use that is explicitly provided to sources.

Since actual use and type of exposure location are key factors in the risk determination, it does not

make sense to provide the ability for one party to make that correction and not the other. The fact that

a specific prescription was not provided in SB 1541 indicates that was not the intent of SB 1541.

A location where people may congregate, or a location where a single person may be for a portion of a

day, will likely be the same location. For example, public parks, sports fields or agricultural fields may be

an acute exposure location.

DEQ agrees that a conditional use permit may allow a use not included in the original land use

classification. However, the purpose of the word “contrary” in “contrary to the land use zoning” is to

identify those circumstances where “actual” use may depart from the formal land use designation, so

that a source can rebut the presumption that actual use conforms to land use zoning.

DEQ does not agree that the definition of “Non-resident exposure location” should be modified to read:

“in areas zoned for commercial or industrial uses.” The presumption of use where a “person or persons

may reasonably be present” is the same level of presumption as using land use designations that are

subject to the provision in SB 1541 that allows a source to rebut the presumption and replace with

actual use.


Item G 001293


In addition, the implementation of the proposed rule would identify any mixed-use residential-

commercial areas or buildings and classify them as residential exposure locations. As noted above, a

source may rebut the presumption that land use designation defines the exposure location. An example

of how this might be applied is the case of a store in a commercially zoned area with an apartment

above: the intent of the proposed rule would be to consider the actual use of this location as residential.

A primary goal of Cleaner Air Oregon is to assess risk on exposed populations, and a family exposed at a

conditional-use residential location within an area zoned commercial is no different than a family

exposed in an area zoned residential.




Comment Category #152: Exposure Location - do not require sources to report

changes in zoning

Description: Do not require all addenda to “include a condition that requires the owner or operator to

notify DEQ within 60 days of a change in zoning within 1.5 kilometers of the source if zoning results in a

change to the source’s risk.” There are no readily available tools to track zoning changes within a given

radius in real time.

Response: Counties and larger cities in Oregon maintain online zoning maps that can be periodically

checked to determine if zoning changes have occurred near a facility. Given the importance of knowing

the different populations that may be exposed to toxic emissions from a facility, DEQ considers this

simple check a reasonable requirement.




Comment Category #153: Exposure location - inclusion of sports facilities is

inappropriate

Description: Inclusion of “sports facilities” is inappropriate. Indoor facilities present significantly

different exposure scenarios than outdoor playgrounds/athletic fields. First, such places are not where

people actually live nor “congregate” as required by law. The events at such places are on varying

schedules with differing populations for various time periods. Second, “agricultural fields” are not where

people “actually live or normally congregate” as required by SB 1541.


Item G 001294


Response: Risk assessment as part of the proposed rule is of ambient air outside of buildings. The risk

assessment of exposures to people who congregate in outdoor sports facilities is for toxic air

contaminants with acute effects, which includes exposures of 24 hours or less. Evaluating acute

exposure at sports facilities is reasonable because, by design, people will normally congregate at these

locations. The fact that participant and spectator populations will vary is not a consideration for acute

exposure because the rule is intended to protect against adverse health effects occurring over a short

period of time. Workers at facilities will also be evaluated for chronic exposure.

Agricultural fields may have farm laborers who normally conduct work such as tilling, sowing, and

harvesting. Even if the work is seasonal, it is relevant to evaluate exposure because people may be

exposed to emissions of acute toxic air contaminants for 24 hours or less. If a source has evidence that

the land use designation does not represent actual activity, it can disprove the presumption of

agricultural use.




Comment Category #154: Exposure location - remove duplicative residential

areas, commercial areas and public space from modeling requirements and

clarify language

Description: The terms “residential areas,” “commercial areas,” and “public space” should be removed

from the modeling section since they are not defined and the definitions for exposure locations already

define where modeling receptors are placed. Second, SB 1541 requires that the analysis evaluate

“locations where people actually live or normally congregate.” Thus, this rule should simply apply to

“nonresidential exposure locations” and “residential exposure locations,” which are defined in the rule.

Proposed OAR 340-245-0210(5)(b). The rule remains vague as to what the Department would consider

an area “not being used in the manner allowed by the land use zoning at the time.” This would require

far too much analysis of the permitted uses and the uses actually established on the ground. And, it

could be read to require inclusion of an area that was largely undeveloped but which may have, for

example, one old farmhouse. Also, use of the term “manner allowed” is confusing, as even

nonconforming uses are “allowed,” meaning that this could be used by DEQ to basically knock down

every analysis. This section should be replaced as follows: “An owner or operator may provide

documentation to demonstrate an area is not being used in the manner intended by the land use zoning

of the area at the time the modeling is to be performed. An area zoned primarily for residential uses,

including single-family residential, multi-family residential, or mixed-uses, is considered to not be used

for its intended residential purposes if it is developed with a residential density of less than two (2)

dwelling units per acre within an urban growth boundary or less than one dwelling unit per acre outside

of an urban growth boundary.”


Item G 001295


The use of the dwelling unit/area measure allows the rule to be implemented. Sources can seek such

information from the local assessor; such information is available. The current draft rule seeks

information that is not known or is not tracked in an accessible format.

Proposed OAR 340-245-0210(5)(b)(B). For the same reasons, this section should be replaced as follows:

“If DEQ approves the exclusion, the owner or operator must annually submit to DEQ documentation

showing the excluded zoned area continue to not be used in the manner intended by the land use

zoning of the area. An area zoned primarily for residential uses is considered to still not be used for its

intended residential purposes if it is developed with a residential density of less than two dwelling units

per acre within an urban growth boundary or less than one dwelling unit per acre outside of an urban

growth boundary.”

Response: DEQ agrees that it would be helpful to provide additional details on criteria for allowing an

exclusion from current land use zoning. We propose that this be added to the Recommended

Procedures for Conducting Toxic Air Contaminant Health Risk Assessments document. DEQ does not

intend to include arbitrary limits on residential density. Instead, we can specify that in a very sparsely

populated area, air modeling can include individual residential houses or businesses that are currently

occupied, without the need to model the entire zoned area.




Comment Category #155: Fees - based on level of risk assessment rather than

outcome

Description: Fees should be related to the amount of work necessary for the review activities involved,

particularly for the Standard and Title V permits, similar to the sliding scale proposed for the base fees. It

is likely that permitting and risk assessment activities for Title V permits will be more complex than

Standard permits so the structure should reflect this additional level of complexity.

Response: In OAR 340-216-8030 Table 3, the Specific Activity Fee Table contains different fees for Title

V, Standard, Simple and Basic/General permittees because of the difference in complexity of these

source categories. Most of the fees are the same for Title V sources and ACDP sources but the fees for

the more complex levels of risk assessment are different based on the estimated hours to review the

applications and draft the permits. The proposed rules also contain a sliding scale fee based on the level

of risk assessment, Levels 1 through 4.

If the outcome of the risk assessment shows that potential risk is above Risk Action Levels, then a Risk

Reduction Plan is required. More work is required to review those types of applications that include

community engagement, pollution prevention or control, or inability to pay. DEQ has changed the

proposed fees for the Risk Reduction Plan to separate out the risk assessment review because sources

may want final approval of their risk assessment before determining how much their risk needs to be


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reduced. DEQ has changed the proposed rules to eliminate the TBACT Plan and just make the TBACT

requirement part of the Risk Reduction Plan, which is the overarching plan to reduce risk.




Comment Category #156: Fees - clarify language about fees being due

Description: Proposed OAR 340-245-0400(5)(c) is missing word: see “fees be due” in final line of this

subsection.




Comment Category #157: Fees - clarify modeling only fee

Description: Please provide clarification in rule for when the Level 2 and Level 3 "modeling review only''

fees would be applied.

Response: The ‘modeling review only’ fees are needed if a source requests approval of a new or

modified Toxics Emissions Unit and modeling is required under OAR 340-245-0060. The modeling may

be required for just the Toxics Emissions Unit being approved, not the whole facility.




Comment Category #158: Fees - Funding must be adequate. Fund CAO with

increased fees or general fund if necessary

Description: Increase fees on industry, both permitted and unpermitted facilities to cover expenses if

that’s needed. Adequate funding should be paid through the air quality permits. Hybrid methods of

funding such as general fund appropriation and the ability of DEQ to levy fees could also be used.


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Resources for emission inventory improvement/availability, community liaison/outreach and

environmental justice are necessary to keep moving in the right direction.

Legislators need to adequately fund the DEQ and the OHA to enforce these rules. Funding for this

enforcement should come from those that need air quality permits. Since DEQ is now funded, the public

urgently needs our agencies to utilize the most health protective science available. The public will hold

Oregon Health Authority (OHA) accountable to their duty to protect public health which means using

the most up to date science.

Response: DEQ agrees with the commenters that adequate funding for Cleaner Air Oregon is critical to

the success of the program. DEQ is proposing fees that owners or operators of sources will have to pay

to implement Cleaner Air Oregon. DEQ will charge a base fee that all current permittees must pay

annually, a call-in fee that sources who are called into the program will have to pay for DEQ resources to

help sources prepare Toxic Air Contaminant Permit Addendum applications, and Specific Activity Fees

that will be submitted when any applications are submitted. DEQ also receives general fund money to

pay for a portion of the program. A portion of the fees will also pay for staff at OHA.



Comments linked to this category: 812, 825, 11, 12, 13, 839, 20, 22, 36, 85, 92, 94, 102, 104, 107, 108,

111, 114, 138, 149, 158, 193, 206, 218, 224, 242, 259, 265, 280, 300, 308, 321, 341, 350, 351, 418, 424,

425, 485, 499, 506, 507, 515, 559, 566, 571, 580, 582, 625, 638, 660, 804, 762,

Comment Category #159: Fees - lower fees for CAO Monitoring Plan review

Description: The $59,000 fee for submission of the Cleaner Air Oregon Monitoring Plan (the highest of

the current proposed activity fees) may provide a disincentive for entities to voluntarily collect air

monitoring data. This level of fee could prevent collection of data for industries that currently have

limited or inaccurate data and emissions factors for use in inventories and modeling. The commenter

recommends a sliding scale for fees based on the effort of review for DEQ.

Response: Ambient air monitoring is costly because good estimates of an annual average concentration

typically require monitoring at least one day in six over a full year. In addition, ambient monitoring for

24-hour concentrations could potentially require daily monitoring. Cleaner Air Oregon ambient

monitoring is the most complex type of permit application that can be submitted and the fee was based

on the estimated hours of work needed to review this type of application along with the ambient

monitoring data that is submitted.

Siting ambient monitors requires detailed modeling in addition to the risk assessment because ambient

monitoring can only delay required risk reduction if potential risk is above 200 in a million or a hazard

index of 20. This evaluation cannot be done without an assessment of potential risk. Quality

assurance/quality control is critical to gathering accurate data. Evaluating a year's worth of ambient


Item G 001298


monitoring data is very time consuming, especially when meteorological data and production data must

be evaluated with the ambient monitoring data.

Ambient monitoring measures concentrations of toxic air contaminants, not emissions, so it will not be

possible to determine emission factors from ambient monitoring. Continuous Emissions Monitor

Systems or source testing would be the best methods to determine emission factors.

DEQ did not change the proposed rules in response to this comment but did make changes to the

proposed structure of the specific activity fees. DEQ separated the proposed risk assessment fee from

the risk reduction fee, the air monitoring fee and the postponement of risk reduction fee. This will allow

a source to obtain approval before determining if risk reduction, air monitoring or the postponement of

risk reduction are necessary. The total cost of air monitoring ranges from approximately $46,000 to

$60,000 depending on the level of risk assessment used. The level of work needed to review an ambient

monitoring plan does not depend on the complexity of the source so a sliding scale is not necessary.



Comment Category #160: Fees - Object to fees for TBACT review

Description: Commenter objects to the excessive and unreasonable fees of $6,000 per TEU associated

with TBACT determinations. The rules are not clear about whether if a source has to perform an annual

update of TBACT it will be charged the full $6,000 per TEU. It is also excessive to impose this charge on a

"per TEU" basis when a typical source would likely have ten or more TEUs. In the major New Source

Review program, the Department does not charge fees equal to anything near that amount.

DEQ increased the fee by now stating that it is $3,000 per TEU and type of toxic air contaminant. This

means that an emission unit that emits 4 or 5 types of toxics (e.g., volatiles, acid gases, metals, and

dioxins) could face a fee of $12,000 per TEU. This fee is excessive. Where a source needs to submit

annual reviews per proposed OAR 340-245-0140(4)(a), it would face that same $12,000 fee (per TEU)

annually even though little effort was required by DEQ.

We request that the fee table in OAR 340-216-8030 be revised to reflect that the TBACT fee is not

duplicated where there are similar TEUs being assessed.

Response: A TBACT determination is only required if a source exceeds the TBACT Risk Action Level and is

required to install TBACT on all significant Toxics Emissions Units. If a source can reduce toxic air

contaminant emissions and comply with the TBACT Risk Action Level, TBACT is not necessary. In order to

make a TBACT determination, DEQ must research all similar TEUs across the nation and see what types

of controls are required. Since there is no TBACT clearinghouse, like there is for Best Available Control

Technology for criteria pollutants, DEQ will be required to call state and local agencies to see what they

require for TBACT for toxic air contaminants.


Item G 001299


DEQ will also verify that an owner or operator installed TBACT and is achieving the desired results.

Gathering this information could take days. But DEQ recognizes that in many cases, TBACT for toxic air

contaminants may be the same as BACT for criteria pollutants, making the determination easier, and

therefore, less costly. DEQ has changed the proposed TBACT determination fee from $6,000 to $3,000.

In addition, DEQ has clarified that if multiple TEUs are similar and require the same pollution control

device, one TBACT fee may be charged. If a Toxics Emissions Unit emits different types of toxic air

contaminants, DEQ must do a TBACT determination for each type of toxic air contaminant because a

control device that reduces volatile organic compounds will not reduce metals or acid gases,

necessitating the need for a separate fee.

The proposed rules clearly state that the TBACT/TLAER Review Fee is for DEQ's review and approval of

the TBACT analysis, not for review of TBACT annual report. In addition, the fee rules in division 245

clearly state that the TBACT fee is not duplicated where there are similar TEUs being assessed so the fee

table in OAR 340-216-8030 does not need to be revised.




Comment Category #161: Fees - other funding mechanisms

Description: Seek other funding sources from new programs like cap and trade, or from the VW

settlement.

Response: Through Senate Bill 1541 the legislature authorized full funding of the Cleaner Air Oregon

Program through permitting fees. There currently is no cap and trade program in Oregon. Volkswagen

settlement money (the Environmental Mitigation Fund) is only available to support a defined list of

projects that offset the excess air pollution created by VW's cars.




Comment Category #162: Fees - provide updated table

Description: DEQ should provide an updated fee table (OAR 340-216-8030 Table 3) for public review and

comment. The fee table, which is referenced through OAR 340-245-0080, Source Risk Assessment was

not provided in the proposed rulemaking.


Item G 001300


Response: The ‘OAR 340-216-8030 Table 3’ fee table was included in the proposed changes to the

existing rules since all of the current Air Contaminant Discharge Permit fees are within the existing

division 216. DEQ posted the fee table on the website at the same time it posted Proposed Division 245

rules.

DEQ has updated the fee table based on new thinking about submittal of the risk assessment in pieces

that need DEQ approval before the owner or operator submits the next piece. DEQ must approve the

first submittal, the emissions inventory (using emission factors that can include source test data), before

the modeling protocol is submitted. After receiving approval of the emissions inventory, the owner or

operator must submit the modeling protocol for approval. Depending on the level of risk assessment

being submitted, the next piece is the Level 1 or Level 2 Risk Assessment or the work plan for the Level 3

or 4 Risk Assessment. After DEQ approves the work plan, the owner or operator must submit the Level 3

or 4 Risk Assessment. If risk reduction is required, the last submittal is the Risk Reductions Plan.

DEQ changed the proposed fees to reflect submittal of the risk assessment in pieces that need DEQ

approval before the owner or operator submits the next piece.




Comment Category #163: Fees - reduce annual fees for de minimis sources and

reassess fees periodically

Description: The proposed CAO annual fee for permitted sources in OAR 340-216-8020 Table 2 Part 3 is

based only on the type of permit held. As risk assessments are performed over time, it would be

equitable to reduce the annual fees for exempt and de minimis sources since they will demand less of

DEQ's resources for management of their permits. DEQ should revise the CAO Annual Fees so that

exempt and de minimis sources pay a reduced annual fee.

OAR 340-245-0400(3) requires the owner/operator of a source that must perform a risk assessment to

pay the "existing source call-in fee," which is found in OAR 340-216-8030, Table 3, CAO Specific Activity

Fees. The commenter acknowledges the need to fund the CAO program through permittee fees, there is

no justification given in the public notice documents for the level of the activity fees proposed. The fees

were apparently based on a five-year planning horizon, during which the highest risk sources would be

called in for risk assessments requiring more DEQ staff time. Presumably, as sources with lower risk

(exempt, de minimis and not those requiring Risk Reduction Plans) are called in, demands on DEQ will

decrease and more sources will be reviewed in a given year. DEQ should review the fees periodically to

determine whether the fee levels should be adjusted to reflect DEQ's actual needs.


Item G 001301


Response: The proposed annual fees based on the type of permit held are set in SB 1541. There is no

provision for de minimis source fees in SB 1541. As stated in another response, DEQ will perform the

Level 1 Risk Assessment for all permitted sources in order to categorize them for call-in. If a source

screens out based on DEQ's Level 1 Risk Assessment by being either a de minimis source or a source

with potential risk less than the Community Engagement Level, DEQ is not planning to call those sources

into the program at this time. DEQ will work with these sources and write a memo to the file as allowed

under OAR 340-245-0050(6) and (7). DEQ will review the fees periodically to determine whether any

adjustments should be made to reflect DEQ's actual needs, as DEQ does with all its air quality permitting

programs.




Comment Category #164: Fees - simplify fees to encourage more accurate risk

assessments

Description: SB 1541 created a framework for fees that funded CAO. However, in the latest proposed

CAO draft rules there are numerous “activities fees” that go beyond base fees and emission fees. The

structure leaves the costs confusing and potentially open ended. The Fee Structure should be fair, easy

to follow and not discourage efforts to clarify emission rates and risk. The commenter requests that DEQ

evaluate their activity fees to simplify in a way that is easy to understand costs for budgeting and does

not discourage industries and businesses from pursuing better risk assessments, monitoring plans,

better data, etc.

Response: SB 1541 specifically states:

"(1) The fee schedules authorized under ORS 468.065 (2) for permits described in subsection (2) of this

section may include fees that are reasonably calculated to cover the direct and indirect costs of the

Department of Environmental Quality and the Environmental Quality Commission in developing and

implementing, under sections 2 to 7 of this 2018 Act, a program and rules described in section 3 of this

2018 Act or a pilot program described in section 4 of this 2018 Act.

(2) The fees authorized by subsection (1) of this section shall:

(a) Apply for any class of air contamination sources classified pursuant to ORS 468A.050 for which a

person is required to obtain a permit under ORS 468A.040 or 468A.155 or is subject to the federal

operating permit program pursuant to ORS 468A.310; and

(b) Be in addition to, and not in lieu of, any other fee required under ORS 468.065 or 468A.315."


Item G 001302


DEQ established specific activity fees, as supported by the Rules Advisory Committee, in order to avoid

having higher base fees for all currently permitted sources. Without specific activity fees, the Cleaner Air

Oregon program would be fully paid for by base fees and emission fees. It is not fair to require smaller,

less complex businesses to pay for review of submittals for larger businesses that may be required to

submit very complex risk assessments. Smaller businesses may only have to pay the base fee because

they may not be required to do a risk assessment if their potential risk is very low. In addition, DEQ

established lower specific activity fees for businesses on General or Basic permits. There may be cases

where a source with a general permit poses potentially high risk but this will probably be the exception.

DEQ does not feel the specific activity fee schedule discourages accurate risk assessments based on the

most accurate emissions inventory but allows for less complex sources to pay lower fees.

In OAR 340-216-8030 Table 3, the Specific Activity Fee Table contains different fees for Title V, Standard,

Simple and Basic/General permittees because of the difference in complexity of these source categories

and the work needed to review these submittals. Most of the fees are the same for Title V sources and

ACDP sources but the fees for the more complex levels of risk assessment are different based on the

estimated hours needed to review the applications and draft the permits. The proposed rules also

contain a sliding scale fee based on the level of risk assessment, Levels 1 through 4. If the outcome of

the risk assessment shows that potential risk is above Risk Action Levels, then a Risk Reduction Plan is

required. More work is required to review those types of applications that include community

engagement, pollution prevention or control, or inability to pay. DEQ will change the fee for the Risk

Reduction Plan to separate out the risk assessment review because sources may want approval of their

risk assessment before determining how much their risk needs to be reduced. DEQ has changed the

proposed rules to eliminate the TBACT Plan and made the TBACT requirement part of the Risk Reduction

Plan, which is the overarching plan to reduce risk.




Comment Category #165: Fees - Source test fees and de minimis source fees are

too high

Description: The source test fees should not be duplicative if a source conducts more than one source

test. Fees for determining if a source is de minimis are too high.

Response: The proposed Cleaner Air Oregon fee rules in OAR 340-245-0400 clearly state that the

complex source test fee of $6,000 is for multiple TEUs and multiple toxic air contaminant source test

methods. The moderate source test review fee is for a single TEU and multiple toxic air contaminant test

methods. The simple source test review fee is for a single TEU and a single toxic air contaminant test

method. If a source conducts multiple complex source tests, then those tests would be covered under

the complex source test fee to review multiple toxic air contaminant source test methods.


Item G 001303


If a source demonstrates that they are a de minimis source, they can use any of the levels of risk

assessment, Levels 1 through 4. The fees for these levels of risk assessment are based on the amount of

work needed to review each type of risk assessment. Review of a Level 4 Risk Assessment to

demonstrate a source is de minimis is high because it includes reviewing an emissions inventory, a

modeling plan, complex modeling, a risk assessment work plan and the risk assessment. The fees for de

minimis sources are less than fees for sources that are not de minimis because de minimis sources do

not require a permit addendum.




Comment Category #166: Fiscal impact - If CAO is not fully funded, negative

health impacts will impact state's economy

Description: The Economic Impact Statement should support this finding that if Clean Air Oregon is not

fully implemented and managed economically,it would allow negative long term health and safety

impacts to the working class that support Oregon’s economy. Commenters urge DEQ to give deep and

thoughtful consideration to these benefits for improved health outcomes for all Oregonians, including

but not limited to lower health care costs, lower asthma rates, and lessened cancer risks.

Response: Through Senate Bill 1541, the legislature fully funded the Cleaner Air Oregon Program

through fees on permitted facilities.

In the fiscal impact statement, DEQ has provided information about potential health benefits of Cleaner

Air Oregon.




Comment Category #167: Fiscal impacts - agency failed to mitigate fiscal impact

on small business

Description: The commenter believes these rules will have a very adverse impact on small businesses.

The agency fails to account for and mitigate those impacts in the current rulemaking process, including

high/unaffordable fees, cost of emissions inventory, modeling, and potential monitoring. Business

should spend money on reductions not analysis. Streamline and simplify rules to decrease small

business burdens of assessment and focus spending on controls. The DEQ has an opportunity to correct


Item G 001304


this and identify the adverse impacts that this will have on businesses and communities across the state,

and work to mitigate those impacts.

Response: DEQ acknowledges that the proposed rules could have an impact on small businesses,

although the extent of that impact is unknown because it depends on future analysis of source

emissions and risk, and any required emission controls.

DEQ proposed several measures to lower cost, streamline procedural requirements, and provide

flexibility for small business. DEQ proposed measures in response to comments received in both the first

and second comment periods, and in response to input during two fiscal advisory committee meetings.

Small business fiscal impact mitigation measures in the draft rules include the following:

• Sources on General and Basic Air Contaminant Discharge Permits (approximately 2,200

sources, including gas stations and dry cleaners) are not required to do an emissions

inventory, as was required by all other permitted sources. DEQ will do the emissions

inventory for these sources. Only sources on General and Basic Air Contaminant Discharge

Permits that do material balance (less than 75 sources) are required to do their own

emissions inventories.

• New sources on General and Basic Air Contaminant Discharge Permits (approximately 2,200

sources, including gas stations and dry cleaners) would not be required to perform risk

assessments.

• Cleaner Air Oregon base fees are a percentage of existing permit base fees. Facilities with

few emissions units are on General or Basic Air Contaminant Discharge Permits, with lower

base fees so their CAO base fee is also low.

• Sources on General and Basic Air Contaminant Discharge Permits (approximately 2,200

sources, including gas stations and dry cleaners) are not required to perform Level 1 risk

assessments. DEQ would do that work. If DEQ determines that risk from sources with these

permit types may be above de minimis levels, DEQ would call them into the program.

• Given the lower potential for higher risk emissions, smaller businesses are likely to be called-

in sometime after the potentially higher risk facilities, delaying regulatory costs for some

smaller businesses. These businesses will be able to use screening tools to determine

whether they could undertake emission reductions or process changes to avoid more costly

assessment measures like modeling or monitoring.

• Fiscal impacts to businesses, including small businesses, generally decreased between the

2017 and 2018 draft regulations because risk action levels became less stringent or allowed

more risk as required by SB 1541.

• The SB 1541 requirement that sources, including small businesses, complying with federal

NESHAPs would presumptively meet TBACT requirements would be expected to further

limit Cleaner Air Oregon fiscal impacts for many sources.

• Sources that are de minimis or exempt would not need to take action under Cleaner Air

Oregon.

• To the extent that small businesses pose low risk, the proposed changes to source

permitting and TEU deminimis levels will further mitigate impacts on small business by

lessening the burdens associated with permitting.

• The proposed change to the significant TEU level would reduce the burden on businesses

that exceed the TBACT or TLAER levels, by ensuring that they don’t have to conduct


Item G 001305


TBACT/TLAER analyses or install TBACT/TLAER on TEUs that only pose a very small part of

their total risk.

• Sources can delay or postpone risk reduction based on financial hardship.

• Air monitoring, which can be very expensive, is optional. No source is required to do air

monitoring.

• The program will include a technical assistance staff person to help sources explore and

analyze emission reduction options if they are required.




Comment Category #168: Fiscal impacts - Sufficiency of fiscal impact statement

Description:

Response: DEQ used EPA Air Pollution Control Technology Fact Sheets to estimate ranges of costs for

pollution control equipment that facilities may need to install if required to control toxic air contaminant

emissions under CAO. DEQ contacted several pollution control equipment suppliers but they were not

able to provide more detailed cost estimates without site-specific data (i.e., toxic air contaminant

emitted, exhaust airflow and temperature, and space availability). Throughout the rulemaking process,

DEQ also requested specific information on fiscal impacts from regulated sources who have cost

information for relevant to the proposed rules. During the two fiscal impact review processes and public

comment periods, DEQ received a limited amount of information from committee members and

commenters on costs of purchasing, installing and operating specific pollution control equipment. DEQ

incorporated those estimates, after verification, in the fiscal impact statement.

In November 2016, DEQ sent a request to permitted facilities that may be subject to Cleaner Air Oregon

rules to report on their toxic air contaminant emissions. Facilities have submitted emissions data and

DEQ worked with facilities to check the quality of their information. While this level of emissions

inventory is sufficient to begin the prioritization and call-in process, the more detailed data and analysis

necessary to calculate a facility’s risk is not available yet. Each affected facility will need to go through

the proposed risk screening and assessment process to gain accurate knowledge about risk posed and

regulatory requirements.

Some businesses will not be called-in to demonstrate compliance and will experience little fiscal impact,

some will “screen out” at more simple assessment levels and will experience relatively low fiscal impact,

while others will be required to implement more complex and costly steps to assess and reduce risk

from their toxic air contaminant emissions. Without a facility proceeding through the full steps of risk

screening and assessment, it is not possible to predict with accuracy how much a particular business

would have to spend to comply with risk reduction requirements, or how much benefit from reduction

of associated toxic air contaminant risk could occur for people living nearby.


Item G 001306


Because of the high level of uncertainty about who will be affected and how, the fiscal analysis

addresses potential ranges of impacts for business, government and the public, rather than develop

speculative scenarios for hypothetical facilities or for each of the approximately 2,700 facilities that

could be affected by Cleaner Air Oregon rules. Generating scenarios for each potentially affected facility

would have required additional research and modeling work for which resources were not available.

MFA Cost of Compliance Calculations

Included in public comments DEQ received was a cost benefit analysis performed by Maul Foster Alongi

on behalf of Oregonians for Fair Air Regulations, a business interest group. The MFA analysis submitted

by OFAR during the first public comment period concluded that CAO would cost facilities between $44

million and $8.4 billion over the first 20 years of the program. An updated analysis submitted during the

second public comment period concluded that CAO would cost facilities between $44 million and $34

billion over the first 20 years of the program.

DEQ reviewed MFA’s analysis, but the information submitted with the public comment was not

sufficient to fully reconstruct it. However, DEQ can comment on the assumptions that were listed.

The MFA analysis was designed to “bracket” potential CAO compliance costs between a low and high

scenario, with a medium scenario in between. The low scenario is based on an assumption that all

facilities will screen out of CAO requirements with a Level 1 risk assessment, which does appear to

represent a lower bound to what CAO compliance costs could be for facilities. DEQ analyzed the

medium and high scenarios proposed by MFA and believes that they include several factors that tend to

significantly overestimate the total costs.

MFA assumed that all facilities with air permits will be called in to CAO during the first 20 years of the

program, which would overestimate costs because DEQ will likely not call in facilities that screen out as

de minimis based on emissions inventory data.

MFA also appeared to assume that all facilities that are above the TBACT level after a Level 3 risk

assessment will proceed to Level 4, though DEQ anticipates that few facilities will have the unusual

exposure scenarios under which it would benefit them to perform a Level 4.

MFA also assumed that all facilities that proceed to Level 4 will ultimately install pollution controls. This

is likely an overestimate because many facilities above the TBACT level may qualify as having

presumptive TBACT, based on the new rule provisions brought in from SB 1541. Also, the increase in the

RALs between the first and second public comment periods should reduce the number of facilities that

will be required to install pollution controls, but did not reduce MFA’s estimate of that parameter.

Lastly, each tier of risk assessment will generally result in a lower risk value due to refined parameters

and additional considerations at each tier. So it’s very likely that some facilities who run Level 4

assessments do so in order to demonstrate that risks are below actionable levels.

MFA’s estimate of the cost of installing and operating pollution controls for CAO is also likely to be an

overestimate, particularly for their most recent submittal, because they took an average of a list that

included the very high costs associated with controls for a coal-fired power plant. That is likely to be an

overestimate because Oregon’s only coal-fired power plant is mandated by rule to close in 2020, and

Oregon statutes phasing out coal-fired power mean that new coal-fired power plants in Oregon (with

attendant high pollution control costs) are unlikely.


Item G 001307


MFA acknowledged that their analysis, “does not reflect any specific Oregon facility, and the information

available to MFA is insufficient to allow estimation of whether any specific facility will incur increased

costs or the value of those costs.” The ultimate compliance costs of the program would depend on many

factors, including facility risk assessments and TBACT analyses that are not yet complete.

MFA Health Benefits Analysis

DEQ and OHA have also reviewed the health benefits analysis prepared by MFA and submitted during

the first public comment period. Overall, the agencies conclude that multiple parameters needed to

accurately quantify potential health benefits are not yet available. For example, DEQ and OHA do not

yet know which types of chemicals are currently present at levels that may increase health risks or which

facilities will be required to reduce emissions under CAO. The agencies therefore don’t yet know which

kinds of chemical exposures and which types of health risks will be reduced or which communities will

be impacted. MFA acknowledges these limitations at the beginning of its analysis. The updated MFA

analysis submitted during the second public comment period contends that pollution reduction efforts

should be focused on other areas such as mobile source diesel emissions, but did not attempt to

quantify the potential health benefits. Mobile source diesel emissions are not in scope for this current

rulemaking effort.

MFA Analysis of the Relative Contribution of Industrial Sources to Toxic Air Contaminants

MFA estimated the portion of emissions that are from industrial sources by looking at data from DEQ’s

Portland Air Toxics Solutions model. The PATS dataset is limited to just 19 air toxics in the Portland

Metro Area. The model is not representative of risk from all of the approximately 260 air toxics

regulated by Cleaner Air Oregon across the whole state. The PATS model is not considered to be a good

predictor of industrial emissions because DEQ lacked necessary data on industrial emissions when it was

developing the model. In part, it was the inability of the PATS model to accurately predict high

concentrations of cadmium that led to additional testing of moss and air, which ultimately revealed the

regulatory gap Cleaner Air Oregon is designed to fill. In addition, one of the key conclusions of PATs was

that people’s exposure to different sources of air pollution is dependent on where they live.

Based on analysis of the PATS data for 19 chemicals, MFA estimates that 6.25% of emissions are from

industrial sources while most are from mobile sources. DEQ and OHA agree that mobile sources are an

important source of health risk. However, most of the approximately 260 industrial chemicals that

would be regulated under Cleaner Air Oregon are unlikely to be emitted by mobile sources.

Furthermore, the relative toxicity of chemicals is variable and the types of chemicals that are emitted by

industrial processes may pose specific health risks that are different from risks posed by emissions from

mobile sources. DEQ and OHA conclude that the PATS model does not contain the information that

would be needed to estimate the relative contribution of industrial and mobile sources to health risks

from toxic air contaminants across the state.

In an additional analysis provided during the second comment period, MFA makes a similar case about

the magnitude of the contribution of mobile sources to cancer risk from toxic air contaminants. MFA

cites a Washington State Department of Ecology analysis of National Air Toxics Assessment data in

Washington. The analysis from Washington State is focused on a small subset of the chemicals relevant

for CAO and is limited to cancer risk, excluding the wide range of non-cancer health risks associated with

toxic air contaminants. Importantly, NATA is designed to estimate regional health risks and it is not


Item G 001308


designed to predict potential health risks for people living near facilities. As stated in the Washington

NATA analysis “Industrial sources make up only a small percentage of risk overall; however industrial

sources may have more impact in certain neighborhoods than NATA can determine.” The goal of CAO is

to characterize and regulate emissions based on local risks to health.

MFA Estimate of Health Benefits of CAO

MFA calculated potential health benefits of Cleaner Air Oregon by multiplying total health costs of

asthma, cancer and cardiovascular disease in Oregon by the fraction attributable to environmental

factors, and multiplying that by the fraction attributable to industrial point sources of toxic air

contaminant emissions. DEQ and OHA concluded that this approach is not well supported by evidence

and excludes substantial contributors to health costs.

The attributable fractions cited in the CAO fiscal analysis are examples from the literature. They do not

match the health outcomes for which DEQ estimated total health costs and they are not designed to

predict the portion of disease attributable to the set of air toxics covered by Cleaner Air Oregon. For

example the estimate of total direct medical costs for cancer in Oregon are limited to adult cases while

the attributable fraction cited in the fiscal analysis is designed to estimate the environmental

contribution to childhood cancer. The fiscal analysis did not include estimates of the fraction of

cardiovascular disease attributable to environmental factors and it is not clear how MFA arrived at the

estimated range of 1-10%.

MFA estimates that 10% of environmentally attributable illnesses calculated based on attributable

fractions may be due to toxic air contaminants, but does not explain the basis for that assumption. MFA

further assumes that only 6.25% of toxic air contaminants in Oregon are from industrial point sources.

This assumption appears to be based on the analysis of data from the PATS model. As described above,

PATS is likely to underestimate the contribution of industrial sources because it was developed with

limited data on industrial emissions.

Toxic air contaminants are associated with a wide range of health outcomes that were not considered in

the MFA estimate of health benefits. Health outcomes that were excluded from the analysis include

neurological effects, impaired brain development, fertility problems, miscarriage, pre-term birth, birth

defects, liver disease, kidney disease, and reduced immune function.

The MFA calculation of health benefits is limited to a consideration of direct medical costs. Direct

medical costs are only a portion of the total burden of disease. Estimates of health costs in the literature

often take into account indirect costs of illness such as missed days of work and school, the costs of

unpaid caregivers, and the indirect medical costs of predisposition to future disease. Other costs include

the social costs of families experiencing stress and loss. These costs are more difficult to quantify but

important to acknowledge.

The methods MFA used in each step of its health-related calculations are not clear. DEQ and OHA

attempted to reproduce MFA’s calculations based on the information provided. The agencies were

unable to replicate MFA’s results, concluding that the analysis either excluded important information

about calculation methods or made several math errors that would further contribute to an

underestimate of estimated health benefits.


Item G 001309


DEQ and OHA believe that it is overly speculative to attempt to quantify potential health benefits of CAO

at this time. DEQ and OHA have reviewed the analysis of health benefits provided by MFA and do not

believe the conclusions and underlying calculations and assumptions are well supported by the available

evidence. In the fiscal analysis, DEQ and OHA have presented information about what is known about

potential health costs of air toxics, including known data gaps.




631, 634, 644, 765

Comment Category #169: Gardening - safety of garden vegetables

Description: The agencies should consider how air toxics can impact the safety of gardening. Agencies

should perform research to better understand how plants may be contaminated by air toxics.

Response: DEQ and OHA agree that exposure through soil and food may be an important route of

exposure for some chemicals. The extent to which toxic air contaminants may be a concern for

gardening will vary substantially across chemicals and plant species. For chemicals that are known to be

persistent in the environment, multi-pathway factors are incorporated into the RBCs proposed in

Cleaner Air Oregon to account for additional exposure that may occur through soil and homegrown

garden produce.

OHA and DEQ both work to help communities determine whether their gardens may be impacted by

contamination. DEQ has performed soil testing in some communities to help residents determine the

extent to which metals emitted to air may be present in soil. OHA, in collaboration with other agencies,

has hosted free soil shops for residents to test their soil for heavy metals. OHA uses findings from

academic research to help evaluate potential health risks from contaminated soil.

While the agencies agree that further research on chemical deposition from air and uptake from soil

would be informative, that work is beyond the scope of the Cleaner Air Oregon rules.

DEQ will not make changes to the rules in response to this comment.



Comment Category #170: General opposition - miscellaneous comments

Description:


Item G 001310


Response: The State government is the most appropriate entity to protect health from the risks of

industrial toxic air contaminant emissions beyond existing federal regulations.

In developing Cleaner Air Oregon, DEQ and OHA have analyzed other state and local risk based toxic air

contaminant permitting programs, and strive to assemble the most effective regulatory elements in a

way that is tailored to the needs and conditions of Oregon communities. Senate Bill 1541 has

established funding, standards, and procedures for a reasonably health protective, science based and

predictable Cleaner Air Oregon program.




258, 266, 277, 279, 301, 302, 307, 310, 312, 313, 333, 335, 342, 353, 376, 390, 409, 432, 495, 500, 535,

550, 556, 611, 658, 754, 765, 749, 745, 734, 748, 744, 739, 733, 671, 741, 743,

Comment Category #171: General support - miscellaneous comments

Description: General support of Cleaner Air Oregon

Response: The State government is the most appropriate entity to protect health from the risks of

industrial toxic air contaminant emissions beyond existing federal regulations.

In developing Cleaner Air Oregon, DEQ and OHA have analyzed other state and local risk based toxic air

contaminant permitting programs, and strive to assemble the most effective regulatory elements in a

way that is tailored to the needs and conditions of Oregon communities. Senate Bill 1541 has

established funding, standards, and procedures for a reasonably health protective, science based and

predictable Cleaner Air Oregon program.




840, 19, 22, 23, 25, 28, 31, 51, 75, 79, 85, 909, 90, 91, 92, 93, 94, 98, 100, 101, 102, 104, 108, 109, 111,

112, 113, 115, 117, 119, 128, 130, 133, 140, 146, 147, 148, 149, 150, 152,

Comment Category #172: Hazard quotient - values must undergo analysis for

consistency with "serious health effects" language in statute

Description: This comment category asserts that RBCs in draft rules have not been evaluated to

determine whether they are based on the air concentration "at which no serious adverse human health

effects are expected to occur" as referenced in Senate Bill 1541 as part of the definition of "Hazard


Item G 001311


Quotient." This comment category argues that noncancer RBCs could be much higher (less stringent) for

some toxic air contaminants and still be set such that "no serious adverse human health effects are

expected to occur." This comment category urges DEQ to do a full review of its noncancer RBCs to

determine which ones could be made less stringent and still meet this statutory requirement. As part of

this category of comment, Gradient, an environmental toxicology consulting firm, performed an analysis

of a subset of toxic air contaminants and their noncancer RBCs proposed in draft rules on behalf of Stoel

Rives LLP. In its analysis, Gradient highlighted examples of several toxic air contaminants for which

noncancer RBCs could be made less stringent and still meet the statutory requirement such that "no

serious adverse human health effects are expected to occur" by Gradient's criteria.

Response:

Whether a noncancer RBC is set such that it is 10-fold or 10,000-fold lower than levels at which adverse

health effects have been documented in humans, it would be equally compliant with the statutory

definition of "Hazard Quotient" in Senate Bill 1541. In either case, depending on chemical-specific

characteristics, agencies and communities in Oregon could be confident that "no serious adverse human

health effects are expected to occur" when exposed at that concentration.

All scientific studies include uncertainty, and conditions in toxicological studies rarely match exactly the

conditions in which community members in uncontrolled settings are likely to be exposed to toxic air

contaminants. In light of these uncertainties, agencies such as EPA and ATSDR set noncancer RBCs with

an ample margin of safety to account for those areas of scientific uncertainty. Senate Bill 1541 does not

specify what margin of safety should be applied between concentrations where noncancer RBCs are set

and concentrations that have been documented to cause serious adverse health effects in humans. As a

program designed explicitly to protect the public health of Oregonians from exposure to toxic air

contaminants, it is appropriate for CAO to adopt the margins of safety applied by federal agencies

responding to the same charge to protect public health in the face of scientific uncertainty.

The seriousness of a health effect is determined not only by the concentration of a toxic air contaminant

to which a community is exposed or the amount of time they are exposed, but also by the makeup of

that community. Gradient's analysis of RBCs did not address this human variability component

contributing to seriousness. Many noncancer RBCs are set based on occupational studies in which

healthy adult males are exposed. An exposure that would not cause a serious health effect in a healthy

adult male might cause a very serious health effect in a young child already suffering from asthma.

Noncancer RBCs that are set based on studies in animals are intentionally set based on "less serious"

health effects in those animals (such as the hyperplasia in nasal epithelium highlighted in some of

Gradient's examples) because there is uncertainty about how a "less serious" health effect in a healthy

adult rodent may translate into effects in a young child with asthma or an elderly person with a

respiratory or heart condition. Even an effect like mild respiratory irritation in a healthy adult could

trigger an asthma attack that results in hospitalization for a child with asthma.

In addition, the seriousness of a health effect is not defined in statute and is not well suited to scientific

definition. A health problem that one person considers serious may not be considered serious to

someone else.


Item G 001312


Noncancer RBCs currently proposed in draft rules are compliant with the definition of "Hazard Quotient"

in Senate Bill 1541 because agencies and communities in Oregon can be as confident as is possible that

at those concentrations "no serious adverse human health effects are expected to occur" in any

population.




Comment Category #173: Implementation - clarify Tier 1 process

Description: For the Tier 1 analysis, DEQ should identify in the rule how the dispersion factor will be

calculated for each stack and the source of information for the demographic data. Currently it isn’t clear

whether a single dispersion factor will be used for an entire site and if so, what distance to nearest

receptor will be used.

For the demographic data, the four parameters chosen by the DEQ are clearly calculated in EPA’s

EJSCREEN tool. Will the DEQ go direct to Census data and if so, where on the property will the center of

the circle be located for determining the 1 km radius? How will it be treated if the circle around the

facility only partially touches a Census block? Would the whole Census block be included, because

currently there are no population density numbers available. They would need to be created for each

Census block. How will % minority be determined since this is not directly reported in Census data? Will

it be total population minus Caucasian, divided by total population?

Response: The dispersion factors, based on stack height and distance to receptor, are stack specific.

However, multiple stacks may be combined in many cases following methods described in the Draft

Recommended Procedures for Conducting Toxic Air Contaminant Health Risk Assessment. The acute,

chronic noncancer, and cancer risks from the stacks, as finally configured, are additive. For example, the

risk from stack A (10 m tall and 50 m to receptor) is added to the risk from Stack B (15 m tall and 75 m to

receptor).

For demographic data, DEQ will use the American Community Survey, for which data is collected

throughout each year, and as such offers a timelier, more evolving picture of demographics than the 10-

year census. A general overview of the American Community Survey can be found here:

https://www.census.gov/programs-surveys/acs/. The ACS demographic data is provided at block-group

resolution.

DEQ will estimate the minority population using the same process as EPA EJSCREEN. The minority

population is determined by the number or percent of individuals in a block-group who list their racial

status as a race other than white alone and/or list their ethnicity as Hispanic or Latino. That is, all people

other than non-Hispanic white-alone individuals. The word “alone” in this case indicates that the person


Item G 001313


is of a single race, since multiracial individuals are tabulated in another category – a non-Hispanic

individual who is half white and half American Indian would be counted as a minority by this definition.

The DEQ will resolve the American Community Survey block-group data to Census block level using an

approach developed by EPA for EJSCREEN, which is based on Census block internal points. DEQ will

estimate the fraction of the Census block-group population that is inside the buffer by using block-level

population counts from Census 2010. These blocks provide data about where residents are at a higher

resolution than block-groups.

Each block has an internal point defined by the Census Bureau, and the entire block population is

counted as inside or outside the buffer depending on whether the block internal point is inside or

outside. This assumption typically introduces relatively little error because blocks are small relative to

the buffer, so only a small fraction of the total buffer population is in blocks that span an edge of the

buffer. Also, any blocks along the edge of a buffer whose populations are close to 0 or 100% inside the

buffer will be well represented by this assumption.




Comment Category #174: Implementation - do not include small businesses in

Tier 1

Description: Commenter asks that the DEQ does not require small businesses to be among the initial

sources that are required to undergo the rigors of the Cleaner Air Oregon rules. Small business is defined

as employing less than 500 people.

Response: All businesses that currently hold air permits are subject to Cleaner Air Oregon, regardless of

their number of employees. DEQ currently regulates businesses that emit air pollution over certain

thresholds. These businesses are small, medium and large businesses. DEQ has identified potential fiscal

impacts of proposed Cleaner Air Oregon rules on small businesses and developed mitigation measures

to minimize the impact of the regulations.

For small facilities, which are also generally small businesses, DEQ has performed the emission

inventory, will estimate risk, will provide technical assistance, and can provide extensions of time to

control emissions if justified. The higher Risk Action Levels provided in SB 1541 will cause more small

facilities to screen out or have less stringent requirements to reduce risk.

DEQ plans to call in businesses with the highest potential risk first, which would delay regulator costs for

most small facilities. If a small business exceeds any Risk Action Level, they would be required to take

appropriate action to reduce their risk, like any other business. As DEQ has experienced, the number of

employees working at a business is not a consistent indicator of potential risk. Many small facilities will


Item G 001314


have lower risks because of their size, but some emitting more toxic pollutants can pose a significant

threat to the health of people living nearby.

Oregon Revised Statute 183.310 defines small business as "a corporation, partnership, sole

proprietorship or other legal entity formed for the purpose of making a profit, which is independently

owned and operated from all other businesses and which has 50 or fewer employees."




Comment Category #175: Implementation - do not include sources subject to a

NESHAP

Description: Any sources that are subject to federal MACT standards regulating significant portions of a

facility should be deferred from the initial call-in based on the “top 80” list

Response: The 2017 draft rules proposed to prioritize sources using a formula that considers risk,

exposure, and minority and low income populations. In the 2018 draft rules, DEQ has removed the

detailed procedures for prioritizing sources for call-in as well as the limit on number of sources to call-in

during the first five years of the program. DEQ does not anticipate that it will perform a specific ranking

of sources, but instead expects to group sources into high, medium and low categories.

Under the current proposal for which facilities are brought into the program soonest, DEQ would use

the same formula including low income and percent minority. Prioritizing all existing permitted sources

using the formula is not difficult and can be done in a single spreadsheet or database. DEQ is also

proposing additional criteria including relative severity of health risks, existing facility pollution controls,

exposure distance, additional information on emissions and risk screening, any changes in emissions

that DEQ learns about that were not captured in the initial screening, and efficient allocation of DEQ

resources.

Since DEQ is considering existing facility pollution controls in determining which sources to call in first

into Cleaner Air Oregon, that analysis will include looking at sources that are subject to federal MACT

standards. If potential risk is still high from these facilities and more can be done to reduce toxic air

contaminants, DEQ will place those facilities in the high category.





Item G 001315


Comment Category #176: Implementation - do not limit and allow citizens to

petition additions to the list

Description: Do not include a maximum limitation on the number of existing sources (80) and Multi‐

Source Risk Area designations (1) performed in the first five years of the program. There is no

justification for this limitation other than to unreasonably restrict the potential pace and progress of risk

reduction and public health protections that will result from the CAO program. The number of sources

should be determined from the review of the baseline emissions inventories required by DEQ in 2017

and the best available science to do the ranking. This will target the facilities that pose the greatest risk

to public health, and bring those facilities into the program first.



detailed procedures for prioritizing sources for call in as well as the limit on number of sources to call in


of sources, but instead expects to group sources into high, medium and low categories. Under the

current proposal for which facilities are brought into the program soonest, DEQ would be using the

same formula including low income and percent minority.

Ranking all existing permitted sources using the formula is not difficult and can be done in a single

spreadsheet or database. DEQ is also considering additional criteria including relative severity of health

risks, existing facility pollution controls, exposure distance, additional information on emissions and risk

screening, any changes in emissions that DEQ learns about that were not captured in the initial

screening, and efficient allocation of DEQ resources.




509, 515, 552, 571, 625, 651, 759

Comment Category #177: Implementation - ensure complete and accurate

emissions inventory data for ranking

Description: Since the ranking process depends on emissions data, DEQ must ensure that the emissions

data submitted by facilities is accurate and complete.

Publicly Owned Treatment Works learned that there are very few published emission factors necessary

for estimating toxic emissions from treatment units. These emission factors are rated as being of

unknown or poor quality and are based on emissions modeling (published in 1987) of a hypothetical

POTW. Their applicability to modem treatment plants carries significant uncertainties. Using the


Item G 001316


published emission factors to produce estimates of air toxics emissions from treatment units at POTWs

would not result in representative, reliable information. The only alternative would be to use

sophisticated modeling to produce emission estimates, or to conduct actual measurements of

emissions, expenses that are not justified for a screening level study.

Response: DEQ agrees that accurate emissions inventory data is needed for the facility prioritization

process. It is also true that for many facilities, this is the first time they have been required to submit a

comprehensive emissions inventory for toxic air contaminants. DEQ emissions inventory staff have been

working since early 2017 to produce the most accurate emissions inventory possible, through technical

assistance to companies, identifying facilities that did not submit data or submitted incomplete data,

and checking facility data to the extent possible. However, it is also important to start the program and

start reducing toxic air contaminant risk, even if perfect emissions data is not available from all

companies.

DEQ does not plan to require facilities to submit a new inventory before facility prioritization for Cleaner

Air Oregon. Requiring a new emissions inventory before facility prioritization would pose a significant

workload on facilities and DEQ without providing DEQ with a new way to verify facility emissions.

However, facilities can submit corrected data if they have discovered an error in their previously

submitted data.

DEQ obtained emission factors for Publicly Owned Treatment Works from the South Coast Air Quality

Management District. This agency has required POTWs to perform risk assessments using these

emission factors. DEQ will share these emission factors with the commenter.




Comment Category #178: Implementation - include these companies in Tier 1

Description: Call in these companies to Cleaner Air Oregon in the first 5 years: Nike, Intel, Amerities,

ELR/ORRCO in Hayden Island.

Response: The 2017 draft rules proposed to prioritize sources using a formula that considers a Level 1

risk estimate and demographic data about the surrounding area including population and the proportion

of nearby residents who are a member of a minority group, low income, or less than 5 years old. In the

2018 draft rules, DEQ has removed the detailed procedures for prioritizing sources for call-in as well as

the limit on number of sources to call-in during the first five years of the program.

Under the current proposal for which facilities are called-in to the program soonest, DEQ would use the

same formula, but also consider additional qualitative criteria that are not part of the formula. Other

criteria for consideration include relative severity of noncancer health effects, existing facility pollution

controls, exposure distance, additional information on emissions and risk screening, any changes in


Item G 001317


emissions that DEQ learns about that were not captured in the initial screening, and efficient allocation

of DEQ resources.




Comment Category #179: Implementation - initial ranking should not use Level 1

Risk Assessment Tool

Description: DEQ intends to perform the initial ranking of sources for purposes of identifying the “List of

80” using the Level 1 Risk Assessment Tool in OAR 340-245-8060, Table 6 and assuming that the stack

height and distance to the nearest receptor are the lowest values on the table. If this understanding is

correct, we strongly urge DEQ to revise its approach. Rural sources are often hundreds, if not thousands,

of yards from the nearest building. Stacks are often significantly higher than 50 meters. Sources should

be allowed to submit stack height and exposure location distance data to the Department for use in that

screening exercise. Otherwise, a source that is far from any receptors could be pulled into the List of 80

even though it has little likelihood of causing impacts above the RALs.

Response: The dispersion factors shown in the Level 1 Lookup Table were modeled at each receptor

distance using a set of conservative emission temperatures, stack parameters, building parameters,

wind directions, and wind speeds. Therefore, the dispersion factors are the result of a very conservative

combination of these parameters, and are themselves conservative.

DEQ proposes to use the Level 1 Lookup Table to group all currently permitted sources for call-in to the

Cleaner Air Oregon program. DEQ realizes that this grouping will provide a very conservative estimate of

potential risk for all sources but the consistent application of this approach will put all sources on a level

playing field for grouping. DEQ proposes to call-in high risk sources based first on the Level 1 Lookup

Table but also plans to look at other criteria such as:

● the relative severity of the potential noncancer health effect of a toxic air contaminant emitted by a

source;

● whether or not the source has existing control devices to reduce its toxic air contaminant emissions;

● the distance from a source to its closest exposure location;

● information about background exposure from other point and non-point sources of toxic air

contaminants in the area;

● the likelihood that risk from a source may be greater or lower than estimated from the Level 1 Risk

Assessment Tool;


Item G 001318


● DEQ’s knowledge of changes in a source’s toxic air contaminant emissions not captured in the

emissions data used in the ranking equation; and

● the efficient allocation of DEQ resources.




Comment Category #180: Implementation - phase in more slowly

Description: The DEQ has indicated that the Cleaner Air Oregon program will begin with an initial group

of 80 sources, in groups of 20. Commenter feels that the program should be phased in, in smaller

groups.

DEQ should also reduce from 80 to 20 the number of facilities it intends to identify has the highest risk,

as well as establish a reasonable time frame within which it will issue permits and CAO permit

attachments.


exposure, and minority and low income populations. In the 2018 draft rules, DEQ removed the detailed

procedures for prioritizing sources for call-in as well as the limit on number of sources to call-in during

the first five years of the program. The rules DEQ proposes for EQC adoption contain requirements for

sources, not requirements for DEQ. DEQ does not anticipate that it will perform a specific ranking of

sources, but instead expects to group sources into high, medium and low categories.







resources.

Since Cleaner Air Oregon is a new program, DEQ does not know exactly how long it will take to review

Risk Assessments and issue Toxic Air Contaminant Permit Addendum. DEQ and OHA will provide

technical assistance to all sources that are called in to Cleaner Air Oregon. Some sources may need more

or less technical assistance than others.




Item G 001319



Comment Category #181: Implementation - ranking/call-in schedule for Tier 2 is

vague

Description: The process for ranking and designations of sources for Tier 2 are vague.The proposed rules

do not make it clear when all other businesses (besides the top 80 emitters) will be required to be called

into the program and perform a risk assessment. Implementation should require a complete ranking and

assessment of emissions inventory data across the state as soon as possible.

Response:

The 2017 draft rules proposed to prioritize sources using a formula that considers risk, exposure, and

minority and low income populations. In the 2018 draft rules, DEQ has removed the detailed procedures

for prioritizing sources for call-in as well as the limit on number of sources to call-in during the first five

years of the program.

DEQ does not anticipate that it will perform a specific ranking of sources, but instead expects to group

sources into high, medium and low categories. Under the current proposal for which facilities are

brought into the program soonest, DEQ would be using the same formula including low income and

percent minority. Ranking all existing permitted sources using the formula is not difficult and can be

done in a single spreadsheet or database.

DEQ is also considering additional criteria including relative severity of health risks, existing facility

pollution controls, exposure distance, additional information on emissions and risk screening, any

changes in emissions that DEQ learns about that were not captured in the initial screening, and efficient

allocation of DEQ resources.




Comment Category #182: Implementation - ranking criteria should include

economic impact of facility emissions

Description: Impacts to human welfare need to be taken into account in the ranking process, such as the

effect on home sales, neighboring businesses' work conditions, motels' business, wildlife, tourism and

agriculture.

Response: While toxic air contaminant emissions do have impacts on neighboring people and

businesses, it would be very difficult to consider that in a quantitative way as part of the CAO source


Item G 001320


prioritization process. To DEQ's knowledge, there is no standardized source of data for existing

economic impacts on communities and the environment near sources emitting toxic air contaminants.




Comment Category #183: Implementation - ranking formula should not use

percent low income or percent minority

Description: The ranking of sources for the first eighty facilities should not consider the percent low

income and percent minority.

Response: Using low income and minority population data in the overall prioritization of facilities for

Cleaner Air Oregon is an important part of DEQ's effort to address environmental justice by reducing

disproportionate impacts of toxic air contaminant risk on overburdened populations. The 2017 draft

rules proposed to prioritize sources using a formula that considers risk, exposure, and minority and low

income populations. In the 2018 draft rules, DEQ has removed the detailed procedures for prioritizing

sources for call in as well as the limit on number of sources to call in during the first five years of the

program. DEQ does not anticipate that it will perform a specific ranking of sources, but instead expects

to group sources into high, medium and low categories.

Under the current proposal, DEQ would use the same formula to prioritize sources including the number

of low income and minority in an area. Ranking all existing permitted sources using the formula is not

difficult. DEQ is also considering additional criteria including relative severity of health risks, existing

facility pollution controls, exposure distance, additional information on emissions and risk screening, any

changes in emissions that DEQ learns about that were not captured in the initial screening, and efficient

allocation of DEQ resources.




Comment Category #184: Implementation - ranking process is too onerous and

confusing, needs to be fair

Description: The process of scoring and ranking all existing permitted sources could take a significant

amount of time. The rules should be revised to include a mechanism for DEQ to prioritize a source for

notice outside of the tedious scoring and ranking process under special circumstances. Our concerns

also apply to the process for identifying and ranking potential multi-source risk areas for designation,


Item G 001321


which effectively requires DEQ to identify all potential multi-source areas in the entire state and rank

those areas before it can even begin to evaluate a single area for designation. Additionally, DEQ should

consider revising the rules to require risk assessment and CAO permitting for all other existing sources

based on the sources’ existing permit renewal cycle.

The equation for scoring facilities for Tier 1 implementation is confusing. DEQ and OHA should elaborate

on how this was determined (i.e., precedent) to improve transparency and confidence in the

prioritization of facilities. The ranked list generated by DEQ should be publicly accessible and published

on the agency’s website, including company name and address of the permitted facility.

We are asking that DEQ ensure that facilities are ranked fairly based on their realistic emissions and that

the process be transparent for those facilities affected. Facilities with extensive emissions data should

not be unfairly disadvantaged in the risk ranking process. DEQ should carefully review emissions data

submitted by all companies to ensure all facilities have provided complete emissions inventories. Only

once DEQ has carefully worked through the inventories and ensured a consistent level of detail in the

responses should DEQ begin the ranking process.

Response:

The 2017 draft rules proposed to prioritize sources using a formula that considers risk, exposure, and

minority and low income populations. In the 2018 draft rules, DEQ has removed the detailed procedures

for prioritizing sources for call-in as well as the limit on number of sources to call-in during the first five

years of the program. DEQ does not anticipate that it will perform a specific ranking of sources, but

instead expects to group sources into high, medium and low prioritized categories.

Under the current proposal for which facilities are brought into the program soonest, DEQ would be

using the same formula including low income and percent minority. Ranking all existing permitted

sources using the formula is not difficult and can be done in a single spreadsheet or database. DEQ is

also considering additional criteria including relative severity of health risks, existing facility pollution



of DEQ resources.



contamination sources.” Because Senate Bill 1541 mandates specific requirements of the pilot program,

many of the comments on the Area Multi-Source rules in the first Cleaner Air Oregon public comment

period are no longer applicable. The current draft of the Cleaner Air Oregon rules contains no reference

to Area Multi-Source risk.

Because DEQ wants to focus on sources with the highest potential risk, tying Cleaner Air Oregon to

operating permit renewals will probably not achieve that goal.

DEQ presented the prioritization equation in great detail to the Rules Advisory Committee on August 29

and 30, 2017, "Ranking Formula for Use in Tiered Implementation Approach." The presentation can be

accessed on the Advisory Committee Meeting Schedule portion of website


Item G 001322


(https://www.oregon.gov/deq/Regulations/rulemaking/Pages/Rcleanerair2017.aspx) and goes into

great detail about how the agencies developed the prioritization formula. The presentation even

includes different options the agencies considered before choosing the final facility prioritization

formula. The Rules Advisory Committee did not express concern about confusion using this formula.

DEQ is doing a thorough review of the emissions inventory data facilities submitted in 2017. DEQ is

working with sources to address "insufficient information" in their emissions inventory submissions. In

addition, DEQ will check the accuracy of source’s emissions inventory information and use the most

accurate, up-to-date information available at the time of facility prioritization.

DEQ will post the updated emissions inventories, facility prioritization and the call-in list of sources at

the same time on DEQ's website.




Comment Category #185: Implementation - regulate smaller businesses,

including unpermitted sources

Description: There is no plan in this rule to identify sources of emissions that are not currently

permitted. While it is true that Oregon has historically done nothing to regulate pollution by small and

medium sized companies, or even to determine what emissions are occurring, that doesn’t mean we

shouldn’t start.

Response: DEQ has regulated air pollution since 1951, criteria pollutants since 1970 and 187 hazardous

air pollutants since 1993 from small, medium and large businesses. The draft Cleaner Air Oregon rules

require reporting of approximately 600 toxic air contaminants and regulation of approximately 260 toxic

air contaminants with risk-based concentrations, a much more comprehensive list of pollutants than

previously regulated.

The proposed rules apply to existing sources with an operating permit and new sources that will apply

for an operating permit in the future. The proposed rules currently do not require unpermitted sources

to reduce risk, as limited by SB 1541 but do give DEQ the authority to require unpermitted sources to

submit emissions inventories and risk assessments.





Item G 001323


Comment Category #186: Implementation - require fees for Tier 2 sources and

release ranking/schedule prior to rule adoption

Description: Tier 2 should not be limited in rule by DEQ funding. The ranking should be completed and

released prior to rules being approved to provide more clarity to existing sources regarding when they

would potentially be called-in to the program. Rather than being phased in over time, the rules should

be written to encourage industry to take advantage of current favorable lending rates to re-invest in

capital equipment purchases to bring about a rapid decrease in emissions.



detailed procedures for prioritizing sources for call in as well as the limit on number of sources to call in


of sources, but instead expects to group sources into high, medium and low categories, eliminating Tier

1 and Tier 2.

Under the current proposal for which facilities are brought into the program soonest, DEQ would be

using the same formula including low income and percent minority. Ranking all existing permitted

sources using the formula is not difficult and can be done in a single spreadsheet or database. DEQ is

also considering additional criteria including relative severity of health risks, existing facility pollution



of DEQ resources.




Comment Category #187: Implementation - Sources do not know when risk

assessment must be submitted and need one year advance notice

Description: The call in process is too subjective. Human health risks are the focus of the CAO, yet the

call in process includes factors unrelated to health risks. A good example is that an application for

NSR/PSD permit, which by definition is triggered by criteria pollutants, triggers a call in under the toxics

program. DEQ has also moved the call in criteria to guidance, which is not subject to public notice-and-

comment rulemaking, is not useful and it erects a barrier to industry and public having confidence in the

process. Facilities that are competitors must be treated similarly and have confidence that they will be

called in and permitted in a manner which is predictable and transparent. This is an unlawful delegation

of authority to the agency and inconsistent with the Oregon Administrative Procedures Act.

The notice to submit a risk assessment should be one budget year in advance to facilitate efficient

capital and resource planning. Advance notice is critical for the sources the department envisions


Item G 001324


including in the CAO program in 2019. The extensive work and expenses will be made even more

burdensome if sources cannot plan.


exposure, and minority and low income populations. In the 2018 draft rules, DEQ removed the detailed

procedures for prioritizing sources for call-in as well as the limit on number of sources to call-in during

the first five years of the program. The rules DEQ proposes for EQC adoption contain requirements for

sources, not requirements for DEQ. DEQ does not anticipate that it will perform a specific ranking of

sources, but instead expects to group sources into high, medium and low categories.







resources.

DEQ presented the process for prioritization of facilities in great detail to the Rules Advisory Committee

on August 29 and 30, 2017, with the presentation "Ranking Formula for Use in Tiered Implementation

Approach." The presentation is available on the CAO Rules Advisory Committee website

(https://www.oregon.gov/deq/Regulations/rulemaking/Pages/Rcleanerair2017.aspx). The Rules

Advisory Committee did not express concern about confusion using the ranking equation.

When DEQ developed the Title V program, those rules did not include any criteria on when sources

would be called into the program. Using this same procedure for Cleaner Air Oregon is not inconsistent

with the Administrative Procedures Act. For Title V, DEQ selected sources for called-in across the DEQ

regions and across industry types to balance workload. DEQ published the call-in list shortly after the

rule adoption and plans to do the same for Cleaner Air Oregon. DEQ also plans to publish a list of

sources whose risk is below the Community Engagement Level and the Source Permit Level based on the

Level 1 Risk Assessment procedure. This will provide certainty to many sources.

Any source that triggers major source New Source Review or Type A State New Source Review

permitting under division 224 is increasing emissions by more than a significant emission rate. Some

toxic air contaminant emissions that could pose very high risk are classified as particulate matter

(significant emission rate of 15 tons per year or 30,000 pounds per year) or volatile organic compounds

(significant emission rate of 40 tons per year or 80,000 pounds per year) under the New Source Review

program.

Particulate matter includes metals such as arsenic, cadmium, hexavalent chromium, and lead, all of

which Cleaner Air Oregon considers toxic air contaminants. Volatile organic compounds include

acetaldehyde, benzene, formaldehyde, naphthalene, tetrachloroethane, and toluene, all of which

Cleaner Air Oregon considers toxic air contaminants. Even if the source triggers New Source Review for

only a single emissions unit, the risk from that emissions unit can potentially cause very high risk based

on those emission increases. DEQ would not want that emissions unit to have to be re-evaluated under


Item G 001325


Cleaner Air Oregon and potentially be required to install a different control device or maybe not even be

allowed if that emissions unit were reviewed only under the New Source Review rules.

DEQ will give sources as much notice as possible before being called-in to Cleaner Air Oregon. DEQ

extended the amount of time a source has to submit the emissions inventory from 30 days to 90 days

DEQ changed the proposed rules so that a source submits their risk assessment in pieces that need DEQ

approval before a source submits the next piece. After DEQ approves the emissions inventory, the

owner or operator must submit the modeling protocol for approval.

Depending on the level of risk assessment being submitted, the next piece is the Level 1 or Level 2 Risk

Assessment or the work plan for the Level 3 or 4 Risk Assessment. After DEQ approves the work plan,

the owner or operator must submit the Level 3 or 4 Risk Assessment. If risk reduction is required, the

last submittal is the Risk Reductions Plan. Since DEQ separates the process into individual pieces, the

owners or operators have more time to prepare submittals.




Comment Category #188: Implementation - timeline is too long

Description: The commenter believes the implementation timeline is too long. DEQ and OHA need

adequate funding to get the program up and running with enough trained personnel and equipment to

allow more facilities into the program after a shorter learning curve. Under the current proposal, a

company could be in a tier for five years. During that time, it should be able to update to compliance.

Response: SB 1541 provided certainty about implementation of Cleaner Air Oregon for DEQ and sources

by authorizing 11 new staff positions and the associated fees. DEQ removed the detailed procedures for

prioritizing sources for call-in as well as the limit on number of sources to call-in during the first five

years of the program.

The proposed fees are designed to generate the revenue necessary to support staffing resources for five

years. These fee-funded positions would supplement existing staff resources, all of which are funded by

Oregon’s general fund. DEQ cannot implement Cleaner Air Oregon as proposed in this rulemaking

without the revenue generated by the fees proposed in this rulemaking. The budget report also

authorizes a fee revenue transfer to OHA to support 2.6 positions.

DEQ will implement Cleaner Air Oregon based on the resources approved by SB 1541 and as time allows.

Implementing a new program takes time. DEQ plans to call-in as many companies as resources allow.

Companies can make changes at their facility in accordance with existing rules until they are called-in to

Cleaner Air Oregon or are issued a Toxic Air Contaminant Permit Addendum.



Item G 001326




224, 235, 259, 260, 261, 268, 300, 308, 341, 350, 351, 413, 418, 424, 506, 507, 625, 784, 759, 793, 782,

785, 787, 915, 729, 913

Comment Category #189: Implementation - unpermitted sources should not be

called in unless criteria are specified

Description: By allowing for the arbitrary call in of unpermitted sources with no guidelines regarding

when or why this might be needed, DEQ imposes an enormous uncertainty on all businesses in Oregon,

and particularly the businesses least able to sustain uncertainty, or disruption - small businesses. We

firmly believe DEQ should be able to articulate the reasons a business might need to be called in to the

program. Where there is no need to do so, it is clearly overreaching to allow it by rule.

Response: Senate Bill 1541 stated that DEQ could not require emissions reductions under Cleaner Air

Oregon for facilities that are not otherwise required to have an air permit. DEQ has changed the rules in

order to comply with SB 1541.

However, SB 1541 did not address whether an unpermitted facility could be required to take other

actions such as submitting emissions information and performing a risk assessment. The focus of CAO is

on permitted facilities, and DEQ anticipates that call-in of unpermitted sources would be rare. The

proposed rules would provide DEQ the authority to require these actions even if a facility does not

currently require an air permit. In some cases, this may reveal important information about public

health risks.

DEQ has described criteria for call-in of permitted sources in the Facility Prioritization Protocol, but has

not proposed similar criteria for unpermitted sources. Emissions information used for prioritization may

not be available for unpermitted sources until after call-in.




Comment Category #190: Land Use Concerns - account for changes in land use

patterns

Description: Requirements should be different for facilities in densely populated areas or near

vulnerable populations.


Item G 001327


Response: DEQ and OHA agree that land use plays an important role in determining who will be exposed

to emissions from a specific source. Addressing land use through Cleaner Air Oregon is a challenge given

the differences in local land use rules in different communities across the state.

The proposed rules address differences in land use and community demographics in two ways. First, the

rules propose to prioritize facilities based on a combination of potential health risks and demographic

factors including population density. This prioritization approach will allow the program to focus on the

facilities that pose the greatest risk to the greatest number of people first.

Second, risk for each facility is calculated based on land use and potential exposures to people. If a

facility is located in a residential area, health risks will be calculated based on the assumption that

children may be present in each house. If a facility is located in an industrial area that is not zoned for

housing, health risks will be calculated based on exposures for workers at nearby facilities during work

hours. In response to requirements of SB 1541, DEQ revised the draft rules to allow facilities to calculate

risk based on actual land use rather than zoning. Facilities are required to report any changes in land use

and update risk assessments appropriately.

While population density and land use patterns will inform prioritization and risk calculations, DEQ and

OHA aim to provide the same level of health protectiveness for all communities across the state. For this

reason, risk action levels are designed to be consistent for all facilities. This approach is meant to ensure

that even communities with lower density are protected to the same degree. It also helps to prevent

future scenarios where facilities that have previously been allowed to emit at a higher level eventually

find that a community has grown up around them.




Comment Category #191: Modeling - air quality dispersion modeling should be

used only for screening purposes

Description: Proposed CAO rules apply many layers of conservatism into the analysis, including adding

maximum risk from individual TEUs even if they occur at different exposure receptors.

Response: DEQ agrees there are health-protective assumptions included in the risk assessment process,

especially at the initial levels. Risk assessment Levels 1 and 2 evaluate risks from individual stacks, or

emission points (TEUs), at the nearest exposure receptor to that stack. At these analysis levels, the

maximum risks from individual stacks will occur at different receptor distances, and these are additive

even though they represent different receptor locations. This gives an intentionally conservative result.

However, at higher risk assessment levels (3 and 4), which use AERMOD, all emission points (TEUs) are

modeled together, and risk is determined at the single exposure receptor with the maximum cumulative

risk. This is true for both the annual and 24-hr averaging times, corresponding to chronic and acute risk.


Item G 001328


As a result, the cumulative risk from all TEUs is evaluated during the same 24-hr period under the same

meteorological conditions.




Comment Category #192: Modeling - air quality dispersion modeling will

overestimate concentrations and associated risk

Description: AERMOD over predicts under certain conditions, such as downwash with squat buildings,

and low wind speeds. In addition, the CAO rule is silent on the use of multiple years of meteorological

data for deriving an annual average concentration as the basis for the 70-year chronic exposure. DEQ

should explicitly state and use the average of the annual yearly concentrations for the long-term risk

calculations.

Response: Air dispersion models attempt to mimic, through mathematical approximations, the actual

dispersion of emissions as it occurs in the real world. Models, such as AERMOD, are constantly refined as

experience in their use suggests improvements in the mathematical algorithms that make up their

structure. Two examples are improvements over the years in estimating downwash and the treatment

of low wind speeds. These improvements will continue as models are refined and tested.

Dispersion models are a valuable tool, and AERMOD, as an EPA approved model, has a long regulatory

history in providing consistency across a range of emission source types as a basis for comparison of

impacts. For Cleaner Air Oregon, the goal in using AERMOD is to provide this same consistency across

different source types in evaluating risk. Models are designed to err on the side of conservatism, that is

to minimize false negatives, but this conservative framework is applied evenly as much as possible to all

sources evaluating risk in the CAO program.

The rule currently does not explicitly state the number of years of met data that must be used to predict

annual concentrations for evaluating chronic risk. It also does not address which value from the

distribution should be used. That detailed information will be included in the Draft Recommended

Procedures for Conducting Toxic Air Contaminant Health Risk Assessment.





Item G 001329


Comment Category #193: Modeling - do not use modeling for initial

demonstration of risk

Description: The rules should be revised to state that modeling is not required for those TEUs for which

a Source Risk Limit is proposed at the time that the initial assessment is performed. Modeling may be

required as part of the compliance demonstration, but that should be developed in relation to the

monitoring requirements when the Permit Attachment is issued and not as part of the initial

demonstration of risk.

Response: All of the levels of risk assessment, Levels 1 through 4, are based on modeling. Unless

ambient monitoring (which is very expensive and time consuming) is completed, modeling must be used

to estimate ambient concentrations used to assess potential risk. Modeling can be also used for

compliance demonstration but DEQ plans to use simpler methods of determining compliance in most

permits.




Comment Category #194: Modeling - generate a five-year model-ready

meteorological data set for pre-selected sites to be made available for affected

facilities

Description: All modeling must be based on 40 CFR 51, Appendix W, which requires selection and

processing of representative meteorological data that must be reviewed and approved by DEQ prior to

completing the modeling.

Commenter proposes that DEQ generate a five-year model-ready meteorological data set for pre-

selected sites to be made available for affected facilities. Each site would be predetermined to be

representative of an area (e.g., county) or alternatively, that DEQ generate a refined three-year

prognostic meteorological data set (with appropriate evaluation and quality assurance) that can be used

to extract model-ready meteorological data for a selected site.

Response: Although 40 CFR 51, Appendix W is the reference guidance for modeling in Cleaner Air

Oregon, changes in models and procedures can be approved by DEQ and incorporated in the modeling

protocol. As a result, the EPA requirements for New Source Review regulatory modeling of Criteria

Pollutants, such as the number of years of meteorological data, can be modified to suit the needs and

resources of the CAO program.

The selection and preparation of five-year sets of met data for locations across the state would be ideal,

but is beyond the resources of DEQ at this time. An initial set of met data for a single year (2011) for 20

sites in Oregon has been compiled from data that EPA processed for the initial release of the 2014 NATA


Item G 001330


modeling in 2016. Currently, this data can be used for CAO modeling if it is considered representative for

a specific analysis and if it is approved by DEQ as part of the modeling protocol.

Three-year sets of prognostic Mesoscale Model Interface data at a 12 km grid resolution is currently

available for the entire state. However, because of the relatively course resolution it may not be

representative of a local area with significant topographic relief. DEQ can provide this data to those who

wish to consider it, but its eventual use in CAO modeling would be subject to approval by DEQ.




Comment Category #195: Modeling - make any dispersion modeling studies

available to the public

Description: It is important that any dispersion modeling studies used to establish ambient air

concentrations used for permitting, screening or evaluation be made public. This would include any

lookup table, AERSCREEN or AERMOD studies. Mistakes and inaccuracies in modeling are inevitable and

are best left to independent bodies to evaluate. Independent analysis can only be done if information

used to perform studies is publicly available.

Response: DEQ changed the proposed rules so that a source submits their risk assessment in pieces that

need DEQ approval before a source submits the next piece. After DEQ approves the emissions inventory,

the owner or operator must submit the modeling protocol for approval. Depending on the level of risk

assessment being submitted, the next piece is the Level 1 or Level 2 Risk Assessment or the work plan

for the Level 3 or 4 Risk Assessment. After DEQ approves the work plan, the owner or operator must

submit the Level 3 or 4 Risk Assessment (which includes the modeling studies). If risk reduction is

required, the last submittal is the Risk Reductions Plan. DEQ will post each submittal on DEQ’s website.




Comment Category #196: Modeling - supports modeling as a means for

estimating emissions


Item G 001331


Description: For some chemicals there are no validated detection methods, making it difficult to sample

for that chemical in air. The absence of a reliable or practical detection and/or physical monitoring

capability underscores the importance of modeling as an acceptable means for estimating emissions.

Response: DEQ agrees with the commenter that modeling is needed when there is no ambient

monitoring method available for the air toxic in question.




Comment Category #197: Modeling - supports using local atmospheric

conditions and stack parameters

Description: Commenter supports the consideration of local community specifics such as local

atmospheric conditions. Look more carefully at impact. Study height of smoke stacks and how far

pollution carries.

Response: The air quality modeling will incorporate local data to the extent possible. Model inputs will

include detailed information about emission points, building dimensional information, and location of

property lines and the locations of sensitive humans. The meteorology used in the modeling will be

representative for the facility location. Other local information, such as the prevalence of stagnant air

and temperature inversions, will be used to the extent possible. The AERMOD model predicts downwind

concentrations based on the facility data and meteorology at a range of modeling receptors that capture

the effects of air dispersion downwind of the facility.




Comment Category #198: Modeling - The modeling process needs to be

corrected

Description: At complex sources, the closest offsite receptor will differ for each emission unit, with

some receptors impacted by multiple emission units. Clarify that the acute modeling analysis is based on

the assumptions that the highest daily (24-hr) emissions and the worst case meteorological dispersion

characteristics occur on the same day that a person is located at (occupies/remains) at the single highest

point of exposure.

Response:


Item G 001332


It is true that highest impacts from individual TEUs will be at different locations, but AERMOD, used in

Levels 3 and 4, models all emission points (TEUs) together and risk is determined at the single exposure

receptor nearest to the facility with the maximum cumulative risk. This is the case for both the annual

and 24-hour averaging times, corresponding to chronic and acute risk. The goal is to estimate total risk

from the facility, which may have multiple TEUs. If necessary, the contribution of a single TEU to total

cumulative risk at an exposure receptor can be calculated, but generally it is total facility risk that is

estimated.

For example, for acute risk the cumulative risk from all TEUs is evaluated during the same 24-hr period

under the same meteorological conditions. The maximum concentrations and risk are the result of

emission rates, the location and configuration of the emission source, adjacent building characteristics,

and the most conservative set of meteorological parameters for that emission source, whether for a

single year or multiple years. For acute risk and 24-hr average concentrations, it is not known if the

maximum-modeled exposure concentration occurs when a person may be present. There is no certainty

as to the behavior of people at a given location, singly or in a group, so the analysis assumes a person

could be present during times of worst-case meteorological conditions and highest modeled

concentrations.




Comment Category #199: Natural gas - Natural gas exemption does not go far

enough

Description: DEQ should completely exempt gas-fired combustion units from review and Health Risk

Assessment requirements. If not completely exempted, the exemption for gas combustion should

extend to natural gas, liquefied petroleum gas, methane (including landfill gas) propane, biogas,

synthetic natural gas and other similar gas streams. Digester gas (biogas) from Publicly Owned

Treatment Works has similar properties to natural gas and should be included in the exemption for

determining compliance with the Source Risk Action Levels. Clarify throughout the rule the applicability

of the special treatment of natural gas, and clarify that natural gas shall receive such special treatment

in the context of Multi-Source Risk Areas.

The proposed rule states that DEQ must review and approve "all calculations and determinations"

associated with natural gas and propane combustion units. If a source with predominantly gas-fired

combustion devices must submit a Level 1 Risk Assessment within 30 days of receiving notice from DEQ,

the source would not meet the 30-day deadline.

Combustion of natural gas should be expressly identified in the rule as constituting TBACT for any

combustion device.


Item G 001333


Response: DEQ has expanded the list of gases to include liquefied petroleum gas, pretreated landfill gas

and pretreated digester gas (or biogas) because these gases are similar to combustion of natural gas and

propane. EPA states in its factsheet titled U.S. EPA Landfill Methane Outreach Program and Landfill Gas

Energy, "Landfill gas (LFG) is a natural byproduct of the decomposition of organic material within

landfills, and contains about 50 percent methane (CH4) and 50 percent carbon dioxide (CO2)." Based on

this information, DEQ agrees with the commenter that digester gas (biogas) from solids digestion should

also be exempt from compliance with Risk Action Levels. DEQ has added a provision that exemption of

pretreated landfill gas and pretreated digester gas must have DEQ approval because of issues with

contaminants in these gases and the extent to which they are pretreated.

DEQ is requiring sources to estimate potential risk from the combustion of natural gas, propane,

liquefied petroleum gas, pretreated landfill gas and pretreated digester gas in order to know what this

potential risk is and then determine whether any reductions is needed. DEQ realizes that the natural gas

suppliers would be the ones to more accurately estimate toxic air contaminant emissions from gas

combustion and possibly remove metals such as arsenic from the gas stream. If potential risk from

combustion of the above listed gases is high, DEQ will consider working with gas suppliers in order to

reduce risk.

DEQ has modified the Submittal Deadlines rule that requires consecutive submittals of the emissions

inventory, modeling protocol, risk assessment protocol and risk reduction plan so sources should have

adequate time in between submittals to create these documents. DEQ also removed the Multi-Source

Risk Area rules and will be proposing these rules later.




Comment Category #200: Natural gas - Should not exempt natural gas from the

rules

Description: Exempting the risk from air toxics emitted solely from the combustion of natural gas or

propane must be stricken from the rules. Oregon has three natural gas facilities and the emissions from

these facilities affect the health of their communities. Natural gas combustion produce hazardous air

toxics such as arsenic. If a facility emits air toxics at a level which would otherwise require inclusion in

the Source Risk Action Level, the facility must appropriately account for these emissions and include

them in their Risk Reduction Plan. Natural gas and propane facilities must be regulated in the same

manner as other facilities and they must account for and reduce their risk, if needed, in the same

manner as other facilities regulated by CAO.


Item G 001334


Response: Accurately quantifying the amount of metal, including arsenic, and organic air toxics emitted

from the combustion of natural gas is difficult because of the low quality ratings of the EPA emission

factors used in the calculations. Low quality ratings mean

• that the emission factors are below average or poor because they are from a small number of

facilities,

• there may be reason to suspect that these facilities do not represent a random sample of the

industry,

• evidence of variability within the source population, or

• tests are based on an unproven or new methodology or are lacking a significant amount of

background information but the method may provide an order-of-magnitude value for the source.

Concentrations of metal and organic toxic air contaminants from natural gas combustion are very low so

performing source tests to measure emissions is very expensive due to the amount of time needed to

collect enough sample to accurately quantify emissions.

In addition, arsenic treatment systems are used at natural gas processing plants and treat the gas before

it is introduced into the pipelines that deliver gas to customers. Staff was not able to find small-scale

systems that can remove or treat arsenic at the customer’s location. It would be more effective and

efficient to require treatment of natural gas by the suppliers, not by the customers. DEQ regulates the

natural gas compressor stations, not the suppliers of natural gas.

Staff reviewed EPA’s Reasonably Available Control Technology, Best Available Control Technology,

Lowest Achievable Emission Rate (RACT/BACT/LAER) Clearinghouse, and found only one facility with a

BACT determination for arsenic. BACT was determined to be use in natural gas (presumably pipeline

quality natural gas); no add-on controls were specified. Combustion of natural gas and propane also

results in emissions of organic toxic air contaminants, such as formaldehyde. The primary means of

reducing organic toxic air contaminant formation is to utilize good combustion practices.




Comment Category #201: Outside of CAO proposed rules

Description: DEQ and OHA received many comments that are outside the scope of Cleaner Air Oregon.

For example, some of these comments included:

Continue legislation banning fossil fuels.

Do not allow backyard or field burning.

Plant more trees.


Item G 001335


Chinese air pollution is reaching the Pacific Northwest.

Could the high rates of suicide in certain states be related to pesticide poisoning or something in the air?

Regulate radiation from cell phones

Regulate pesticide/herbicide spraying for mosquitoes or in forestry operations

Response: Governor Brown initiated the Cleaner Air Oregon rulemaking to set up health risk-based rules

for industrial toxic air contaminants. While there are many other valid concerns, DEQ is not able to

address them as part of this rulemaking.




Comment Category #202: Pair EJ demographics with epidemiological studies

Description: The agencies should perform studies to gather data about the demographics (including

socio-economic and racial factors) of communities living near environmental polluters in connection

with epidemiological studies.

Response: The draft rules incorporate several elements that reflect the need to prioritize communities

that may be disproportionately impacted by pollution. The agencies agree that more research is needed

to understand how socio-economic and racial factors interact with environmental pollution to impact

health. While this type of research is beyond the scope of what our agencies can do as part of Cleaner

Air Oregon, the program will generate new data on potential exposures to toxic air contaminants that

could be useful for environmental justice and epidemiology researchers in the future.

DEQ will not makes changes to the rules in response to this comment.



Comment Category #203: Permissive language for DEQ - convert to mandatory

language

Description: Where it says DEQ may do something, it should say shall or must.

Response: In a new complex program like Cleaner Air Oregon, DEQ anticipates needing ample flexibility

and discretion that is allowed by the language "may" rather than "shall" or "must". In addition,


Item G 001336


mandating steps for DEQ could result in process defects if DEQ was not able to accomplish the steps, or

needed more flexibility than anticipated to implement the new program. The process defects could then

become barriers to program implementation.




Comment Category #204: Permit denial - DEQ may deny a permit without

explicitly providing the conditions

Description: Allowance to deny permits without defining conditions under which a permit would be

denied will create a perception that this program will become political in its implementation as opposed

to science and data based. This subjects businesses to an enormous uncertainty.

Response: For a new source, if potential risk is over 25 in a million or a hazard index of 1, DEQ will deny

a new source the Toxic Air Contaminant Permit. For an existing source, if potential risk is over 500 in a

million or a hazard index of 20, DEQ will deny a source the Toxic Air Contaminant Permit. DEQ

eliminated the Director Consultation concept in part in response to SB 1541, which provided certainty by

setting benchmarks and action thresholds, and because of public comments. There was much concern

about the uncertainty of how the consultation process would work.




Comment Category #205: Pilot program - should be expanded and include

reductions from non-industrial risk

Description: The pilot program to address area multi-source risk should be expanded and should include

reductions that factor in non-industrial risk.

Response: SB 1541 limits DEQ authority to regulate multiple source impacts to one area in the state.

Under pre-existing toxic air contaminant regulations, DEQ has authority to assess and seek risk

reductions commensurate with source category contributions in geographic areas throughout the state.

Senate Bill 1541 limits the applicability of Cleaner Air Oregon to "reducing public health risks from

emissions of toxic air contaminants from individual stationary industrial and commercial air

contamination sources.” This limitation prevents DEQ from factoring in risk from nearby non-industrial

emissions of toxic air contaminants such as vehicle engines.


Item G 001337





Comment Category #206: Pollution prevention - expand TUR program to include

air toxics

Description: DEQ should fund and expand/use their Hazardous Waste Toxics Use Reduction program to

address air toxics and promote the use of less toxic materials that will not cause air toxics risk

downstream.

Response: DEQ is currently evaluating the Toxics Use and Hazardous Waste Reduction Act. DEQ will

consider this comment during future phases of evaluation.




Comment Category #207: Pollution prevention - how will DEQ know what is less

hazardous or good work practices?

Description: How will facilities determine what materials are less hazardous to use as substitutes for

hazardous materials and monitor for them? If DEQ includes substitution in its regulation, then it must

understand potential shortcomings of this alternative and have some control over it, otherwise we could

end up with a worse problem. How will DEQ work with OR OSHA to ensure that changes in work

practices will not cause increased risks to employees?

Response: DEQ recognizes the potential for facility owners or operators to replace a chemical that can

pose toxic hazards when emitted to air with a less well known and studied chemical that has similar

hazard characteristics. The replacement chemical could also have different, but equally significant,

hazard characteristics. Given this concern, DEQ developed Recommended Procedures for Pollution

Prevention that were included as an addendum to the Cleaner Air Oregon rulemaking package.

These procedures include specific elements of a chemical alternatives assessment. The procedures

outline the criteria for determining whether a chemical substitute, or non-chemical alternative, will

achieve an overall reduction in hazards compared with the chemical a source is seeking to replace. The

Pollution Prevention procedures document also includes references to established screening and

evaluation tools that sources can use to ensure the alternatives selected are demonstrably less

hazardous.

An evaluation of pollution prevention measures that may reduce or eliminate toxic air contaminants

must be included in a Risk Reduction Plan for sources whose risk is greater than or equal to the TBACT


Item G 001338


Level before any additional risk reduction measures are included. In reviewing that plan, DEQ will assess

the owner/operator’s evaluation of Pollution Prevention Measures to ensure it was sufficiently

comprehensive and consistent with the procedures document referenced above.

In addition, the proposed rules require that a TBACT determination for a TEU include an evaluation and

consideration of pollution prevention alternatives. A source submits these TBACT determinations

submitted to DEQ for review and approval. For case-by-case TBACT determinations, the rules describe

specific components of the required analysis of pollution prevention measures, including the evaluation

of the hazard characteristics of chemical input alternatives. DEQ will review that analysis to ensure that

it is consistent with the rule language and the Pollution Prevention Procedures document.

For chemical substitutes identified as viable by the owner/operator, DEQ will evaluate whether the

chemical hazard assessment criteria and steps described in the procedures document are followed.

Chemical hazard assessment also includes exposure assessment, which is relevant to both public and

worker protection. In general, alternatives that will lower risk to the public, will also lower risk to

workers.




Comment Category #208: Pollution Prevention - "may reduce" should be

replaced

Description: It is unfair and burdensome to require a source to evaluate all pollution prevention

measures “that may reduce” [toxic emissions]. "Probable”/“likely” are concepts that can be

implemented; “may” is not.




Comment Category #209: Pollution Prevention - proposed pollution prevention

measures are excessive

Description: Businesses frequently have process information that is confidential in nature developed by

process engineers that are very skilled at process design. The pollution prevention requirements in the


Item G 001339


proposed rules are excessive, should be more flexible, and should not impose process redesign

requirements on a facility.

Response: The pollution prevention requirements of the draft rules do not require facilities to redesign

processes or implement any specific pollution prevention measures. Rather, they require, in some

instances, facilities to conduct pollution prevention assessments that include certain elements. The

conclusions and outcomes of these assessments are not prescribed by the rules.

A facility has the flexibility to select the pollution prevention measures, if any, it deems appropriate to

achieve required levels of risk reduction, based on the assessment it completes. Submittals of Risk

Reduction Plans to DEQ can omit confidential business information associated with industrial processes

that sources may describe as part of a pollution assessment. The detailed assessment information

generated by the facility that could include confidential business information will remain at the facility,

and is not required to be shared publicly.




Comment Category #210: Pollution prevention - support requirement

Description: Commenter supports pollution prevention requirements in Cleaner Air Oregon

Response: DEQ agrees with the commenter but a rule change was not needed in response to this

comment.



Comment Category #211: Postponement of Risk Reduction - clarify how long

postponement would be allowed

Description: DEQ should clarify how long a postponement or continuation of risk reductions would be

allowed.

Response: DEQ has changed the proposed rules to allow postponement of risk for one five-year period.

After that five-year period, the owner or operator of the source must reduce risk in accordance with the

Risk Reduction Plan rules. Sources cannot ask for an extension on postponement of risk reduction.



Item G 001340




Comment Category #212: Postponement of Risk Reduction - do not allow

Description: The waiver allows businesses to continue to create more health risks if local politicians

support their exemptions and the DEQ director approves it.

Response: In specific cases where businesses could experience harmful financial impacts, proposed

Cleaner Air Oregon regulations have provisions that would allow for more time to comply or other types

of regulatory flexibility. DEQ and OHA heard from participants in the Cleaner Air Oregon process that

there could be communities whose economic health could be radically affected by CAO risk reduction

requirements. While DEQ and OHA prioritize protection of public health, the agencies recognize that

local economy is one of the social determinants of health and that in some cases severe damage to local

economic health could result in damage to human health and welfare. A holistic approach to community

health and welfare requires an opportunity to consider and balance multiple factors for individual

communities.

There would be a careful consultative process involving the weighing of many factors and an

opportunity for community engagement preceding approval of postponement of risk reduction for

potential risk over 50 in a million for cancer or a noncancer hazard index above 5. DEQ expects that

requests to operate at these risk levels would be infrequent and would receive rigorous review and

discussion. A similar detailed and broad level of documentation and discussion would precede

permission to postpone risk reduction.




Comment Category #213: Postponement of Risk Reduction - do not allow for

new sources

Description: We have several concerns pertaining to postponement of risk reductions. First, under no

circumstances should postponement be available to new sources. The rules authorize DEQ to consider a

postponement request where a source demonstrates inability to pay to implement TBACT or other risk

reduction measures and weigh that inability to pay against the health risk to the surrounding

community. If a new source is unable to pay to implement all currently available TBACT and other risk

reduction measures, then the source should not be permitted. Thus, we request that DEQ revise the

rules to clearly limit the availability of postponement of risk reductions to only existing sources.


Item G 001341


Response: DEQ moved the postponement of risk reduction to its own rule and clarified that it is only

available for existing sources. If a new source wants to build in Oregon and cannot comply with the Risk

Action Levels, DEQ will not permit the new source.




Comment Category #214: Postponement of Risk Reduction - do not allow time

extensions

Description: It is unclear how the postponement provision relates to the provision allowing for

additional time extensions for implementation of a Risk Reduction or TBACT Plan. If DEQ grants initial or

continued postponement of risk reduction in an Air Toxics Permit Attachment, the source should not

later have the ability to request even more time extensions. We propose that DEQ amend the rules to

specify that after any period of postponement of risk reductions, no additional time extensions will be

authorized for implementation of risk reduction measures. Along these same lines, it is unclear from the

draft rules how long postponement will last. Is it left to the owner or operator of the source to propose

a specific timeline for postponement? We request that DEQ revise the rules to make clear that

postponement will be granted on a temporary basis, we suggest a one-year maximum.

Response: DEQ has changed the proposed rules to allow an owner or operator of an existing source to

ask for postponement of risk reduction for one five-year period without the ability to request continued

postponement. DEQ has also included a provision in the proposed Risk Reduction rules that if an owner

or operator was granted a postponement of risk reduction, they will be required to reduce risk in the

first two years after the postponement period has ended and will not be able to ask for an extension.




Comment Category #215: Postponement of Risk Reduction - include community

advocacy groups in decision making

Description: Another opportunity for community engagement may also exist with implementation of

340-245-0160, if the agency empowers a recognized community advocacy group to become a part of the

decision-making process, for or against the issuance of any exemption permit.


Item G 001342


Response: If a source asks for postponement of risk reduction, the potential risk for that source would

be more than the Community Engagement Level so that source would be required to participate in

community engagement. That community engagement would happen before DEQ places the draft

permit on public notice so the community advocacy group would be able to provide input in the

decision-making process.


.



Comment Category #216: Postponement of Risk Reduction - remedy

detrimental effects on sensitive populations rather than just consider them

Description: OAR 340-245-0230 says that DEQ will consider presence of sensitive populations and

percentile of low income, etc. when considering approval of postponement of risk reduction. The

commenter believes that, in places where “consider” is used, replace it with the sentence: Evaluate and

if you find detrimental effects (on sensitive populations, etc.), take positive steps to remedy the

situation.

Response: DEQ moved the postponement of risk reduction to its own separate rule, OAR 340-245-0160.

In the process for a requested postponement of risk reduction, DEQ has proposed that a facility must

prove inability to pay for measures that would reduce risk to Risk Action Levels. The facility must submit

financial information including tax returns and an audited financial statement. To make the

postponement decision for the facility and area affected by the higher risk, DEQ would evaluate four

factors:

1) the presence of sensitive populations,

2) the percentile of low income, minority and persons under the age of five,

3) the total population within one kilometer of the facility, and

4) the potential economic harm to the business of requiring that the identified risk reductions be made

against the burden of risk to the exposed population if the risk reductions are postponed.

The analysis of these four factors does not reveal whether detrimental effects on sensitive populations

have already occurred. This type of health analysis is not a part of the Cleaner Air Oregon regulatory

process. Cleaner Air Oregon protects sensitive populations by reducing risk from facilities whose risk is

above Risk Action Levels. The analysis of these four factors identifies potential vulnerability in sensitive

populations and contributes to the determination of a postponement of risk reduction request.



Item G 001343




Comment Category #217: Prevent cooperation between DEQ and regulated

facilities

Description: Regulations should be put in place to prevent blatant cooperation between industry and

regulatory agencies to the detriment of public health. One example is that DEQ issued permits to

operate to one of the polluters. One polluter operated for years after illegally having removed their

limited safety equipment, which was designed to protect the public from breathing their carcinogenic

exhaust with DEQ knowledge, putting the public at risk for numerous respiratory illnesses, including

cancer.

Response: Cleaner Air Oregon regulations are designed to ensure that DEQ, sources and the public have

consistent science-based knowledge about the potential health risk to the public from industrial toxic air

contaminant emissions. Prior to Cleaner Air Oregon, this type of information was undeveloped and not

uniformly available. The proposed rules would make source risk information available to the public.

When source emissions cause risk above risk action levels, DEQ would engage communities to share and

discuss source risk information and proposed emission reduction measures. DEQ anticipates that

Cleaner Air Oregon will result in a protective and predictable process by making risk information readily

accessible to the public, conducting a transparent process and requiring sources to comply with risk

action levels.




Comment Category #218: PTE or Risk Limit - clarify that PTE or risk limit to stay

below RAL does not trigger Risk Reduction Plan, etc.

Description: The proposed CAO rules allow a source to request a PTE or a risk limit to demonstrate

compliance with the applicable Source Risk Action Levels and avoid the Risk Reduction Plan process.

DEQ should clarify that requesting a PTE or risk limit for purposes of demonstrating compliance with the

applicable Source Risk Level Action does not trigger the Risk Reduction Plan requirements under OAR

340-245-0220. As currently drafted, it is not clear whether requesting a PTE or risk limits automatically

triggers the Risk Reduction Plan requirements.

Response: In OAR 340-245-0050, Source Risk Assessment, the rules state that the owner or operator of

a source must first attempt to demonstrate compliance with the applicable Source Risk Action Levels in

OAR 340-245-8010 Table 1 by performing a Risk Assessment using any of the Level 1 through 4 Risk


Item G 001344


Assessment procedures. Each of the Level 1 through 4 Risk Assessment procedures allow an owner or

operator to voluntarily accept a Potential to Emit or risk limit to demonstrate compliance. If the owner

or operator cannot demonstrate compliance with the applicable Source Risk Action Level, then the

owner or operator must comply by proposing a Risk Reduction Plan or doing air monitoring.




Comment Category #219: PTE - supports using PTE for modeling

Description: The commenter supports using the Potential to Emit of a source in the modeling and risk

assessment because it is more protective and allows room for industrial growth. This will create

regulatory certainty for industry as they plan for the future in terms of their emissions controls. It is also

a wise land use move and will allow new industry certainty when they are choosing placement of their

facility and addresses cumulative impact in a way. It will give the public reassurance. Business is growth

driven, to not plan for growth is short sighted when we think about actual emissions to potential

emissions.

Response: DEQ is requiring all sources to assess risk based on actual emissions. This information will tell

the public what the actual potential risk is from the facility. If the owner or operator chooses to be

permitted at their actual emissions level, no further modeling is required but a permit limit that further

limits emissions at actual emissions would be required.

If an owner or operator chooses to be permitted at a higher level, modeling must be done at that higher

level or Potential to Emit. DEQ anticipates that the higher level would be the PTE that is currently

allowed under the existing air quality permitting program. Sources may want to take a further limit on

their PTE if they determine the risk at potential to emit is above Risk Action Levels. In that case,

modeling would be done at the restricted PTE. Modeling at PTE could create regulatory certainty for

sources and the ability to plan for future growth. It would also tell the community what the source is

capable of emitting and what potential risk those emissions would cause.




Comment Category #220: Public Hearing Testimony - oral comments from Coos

Bay public hearing 11/16/2017


Item G 001345


Description: Transcribed oral testimony from the Coos Bay public hearing on 11/16/2017

Response:



Comment Category #221: Public Hearing Testimony - oral comments from

Corvallis public hearing 11/20/2017

Description: Transcribed oral testimony from the Corvallis public hearing

Response:




Eugene public hearing 12/7/2017

Description: Transcribed oral testimony from the Eugene public hearing

Response:



748, 744, 739, 733, 741, 747, 742, 732, 743, 751


Eugene public hearing 8/1/2018

Description: Transcribed oral testimony from the Eugene public hearing on 8/1/2018

Response:




Medford public hearing 11/15/2017


Item G 001346


Description: Transcribed oral testimony from the Medford public hearing

Response:




Pendleton public hearing 11/28/2017

Description: Transcribed oral testimony from the Pendleton public hearing

Response:




Portland public hearing 7/12/2018

Description: Transcribed oral testimony from the Portland public hearing on 7/12/2018

Response:




Portland public hearing at Convention Center 12/2/2017

Description: Transcribed oral testimony from the Portland public hearing at the Convention Center

Response:



788, 789, 790, 794, 795, 796, 778, 777, 781, 791


Portland public hearing at PCC 11/29/2017


Item G 001347


Description: Transcribed oral testimony from the Portland public hearing at PCC

Response:



Comment Category #229: Public Hearing Testimony - oral comments from Salem

public hearing 12/8/2017

Description: Transcribed oral testimony from the Salem public hearing

Response:



Comment Category #230: Public Hearing Testimony - oral comments from The

Dalles public hearing 12/14/2017

Description: Transcribed oral testimony from The Dalles public hearing

Response:



Comment Category #231: Public notice – Fewer than 10 requests for hearing in

rural areas and EJ communities

Description: The requirement of a number of community people (10) needed to engage this process is

more difficult to meet in rural areas, but may not mean the issue is insignificant.

Response: The current version of proposed rules do not trigger community engagement meetings by

requests from 10 or more people. Instead, DEQ will plan them based on risk levels and permitting

events. The first draft of Cleaner Air Oregon rules would have triggered a requirement for industry to

establish an ongoing community forum based on requests by ten or more people. DEQ deleted this

requirement from the current version of the rules because SB 5141 requires DEQ to hold all public

meetings. Sources could still voluntarily establish an ongoing community forum.

A request for a public hearing during the public notice period does require that DEQ receive written

requests from ten persons, or from an organization representing at least ten persons. In some instances,


Item G 001348


DEQ will schedule a public hearing when the notice is sent out without waiting for a request for a

hearing.




Comment Category #232: Purpose - 2030 goal is too high

Description: The long-term goal of Cleaner Air Oregon is that the risk from all existing facilities be below

100 in 1 million and hazard index of 3 by the year 2030. The commenter recommends that number be

below 25/1 million by 2030. The long-term goal of the CAO program falls short. The long-term goal(s) of

Cleaner Air Oregon should include reducing risk from all existing facilities to below the Source Risk

Action Level of 25 in 1 million and hazard index of 1 by a date certain. Setting the ultimate goal at 100 in

1 million and hazard index of 3––the third tier Risk Action Level for existing sources––accepts that

Oregonians will continue to be subject to significant risk from industrial air toxics emissions into the

foreseeable future and is inconsistent with the above-stated purposes.

There should be a goal of zero net emissions by 2050. This goal should be implemented aggressively on a

realistic trajectory to meet the goal without an assumed “cliff” of sudden action immediately prior to

the deadline. Progress towards this deadline should be immediately noticeable with a stretch goal of

meeting it by 2035.

Response: DEQ has revised its previous long-term goal of 100 and 3 by 2030 to be more protective of

public health. The current proposal sets a long-term goal as a "50% reduction in the number of existing

facilities posing either an excess cancer risk of more than 25 in a million or a Hazard Index of more than

1 by the year 2034." This goal provides an initial framework for measuring program success over the first

approximately 15 years of program implementation, and does not limit additional progress in any way.

The goal is not a regulatory program element and based on experience implementing a new complex

regulatory program. DEQ may need to revise the goal.

Since comprehensive risk assessment of Cleaner Air Oregon sources has not yet occurred, there is no

way to know how much or little risk to human health facilities currently pose statewide. As DEQ gets

more experience implementing Cleaner Air Oregon and better information about the level of risk from

sources, DEQ will better understand the achievability of the proposed long-term goal and the amount of

time it will take to reach it. There will always be some toxic air contaminant emissions from industrial

facilities and other sources such as engines and wood heating, so zero net emission goals are generally

not realistic or achievable.




Item G 001349



Comment Category #233: Purpose - 2030 long term goal is too far out

Description: CAO won’t deliver clean air until 2030, which is an unacceptable timeframe.

Response: DEQ is proposing a long-term goal to achieve a 50% reduction in the number of existing


1 by the year 2034. This goal provides an initial framework for measuring program success over the first

approximately 15 years of program implementation, and does not limit additional progress in any way.

Since DEQ has not completed analysis of emissions and risk for sources in Cleaner Air Oregon, it is

difficult to understand how much or little risk to human health facilities currently pose statewide. As

DEQ gets more experience implementing Cleaner Air Oregon and better information about the level of

toxic air contaminant risk industrial facilities pose to human health, DEQ will better understand the

achievability of the proposed long-term goal and the amount of time it will take to reach it.




Comment Category #234: Purpose - addressing gaps in federal regulations

Description: Commenters said that federal air toxics regulations are sufficient, no evidence/data shown

to support need for additional state regulation and the opposite - federal regulations are not sufficient

to protect public health, especially in a climate of federal deregulation.

Response:

Federal regulations have gaps that can result in insufficient protection of public health. Cleaner Air

Oregon is designed to address many of those gaps. Two key gaps are the lack of EPA NESHAPs

regulations from some types of industry that operate in Oregon that emit toxic air contaminants, and

the fact that EPA limits the scope of NESHAPs to 187 toxic air contaminants.

Under a federal executive order, some federal hazardous air pollution standards have been or are

proposed for deregulation (https://www.epa.gov/laws-regulations/epa-deregulatory-actions). In

addition, the scope of major source MACT applicability has been potentially drastically reduced with the

recent repeal of the "Once in Always in" EPA policy for implementation of the Clean Air Act. This change

in policy would allow sources that were once considered major sources (and have reduced emissions so

they are no longer major sources) to be exempt from MACT applicability and requirements. These

actions could severely impact the scope and protectiveness of some NESHAP standards for facilities in

Oregon.


Item G 001350





Comment Category #235: Purpose - CAO should include all emissions

(background too)

Description: The commenters request the agencies amend the draft rules to account for background

sources of air toxics. We firmly believe that, in order for Oregon’s air toxics program to actually be

protective of public health, the rules must take into account cumulative risk from multiple pollutants

and facilities as well as background sources.

Response: Senate Bill 1541 limits the applicability of Cleaner Air Oregon to "reducing public health risks

from emissions of toxic air contaminants from individual stationary industrial and commercial air

contamination sources." This limitation prevents DEQ from factoring in risk from nearby non-industrial

emissions of toxic air contaminants such as vehicle engines, which are considered mobile sources.

Senate Bill 1541 does allow that the choice of a multi-source area for the pilot program can be based,

among other factors, on the "degree to which the level of excess lifetime cancer risk in the area from all

sources of toxics air contaminants exceeds the statewide mean excess lifetime cancer risk from all

sources of toxic air contaminants." When DEQ begins developing the area multi-source pilot program,

there can be consideration of how to factor in risk from non-industrial emissions as a pilot location

selection factor.

The emission inventory and risk assessment for Cleaner Air Oregon sources include stationary sources of

diesel emissions located within facilities, provided they are not de minimis or categorically exempt. For

example, toxic air contaminant emissions from larger diesel boilers and diesel backup generators must

be included in risk assessments.

For the last 15 years, DEQ has categorized emissions from diesel engines as a significant threat to public

health in Oregon. DEQ has been working on various approaches including incentives, working with

government and industry partners, and development of regulatory approaches. DEQ and OHA are

concerned about risk from all sources of air pollution, and DEQ has been taking steps to address health

risk from non-industrial sources of toxic air contaminants such as engines and wood burning. The

solutions to these problems are complementary to Cleaner Air Oregon objectives.

DEQ is currently undertaking a non-road inventory and a diesel-monitoring project to better understand,

quantify and define public health effects from diesel exhaust.

DEQ will put the toxic air contaminant emissions inventories and all other submittals for Cleaner Air

Oregon on DEQ's website. People may find out the potential risk from other sources of hazardous air

pollutants (HAPs) using the results of the 2014 National Air Toxics Assessment (NATA). NATA is a


Item G 001351


screening tool prepared by EPA that provides estimates of exposures and risks related to 180 of the 187

HAPs listed under the Clean Air Act, as well as diesel particulate matter (PM). NATA results are available

at the US Census tract level, and are found here: https://www.epa.gov/national-air-toxics-assessment

The risks analyzed as part of NATA include both cancer and non-cancer health effects based on chronic

exposure from outdoor sources of the listed pollutants and the non-cancer health effects related to

diesel PM. NATA is developed by entering the data from the National Emission Inventory (NEI) into

inhalation exposure and risk models. Since the NEI includes emissions estimates from nonpoint (area),

non-road, event (wildfires and prescribed burning), on-road, background and biogenic (vegetation)

sources, NATA provides potential risk for all of these source categories. State and local air quality

agencies participated in the development of NATA by reviewing and providing information for the

inventory and the modeled results. For talking points for states (prepared by EPA), click here:

http://www.4cleanair.org/sites/default/files/Documents/NATA_Key_Talking_Points_8-20-

18_Version_for_States.pdf




266, 300, 315, 341, 350, 351, 376, 402, 488, 491, 509, 515, 517, 552, 564, 567, 637, 654, 661, 772, 768,

798, 682, 764, 694, 678, 701, 677, 690, 793, 771, 698, 683, 779, 795, 693, 800, 66

Comment Category #236: Purpose - DEQ and OHA should develop performance

metrics and milestones for Cleaner Air Oregon

Description: DEQ should provide more information in the annual reports to the EQC: permits approved;

spatial maps of modeled risk levels showing changes over time; percentage of reductions of specific

toxins being emitted by regulated facilities; or the percentage reduction in risk to populations living near

regulated facilities, summary statistics on emission inventory changes to better understand long‐term

reductions in toxics. In addition, the report should include new and ongoing Conditional Risk Level

permits that have been issued; the rationale for why the permit was issued, corrective actions the

facility has or will complete to reduce public health risk, and an estimated timeline for bringing the each

facility below the applicable risk action level.

This report should also include public health monitoring conducted by OHA. Currently there is no

evaluation plan to measure or monitor public health impacts. Lack of data on public health baselines and

air toxics emission effects also means economic impacts of health improvement cannot be quantified in

the fiscal impact statement. The development of a public health monitoring and evaluation plan should

be prioritized and not wait until rules are complete.

Identifying the elements that are working successfully or not, and the elements that can be changed

through rule making will be critical in the first years of implementation.


Item G 001352


Response: DEQ plans to report results and progress updates to the Environmental Quality Commission

at years two and five after rule adoption. The proposed regulations contain the longer-term goal of

achieving a 50% reduction in the number of existing facilities posing either an excess cancer risk of more

than 25 in a million or a Hazard Index of more than 1 by the year 2034. Senate Bill 1541 requires that

DEQ report to the interim committees of the Legislative Assembly related to the environment no later

than September 15, 2026 on the costs and benefits of regulating existing air contamination sources

based on the cancer and noncancer risk levels. DEQ and OHA are currently working to identify data to

track for program evaluation and are considering metrics and milestones.

DEQ has removed annual reporting requirements to EQC from the rules. Even though these

requirements are not in the rules, DEQ will provide regular reports to EQC regarding the implementation

of Cleaner Air Oregon. The EQC has expressed great interest in Cleaner Air Oregon and DEQ has updated

them on progress at every EQC meeting since work began. DEQ will report the information included in

the first draft of the rules to EQC:

The number of risk assessments performed and the results of those assessments, including:

• The number of sources whose risk is below Risk Action Levels; and

• The number of sources whose risk is above Risk Action Levels, the actions taken, such as

requesting a Risk Reduction Plan and the risk reductions achieved;

• The number of sources that performed Risk Assessments prior to being notified by DEQ that

they must perform a Risk Assessment; and

• To the extent possible, the number of sources that reduced risk prior to being notified by DEQ to

conduct a Source Risk Assessment.

In addition to this information, DEQ estimates that the majority of the initial facilities called in to Cleaner

Air Oregon will be required to do some type of modeling. This modeling can be overlaid on a map to

show modeled risk levels and which permit attachments have been approved.

Commenters requested reporting on Conditional Risk Level permits. This permit type has been removed

from the rules (see comment response regarding Conditional Risk Levels) and will therefore not be

included in updates to EQC.

Commenters suggest that DEQ and OHA engage in long-term tracking and mapping of changes in

emissions, health risks, and health outcomes over time. The agencies agree that there is an important

opportunity to document such changes as DEQ implements Cleaner Air Oregon. The agencies are

currently exploring potential data sources, metrics, and analysis methods for tracking changes in

emissions, exposure, health risks and health outcomes across in specific communities and across the

state.

DEQ agrees with the commenters but a rule change was not needed in response to this comment.




Item G 001353


Comment Category #237: Purpose- DEQ should limit the influence of industry

lobbyists

Description: Commenters feel that industry has had excessive influence on Legislation or rulemaking for

Cleaner Air Oregon.

Response: The legislative process is separate from the rulemaking process. Since the beginning of

Cleaner Air Oregon Program development, DEQ and OHA have sustained a commitment to an open, fair

and transparent rulemaking process. The agencies have listened to all comments and concerns,

considered them thoroughly, and made proposals based on protection of public health, good

governance and wellbeing of Oregon communities. The agencies will continue to strive for an open, fair

and transparent process in implementing and making any needed revisions to Cleaner Air Oregon in the

future.




684, 792

Comment Category #238: Purpose - Diesel / vehicle emissions should be

addressed

Description: Unfiltered industrial trucks are legal here but not in California. This is absurd, as diesel

filters are not only quite affordable for large trucking operations, but more importantly they will help

save lives. Oregon should require filters and institute a progressive switch away from petroleum towards

biodiesel over the next decade. We need to stop allowing dirty diesel trucks to be dumped into Oregon

from states that have higher emission standards. Stop making diesel a priority above health. Get rid of

diesel! Or develop a combination that is not killing people and the environment. The legislature should

pass a law that would require heavy-duty diesel emissions testing, similar to Washington State. The

governor herself stated that “upwards of 400 Oregonians are sickened or die each year from diseases

caused by diesel emissions” and promised that the Volkswagen $68 million payout would be used

“immediately to protect the health of Oregonians, both now and in the future.” The governor appears to

be issuing an executive order that will use a portion of the Volkswagen settlement to pay for electric

vehicle charging stations. I support electric vehicle infrastructure improvements, but I am opposed to

using those funds at this time for charging stations. These funds should be used to substantially reduce

dirty diesel air pollution now.

Another comment mentioned intermodal truck emissions in neighborhood, shipping use of public

streets instead of own property.


Item G 001354


Response: DEQ is concerned about health impacts from diesel emissions, but they are outside of the

scope of Cleaner Air Oregon.

Oregon’s Volkswagen (VW) Environmental Mitigation Plan is focused on reducing diesel emissions from

at least 450 school buses. In addition, Task 5A of Executive Order No. 17-21 signed by Governor Brown

directs the Oregon Department of Environmental Quality to partner with the Oregon Department of

Transportation, the Oregon Department of Energy, and the Oregon Health Authority to engage

stakeholders and receive public comments on a proposal to leverage up to 15% of the VW mitigation

funds to develop and maintain electric vehicle charging stations. DEQ conducted this process and will

submit a proposal to the 2019 Oregon Legislature to inform future discussions about funding other

diesel emission reduction priorities with eligible VW funds.

State level regulatory solutions to reduce diesel exhaust are very limited by existing federal laws and

opposition from organizations representing engine owners. DEQ is currently undertaking a non-road

inventory and a diesel-monitoring project to better understand, quantify and define public health

effects from diesel exhaust.



Comments linked to this category: 830, 22, 26, 27, 28, 34, 35, 36, 49, 55, 58, 64, 68, 70, 78, 81, 89, 96,

110, 115, 117, 122, 128, 132, 134, 136, 140, 142, 143, 147, 150, 156, 162, 167, 193, 194, 197, 205, 215,

224, 232, 235, 245, 251, 252, 265, 270, 274, 275, 281, 284, 309, 338, 362, 37

Comment Category #239: Purpose - do research into health effects of air toxics

and demonstrate CAO rules are protective of health

Description: You should do more work studying the effects of pollution on plant tissue, not just through

uptake in soils. Also, please expand your research into health effects from air-pollution so you can better

identify victims of pollution for redress.

The stated purpose of Cleaner Air Oregon is to “prioritize and protect the health and well-being of all

Oregonians.” The burden is on DEQ to affirmatively demonstrate that CAO rules are in fact protective of

health. All standards should be protective for even our most vulnerable populations, such as children,

and it is DEQ’s job to ensure this is the case.

Response: The funding for the proposed Cleaner Air Oregon program would not include funds for

toxicology research.




Item G 001355



Comment Category #240: Purpose - Enact other toxic air contaminant

regulations if they are science-based standards

Description:

Response: DEQ has reviewed the rules of six toxic air contaminant programs as part of the development

of Cleaner Air Oregon: Louisville, Kentucky; New Jersey; New York; Rhode Island, South Coast Air Quality

Management District in southern California, and Washington. The CAO rulemaking process benefited

from consultation with technical experts in other states and from consideration of lessons learned in

other programs. Each program is different and tailored to their specific state. While the draft CAO rules

borrow many elements from toxic air contaminant programs in other states, they are not exactly the

same as any previous program.

The draft rules outline a science-based process to determine potential health risks from each source. Air

concentrations of chemicals emitted by each facility would be modeled using validated models

developed by the U.S. Environmental Protection Agency. Air concentrations from emissions would be

compared to Risk Based Concentrations, which define a level of exposure that is not expected to harm

health. RBCs are based on levels identified by authoritative bodies like the EPA through a lengthy peer-

review process based on the best available science. DEQ relies on toxicity information from

governmental agencies that DEQ and OHA consider authoritative in their scientific rigor methods.

OHA and DEQ will recommend adoption and use of RBCs based on the toxicity information published by

the authoritative bodies listed in the proposed rules, and this includes adopting toxicity reference values

based on other governmental agencies that meet science-based standards. The general approach to

science-based evaluation of health risks and reliance on health-based levels established by authoritative

bodies is consistent with the approaches used in other state toxic air contaminant programs.




Comment Category #241: Purpose - Integrate CAO with criteria pollutant

program

Description: People are exposed to both criteria pollutants and air toxics, the programs should be

integrated to consider whole impact to public health. Generic PSELs do not adequately limit criteria

pollutants that increase health burdens and should be eliminated.

Response: DEQ acknowledges that risk to public health from both criteria pollutants and toxic air

contaminants may be cumulative. Once DEQ has experience implementing Cleaner Air Oregon, an

evaluation of how to coordinate with criteria pollutant regulations could be productive.


Item G 001356


The proposed rules focus on regulating industrial emissions based on localized health risks while criteria

pollutants are regulated based on regional attainment of national ambient air quality standards.

Consideration of cumulative risks from industrial toxic air contaminants and regional criteria pollutants

would be best addressed through a program that considers cumulative risks from all sources of pollution

in a specific area. SB 1541 allows for a pilot program to consider cumulative area risk from industrial and

mobile sources in one urban community. This area risk program will be set up through a separate

rulemaking.




Comment Category #242: Purpose - long term goal is inconsistent with Risk

Action Level for existing sources

Description: The long term goal of Cleaner Air Oregon is that the risk from all existing facilities be below

one hundred in one million and hazard index three by the year 2030. This stated long term goal is in

direct contradiction to the required risk assessment levels in the rule. Table 1 in the rule document

requires existing sources to meet a cancer risk level of twenty five in one million excess cancer risk and a

hazard index of one.

Response: DEQ revised its previous long-term goal of 100 and 3 by 2030 to be more protective of public

health. The current proposal sets a long-term goal as a "50% reduction in the number of existing


1 by the year 2034." The current proposed long-term goal is now consistent with the current Risk Action

Levels for existing sources.




Comment Category #243: Purpose - long term goal of 10 in 1 million for existing

sources over time

Description: Once CAO is established, it would be desirable to design a program to bring existing

facilities under the more stringent rules proposed for new facilities, over time.


Item G 001357


Response: DEQ agrees that the ultimate goal of Cleaner Air Oregon is to reduce exposure to industrial

and commercial toxic air contaminants but Senate Bill 1541 limits DEQ's authority. SB 1541 allows

sources to have permit risk limits up to 200 in a million and a hazard index of 10 as long as the source

has TBACT installed on all significant emissions units. DEQ cannot require sources to undertake

additional measure to limit or reduce toxic air contaminant emissions beyond TBACT unless risk is above

200 in a million and a hazard index of 10. In that case, sources must go beyond TBACT, potentially

curtailing production, to stay below 200/10.

There is a sunset provision for the Risk Action Levels, or benchmarks, set in SB 1541. On January 1, 2029,

the TBACT Risk Action Level for existing sources of 50 in a million and hazard index of 5 can be reduced

to no less than 25 in 1 million and a hazard index to be set by the Environmental Quality Commission.

The sunset provision will help DEQ meet its long-term goal to achieve a 50% reduction in the number of

existing facilities posing either an excess cancer risk of more than 25 in a million or a Hazard Index of

more than 1 by the year 2034, but not the new source Risk Action Level of 10 n 1 million and hazard

index of 1.




Comment Category #244: Purpose - past disregard for human health

Description: Communities have suffered the devastating health effects of exposure to toxins for decades

due to our state government’s disregard for human health. These industry giveaways show a continued

indifference towards the communities that need health-based regulatory reform the most.

Response: The Cleaner Air Oregon program development process occurring at DEQ and OHA is a strong

indication of Oregon's commitment to understanding and decreasing public health impacts from

industrial toxic air contaminant emissions. DEQ and OHA listen to all concerns and comments about

Cleaner Air Oregon, consider them thoroughly, and make choices based on protection of public health,

good governance and well-being of Oregon communities.




217, 224, 250, 286, 298, 299, 303, 321, 322, 391, 400, 418, 490, 498, 513, 519, 544, 551, 563, 564, 638,

660, 661, 778, 807, 725, 726, 775, 917, 803


Item G 001358


Comment Category #245: Purpose - prioritize both human health and economy

Description: Rules should be balanced to protect both human health and a healthy economy.

Commenters advocate for sound, balanced policies and ground-rules that support economic

development and jobs, environmental protection and improvements, and social equity and

enhancement.

Response: DEQ agrees that Cleaner Air Oregon regulations need to consider health protection, financial

impacts and equity.




216, 250, 258, 277, 286, 301, 302, 303, 307, 314, 333, 348, 354, 355, 377, 378, 390, 409, 432, 450, 495,

500, 550, 556, 580, 582, 602, 610, 623, 624, 627, 655, 658, 665, 923, 754, 732, 77

Comment Category #246: Purpose - Prioritize health over jobs and corporate

profit

Description:

Response: DEQ agrees that Cleaner Air Oregon regulations need to consider health protection, financial

impacts and equity, and that these goals do not have to be mutually exclusive. Economic analysis of the

Federal Clean Air Act and California toxic air contaminant regulations has shown that programs to

control the health risk from industrial toxic air contaminant emissions can have long term financial

benefits and did not in general result in job loss. However, in specific cases where businesses could

experience harmful financial impacts, proposed Cleaner Air Oregon regulations have provisions that

would allow for more time to comply or other types of regulatory flexibility.

DEQ and OHA have heard from participants in the CAO process that there could be communities whose

economic health could be radically affected by CAO risk reduction requirements. While DEQ and OHA

prioritize protection of public health, the agencies recognize that local economy is one of the social

determinants of health and that in some cases severe damage to local economic health could result in

damage to human health and welfare. A holistic approach to community health and welfare requires an

opportunity to consider and balance multiple factors for individual communities.

DEQ and OHA listen to all concerns and comments about Cleaner Air Oregon, consider them thoroughly,

and make choices based on protection of public health, good governance and well-being of Oregon

communities.



Item G 001359




35, 62, 67, 890, 74, 81, 82, 83, 909, 90, 92, 94, 96, 104, 108, 115, 117, 118, 122, 128, 147, 172, 174, 195,

197, 199, 206, 215, 217, 222, 224, 233, 240, 246, 248, 250, 251, 268, 271,

Comment Category #247: Purpose - Protect health of children and other

sensitive and vulnerable populations

Description: Health protection for sensitive and vulnerable populations

Response: DEQ and OHA wrote the draft rules with the goal of designing a program that protects the

health of sensitive populations such as children, pregnant women, elderly people, and people with

chronic health problems. The broad scope of the rules make the program more health protective. For

example, the rules will apply to both new and existing facilities. In addition, DEQ will regulate facilities

based on cumulative health risks from all chemicals emitted by a facility, as opposed to considering risk

from each chemical independently. DEQ proposes to prioritize facilities located in communities that may

have a high proportion of vulnerable populations.

Several specific elements of the rule also make the program more health protective. For example, the

Risk Based Concentrations set for each chemical are based on values developed by authoritative sources

using an approach that is intended to be protective of the most sensitive health endpoints in sensitive

populations. In addition, emissions models are designed to over-estimate the potential levels of

chemicals in air and the risk assessment approach makes conservative, health-protective assumptions

about the potential duration and frequency of neighbors' exposure to a facilities emissions.

Risk Action Levels that set the level of risk at which risk reduction may be required under Cleaner Air

Oregon were set by the Oregon legislature, but may be decreased for existing facilities in 2029. Risk

Action Levels may be lower for chemicals that have developmental toxicity or other severe effects. DEQ

and OHA will identify these chemicals in 2019 using input from a technical advisory committee meeting

during the fall of 2018 as required by the Oregon legislature.




917, 794, 919, 921, 783, 929, 913

Comment Category #248: Purpose - protect public health and strengthen rules


Item G 001360


Description: Ensure that regulations will be enforced effectively. The current rules create an excess of

discretion for enforcement and put a lot of onus on a single entity—the DEQ Director—to interpret and

enforce rules. The variety of exclusions and off-ramps for industry also calls into question whether the

rules can effectively protect health. These uncertainties make the rules vulnerable to interpretation

based on agency budgets, staff appointments and external pressure that can divert efforts from the

original directive: health protection. Strengthening the rules and eliminating some exclusions and off-

ramps will allow the program to retain its integrity despite any changes in agency staff and budget.

Strengthen the rule language to eliminate/reduce DEQ discretion.

Response: DEQ has eliminated the Director Consultation concept. This was done in part in response to

SB 1541, which provided certainty by setting certain benchmarks and action thresholds, and as a result

of public comments. There was concern about the uncertainty of how the consultation process would

work.

In place of Director Consultation, DEQ created specific and transparent criteria that would allow new

facilities to exceed a cancer risk of 10 if they use TLAER, or the Toxics Lowest Achievable Emissions Rate.

This is lower than the previous hard cap of 50 and 3 on Director Consultation. DEQ made these changes

because of public comment and for consistency with other changes made to the RAL table.

DEQ has changed the proposed rules to allow postponement of risk for one five-year period. After that

five-year period, the owner or operator of the source must reduce risk in accordance with the Risk

Reduction Plan rules. Sources cannot ask for an extension on postponement of risk reduction or on the

requirement to reduce risk after the postponement ends.

The October 2017 draft of the proposed CAO rules included a term called the Conditional Risk Level,

which allowed facilities that had TBACT installed on all significant emission units to pose a higher level of

risk than would be acceptable for other facilities, until a more effective TBACT became available. DEQ

remove the term Conditional Risk Level is no longer used in the rules, but the Legislature included this

concept in SB 1541 and DEQ retained it in the rules.

Sources whose potential risk is more than the TBACT Risk Action Level are required to meet TBACT for

all significant emissions units, and the requirements will be included in the Toxic Air Contaminant Permit

Addendum or the operating permit if it is being modified at the time. Sources will be allowed time to

install TBACT, up to two years with the possibility of a 2-year extension. DEQ will not allow sources more

time than is necessary to install TBACT and therefore, will minimize health risks to people.




846, 847, 27, 30, 32, 858, 49, 890, 82, 909, 88, 92, 94, 104, 112, 172, 224, 240, 242, 284, 299, 391, 396,

406, 413, 441, 453, 455, 456, 457, 491, 510, 515, 530, 533, 537, 551, 580, 599, 6


Item G 001361


Comment Category #249: Purpose - should be based on science, not politics

Description: Cleaner Air Oregon should be based on science, not politics.

Response: DEQ agrees that CAO should be based on science. That is why DEQ selects toxicity reference

values from authoritative sources, and follows standard air dispersion modeling and risk assessment

procedures. Within the program, though, there are necessary decisions made that are policy decisions,

not scientific decisions. The primary example of this is the selection of risk action levels. The risk

assessment will provide a scientific calculation of potential risk, but the level of risk deemed acceptable

is a policy decision. The current risk action levels proposed in rule are requirements of Senate Bill 1541,

the result of a political process. DEQ's rules are required to be in compliance with statute.




425, 438, 505, 535, 626, 741, 732, 798, 912, 759, 772, 754, 751, 773, 800, 764

Comment Category #250: Purpose - Should be health based, not technology

based

Description: Adopt strong rules that discard the old system of technological fixes.

Response: Within the risk levels set by Senate Bill 1541, the proposed rules are health based because

they manage risk from industrial facilities to people living nearby. There may be situations where a

facility is allowed to operate above Risk Action Levels because it is controlled through National Emission

Standard for Hazardous Air Pollutants or has met TBACT requirements, but the rules propose additional

reductions beyond upper risk levels and a health backstop of permit denial levels.




Comment Category #251: Purpose - should include odors

Description: It is my understanding that the Draft Air Program Rules have been watered down from the

Cleaner Air Oregon program, specifically nuisance implementation policy. Response to nuisance

complaints needs be part of the CAO program!

Response: From the beginning of Cleaner Air Oregon program development, including the 2016 kick off

by Governor Brown, DEQ and OHA have intended to limit the scope of the program to address health

risks from exposure to toxic air contaminants. Cleaner Air Oregon has never included provisions to


Item G 001362


address nuisance odors or nuisance odor complaints. DEQ has a separate and distinct nuisance odor

strategy. In addition, Senate Bill 1541 limited the Cleaner Air Oregon program to reduce public health

risks from emissions of toxic air contaminants.

In some cases, toxic air contaminants can be harmful at levels that cause nuisance odors. If a source

emits a toxic air contaminant that is above Risk Action Levels and also odorous, Cleaner Air Oregon is

designed to protect against the health effects of such a pollutant. However, many air pollutants can

cause nuisance odors while not exceeding toxic air contaminant risk action levels. The majority of toxic

air contaminants regulated by Cleaner Air Oregon can be harmful at levels that do not cause noticeable

odors or the pollutants of concern are not inherently odorous. Sources that are required to maintain a

complaint line under Cleaner Air Oregon could potentially receive complaints about odors also related

to concerns about risk from toxic air contaminants.




730, 727, 725, 726, 792, 787, 788

Comment Category #252: Purpose - should limit pesticide/herbicide application

Description: We fight the toxic poisoning of our farm fields, road shoulders, and our forests. They are

sprayed with multiple deadly herbicides like roundup, 2,4-D atrazine, chlorpyrifos and bee killing

neonicotinoid that cause cancers. THIS MUST STOP!

Response: DEQ does not have the authority to regulate agricultural operations. The Department of

Agriculture regulate these activities.




Comment Category #253: Purpose - should limit petroleum extraction

Description: There is no reason why we should be using petrol or fossil fuel products. We can run cars,

trucks, on solid hydrogen. We can run trains and fly planes on biodiesel. We can even make plastic like

products from biomass cellulose products so there is no reason why we should be using petrol products

at all. So please stop allowing drilling for oil, fracking for gas, which pollutes the atmosphere and

destabilizes the earths crust by drilling and fracking.


Item G 001363


Response: DEQ does not have the authority to allow or stop drilling for oil or fracking for gas. The

Oregon Department of Geology and Mineral Industries regulates these activities. If DOGAMI approves

the drilling operations and hydraulic fracturing, then DEQ would be involved in permitting under the

Safe Drinking Water Act and Clean Water Act. Air permits may also be required if emissions exceeded

permitting thresholds.




Comment Category #254: Purpose - should not regulate woodstove smoke

Description: Don't limit ability of low income residents to heat their homes with wood

Response: The proposed Cleaner Air Oregon rules would not limit residential wood burning.




Comment Category #255: Purpose - should regulate chemtrails

Description: I hope we will be the 1st state in the nation to ban persistent jet chemtrails, causing added

air, water and earth pollution at extreme levels.

Response: The proposed Cleaner Air Oregon program does not include regulation of emissions from

mobile sources, including airplanes.




Comment Category #256: Purpose - should regulate woodstove smoke and field

burning

Description: Do not allow backyard or field burning! The woodstoves are bad enough, but at least they

have smokestacks. I start coughing in September and don't stop until May, and I have inflammation and

headache all that time also. Oregon has had enough smoke. T


Item G 001364


I live near Medford, Oregon. When we have still weather conditions, the diesel, woodsmoke, and

industry pollution build up to such unhealthy levels that I cannot garden, walk, or do any exercise

outside! As I am low-income and need to grow a lot of my own food, and walk to errands, this is a very

dire situation for me. I would like to see some programs that replace old woodstoves with newer,

cleaner ones.

Response: The proposed Cleaner Air Oregon program does not include regulation of emissions from

woodstoves or field burning.




Comment Category #257: Purpose - support health based program

Description: The commenter especially likes that the basis of Cleaner Air Oregon is changing from a

technical regulatory structure to a health-protective oriented structure. Commenter wants agencies to

adopt reasonable regulations that are focused on public health needs, informed by scientific research,

and implemented quickly with sufficient legislative appropriations to ensure compliance.

Response: Senate Bill 1541 authorized fees to fund full implementation of Cleaner Air Oregon. The

proposed Cleaner Air Oregon program is intended to address health risks from toxic air contaminant

emissions to people near industrial facilities. It is a risk based program using the most current science to

set toxicity reference values for risk assessment.




315, 319, 341, 350, 351, 367, 374, 402, 418, 424, 446, 451, 452, 474, 478, 487, 490, 502, 505, 510, 511,

515, 518, 520, 521, 522, 523, 525, 527, 536, 561, 563, 565, 570, 571, 575, 580, 581

Comment Category #258: RALs - action levels are too high

Description: Requested change: Reduce the RALs to a lower cancer limit and a noncancer HI of 1.

Response: Senate Bill 1541, adopted into law by the 2018 Legislature, established public health

benchmarks for non-cancer hazard index and excess cancer risk to determine if emissions reductions

would be required of toxic air contaminant sources. DEQ revised the proposed rules to conform to these

statutory requirements.

Hazard Index


Item G 001365


As a result of SB 1541, the noncancer risk action level for existing facilities increased from an Hazard

Index of 1 to an HI of 5. For new facilities, the RAL remains at 1. By definition, DEQ is confident at an HI

of 1 that adverse effects in humans will not likely occur. For HI values greater than 1, there is an

increased chance of adverse effects. This does not mean that an HI value greater than 1 is necessarily a

level that is harmful to the public. It means there is less confidence that the concentrations will be

protective.

Because of the complexity of noncancer risk, other toxic air contaminant programs have struggled to

define clear noncancer hazard thresholds. Washington and New Jersey use a HI above 1 as a trigger to

take a closer look, but leave final decisions about allowable noncancer risk entirely up to agency

discretion on a case-by-case basis. Conversely, the South Coast program in California triggers regulatory

action for existing facilities when noncancer HI exceeds 3. DEQ's Cleanup Program uses a hazard index of

1 to determine a level below which adverse health effects are not expected. To protect public health,

DEQ and OHA did not propose risk action levels greater than those required by Oregon statute.

SB 1541 also provides a mechanism for the EQC to adopt through rulemaking an HI other than 5 (but no

less than 3) as a risk action level for some chemicals under certain circumstances. DEQ established an

advisory committee to assist with determining which chemicals should be considered for reduced

acceptable hazard index levels.

Cancer Risk

As a result of SB 1541, the excess cancer risk action level requiring treatment for existing facilities

increased from 25 in one million to 50 in one million. For new facilities, the RAL remains at 1. DEQ

revised the draft rules accordingly. According to statute, DEQ may not require an existing source using

TBACT to undertake additional measures to limit or reduce toxic air contaminant emissions unless the

emissions are greater than 200 in one million. This is called a risk reduction level. In addition, DEQ added

an immediate curtailment level of 500 in one million. In 2029, the EQC can revise the risk action level for

carcinogens, although the level cannot be lower than 25 in one million.




115, 128, 149, 170, 215, 224, 250, 261, 262, 265, 268, 297, 300, 308, 309, 424, 441, 491, 506, 507, 513,

515, 567, 579, 613, 637, 661, 758, 706, 681, 680, 695, 707, 683, 708, 921, 759,

Comment Category #259: RALs - action levels are too low

Description: Risk Action Levels (RALs) for cancer and noncancer should be higher. Adopting a noncancer

Risk Action Level of 1 is inappropriate given that uncertainties can span an order of magnitude.


Item G 001366



benchmarks (cancer risk and non-cancer hazard index) for use by DEQ to determine if emissions

reductions would be required of toxic air contaminant sources. DEQ revised the proposed rules to

conform to these statutory requirements. Under SB 1541, the proposed noncancer risk action level for

existing facilities increased from a Hazard Index of 1 to a Hazard Index of 5. By definition, DEQ is

confident at a Hazard Index of 1 that adverse effects in humans will not likely occur. For Hazard Index

values greater than 1, there is an increased chance of adverse effects.

To protect public health, DEQ and OHA did not propose risk action levels greater than those required by

SB 1541. The rules do not require any emissions reductions for any existing facility unless its risk exceeds

50 in 1 million cancer risk or a noncancer Hazard Index of 5 (TBACT RAL). If an existing facility has TBACT,

the rules do not require emissions reductions unless a facility's risk exceeds 200 in 1 million excess

cancer risk or a noncancer Hazard Index of 10 (Reduction RAL). The remaining lower RALs in the

proposed rules do not require any emissions reductions on the part of an existing facility, which is

consistent with the text and intent of Senate Bill 1541. RALs for new sources are also consistent with

Senate Bill 1541.




631, 640, 643, 644, 742, 673

Comment Category #260: RALs - are inconsistent with statute

Description: There are some things in the proposed rule package that deviate from the intent and

objectives of Senate Bill 1541 such as regulatory thresholds, noncancer risks, receptors and best

available science.

Response: DEQ has included the benchmarks that were in SB 1541 in the proposed rules. The

benchmarks for new or reconstructed sources are called TLAER Level Risk Action Levels: 10 in one

million and Hazard Index of 1. The benchmarks for existing sources are called TBACT Level Risk Action

Levels: 50 in 1 million and hazard index of 5. The level at which DEQ can require an existing source to go

beyond TBACT to reduce emissions (four times the benchmark for excess lifetime cancer risk or two

times the benchmark for excess noncancer risk) are called the Risk Reduction Level Risk Action Levels:

200 in 1 million and Hazard Index of 10.

SB 1541 did not address, by either including or prohibiting, benchmarks for other Risk Action Levels even

though these Risk Action Levels were included in the proposed rules at the time SB 1541 was enacted:

• TEU de minimis Level (now called Aggregate Significant TEU Level),

• Source de minimis Level (now called Source Permit Level),


Item G 001367


• New Source Permit Denial Level, Existing Source Risk Action Level (now called Community

Engagement Level), and

• Existing Source Permit Denial Level (now called Immediate Curtailment Level).

Therefore, the proposed Risk Action Levels do not deviate from the intent and objectives of SB 1541.

Please see other categories for responses to comments about receptor locations (Exposure location -

definition is inconsistent with statute) and noncancer risk assessment (Hazard quotient - values must

undergo analysis for consistency with "serious health effects" language in statute).




Comment Category #261: RALs - de minimis levels for sources and TEUs are too

low

Description: The de minimis source threshold provides a valuable tool for DEQ being able to focus its

resources on those sources where there is the potential of a significant risk. However, that threshold is

meaningless if the de minimis source threshold is set too low--particularly where risk is determined

based not on actual emissions, but on capacity to emit. For existing sources we request that the

Department set the de minimis source thresholds at 5 in 1 million for cancer and 1 for Hazard Index.

The de minimis TEU levels provides a valuable tool for DEQ being able to focus its resources on those

sources where there is the potential of a significant risk and to avoid expending a lot of time on trivial

matters. However, the currently proposed de minimis TEU threshold is meaningless as it is set far too

low. For existing sources we request that the Department set the de minimis TEU thresholds at 1 in 1

million for cancer and 0.5 for Hazard Index.

Response: DEQ agrees with the commenter that the de minimis thresholds were too low, and is

proposing to increase the de minimis levels for both sources and TEUs.

DEQ proposes to increase the Source Permit Level for existing sources to a cancer risk of 5 in a million

and a hazard index (HI) of 0.5. Sources whose risk at capacity (the maximum regulated pollutant

emissions from a stationary source under its physical and operational design) is less than or equal to the

Source Permit Levels would be considered de minimis and would not be required to obtain a Toxic Air

Contaminant Permit Addendum. De minimis sources would still be required to report toxic air

contaminant emissions on a regular basis for emissions inventory purposes, and DEQ would use that

information to ensure that they are still de minimis. The Source Permit Level for new/reconstructed

sources would remain the same at 0.5 in a million and HI 0.5.

DEQ also proposes higher levels and a new way of setting de minimis levels for Toxic Emission Units

(TEUs). DEQ is replacing the Significant TEU Level with an "Aggregate TEU Level" for both


Item G 001368


new/reconstructed sources and existing sources. Instead of setting a per-TEU de minimis risk level, the

Aggregate TEU Level is on a per-facility basis. The facility owner or operator can designate one or more

TEUs to be aggregated, as long as their total risk fits below the Aggregate TEU Level. The Aggregate TEU

Level for new sources would be 0.5 in a million and an HI of 0.1. For existing sources, it would be 2.5 in a

million and HI 0.5.

If a facility were above the TLAER or TBACT risk level, then any TEUs that are included in the Aggregate

TEU Level would be considered de minimis and would not have to meet TLAER/TBACT. All other TEUs

must meet TLAER or TBACT if required to do so. The Aggregate TEU Level is similar to the Aggregate

Insignificant Activities concept in DEQ's Title V program.




Comment Category #262: RALs - do not allow any operation over Permit Denial

Risk Action Level or allow for 6 months only

Description: Permit denial RAL did not undergo a public process - the 500 in 1 million excess cancer risk

level for permit denial risk action level in particular – should not be included in the draft rules.

Commenter supports the inclusion of the provision that DEQ will not approve a source that exceeds the

Permit Denial Risk Action Level and supports the requirement that a source to reduce risk below the

Permit Denial Risk Action level within six months “by whatever means are necessary.” A source that

poses significant risk to public health should not be allowed to continue business as usual and should be

required to take extraordinary measures, beyond traditional technological risk reduction, to reduce its

risk to the community. Additionally, DEQ should make clear in the rules that no source will be permitted

at a risk level above the Permit Denial Risk Action Level and that failure to reduce risk below that level

within six months will result in permit denial and potential enforcement for any unpermitted operations.

Commenter recommends DEQ add a provision to prevent a source from operating above the Permit

Denial Risk Action Level while the source is completing its risk assessment for a Conditional Risk Level,

TBACT Plan or Risk Reduction Plan. While the source may ultimately obtain approval to operate below

the Permit Denial Risk Action Level, DEQ should not allow a source that poses a dangerously high level of

risk to the community to continue full operations during the permit application and review process. The

permitting process could take longer than one-year to complete, during which time the surrounding

community will continue to be subjected to a very high risk levels. To allow this is contrary to the

protection of public health and principles of environmental justice. DEQ should have the ability to

restrict the facility’s operations during the permit process in order to protect public health.

Response: DEQ and OHA held multiple meetings (technical work group meetings, public forums, and

Rules Advisory Committee meetings) to discuss the proposed rules for Cleaner Air Oregon. The CAO

stakeholder process involved agency research, RAC meetings, written and oral input, and ongoing


Item G 001369


thought and discussion by the DEQ/OHA rulemaking team. DEQ and OHA strive to bring key concepts to

the RAC for discussion, but because CAO is a complex set of regulations with ongoing discussion by

many interested parties, it was not always possible to offer equal time to every rule and program

concept.

In drafting regulations for public comment, DEQ is not limited to concepts discussed at advisory

committee meetings. The permit denial level was introduced at one of the later RAC meetings and there

was an opportunity for discussion. It is not possible to discuss every detail of the rules with the public.

That is the purpose of public notice. DEQ has changed the name of the permit denial Risk Action Level

for existing sources to Immediate Curtailment Level.

Senate Bill 1541 established the Risk Action Level of 200/10 at which DEQ can require sources to go

beyond TBACT to reduce toxic air contaminant emissions. DEQ and OHA wanted to be very clear that

with potential risk above the Immediate Curtailment Level, sources would not be allowed to operate for

any amount of time. The first draft of the rules allowed operation above the permit denial level for 6

months. DEQ has removed that provision from the proposed rules. DEQ can and has used the Cease and

Desist Order to require sources to shut down if they are responsible for emitting contamination into the

air that presented an imminent and substantial endangerment to the health of persons in the vicinity of

the facility. Otherwise, DEQ will include permit conditions restricting operation above the Immediate

Curtailment Level.




Comment Category #263: RALs - new and existing source RALs should be the

same

Description: Risk Action Levels for new and existing sources should be the same.




conform to these statutory requirements. SB 1541 sets the RALs for existing sources at 50/5 and for new

sources at 10/1.




Item G 001370



271, 280, 308, 309, 341, 350, 351, 370, 396, 400, 418, 441, 446, 488, 490, 491, 506, 510, 511, 530, 538,

552, 568, 577, 599, 602, 604, 613, 651, 661, 663, 758, 793, 680, 694, 699, 759, 9

Comment Category #264: RALs - permit denial RAL discourages growth in

Oregon

Description: Permit Denial Level sends a clear message that industry is not wanted in Oregon. Oregon

should be encouraging expansion, growth, and investment in the state. A new permit denial level based

on modeled risk sends a clear message to industries interested in permitting new sources in Oregon that

new investments are not wanted. Having drastically different standards for new and existing sources

opens DEQ to extremely complicated legal arguments and permitting challenges.

Response: The permit denial level of 25 and 1 for new sources in Oregon is highly achievable at the

stage when new facilities are planned, developed and built. Data from California and Washington toxic

air contaminant permitting programs verify this assertion.

As a result of the South Coast Air Quality Management District's air toxic program in Southern California,

95 percent of 1,640 Core facilities (facilities with higher potential risk that have been required to

perform health risk assessments) have demonstrated cancer risks below 10 in a million and acute and

chronic non-cancer hazard indices of less than 1.0, or their emissions have been low enough to not

require a Health Risk Assessment. Washington has the same 10 in 1 million and Hazard Index of 1

governing new source operation that DEQ is proposing.




Comment Category #265: RALs - Permit denial RALs too high

Description: The Permit Denial Risk Action Level for existing sources and new sources are too high.


benchmarks (cancer risk and non-cancer hazard index) to be used by DEQ to determine if emissions

reductions would be required of toxic air contaminant sources. DEQ has revised the proposed rules to

conform to these statutory requirements. DEQ has proposed new source permit denial levels of 25 and

1, and for existing sources immediate curtailment levels of 500 and 20. In considering an upper

immediate curtailment level, DEQ found that few other regulatory authorities that use such a limit. The

one example DEQ found used 1,000 in a million, which we considered to be insufficiently protective.



Item G 001371




261, 280, 308, 400, 424, 441, 491, 499, 507, 510, 511, 538, 571, 579, 602, 613, 651, 661, 663, 797, 720,

683, 722, 680, 692, 681, 689, 802, 705, 805, 706, 693, 760, 713

Comment Category #266: RALs - provision to change the RALs in 2029 should be

included in rule now

Description: The EQC should immediately adopt Oregon’s Hazardous Index benchmark to be equal to HI

1 effective 2029. Let’s not put this off until 2028!

Response: In SB 1541, the legislature expressly intended for the Environmental Quality Commission to

consider setting different cancer and noncancer risk benchmarks for existing facilities in 2029, not

during the current rulemaking process. In addition, the Commission will gain insights on the pros and

cons of changing the benchmarks after DEQ has ten years of experience, data and metrics from

implementing Cleaner Air Oregon.




Comment Category #267: RALs - should consider ecological impact as well as

human health

Description:

Response: DEQ's Water Quality Program and Cleanup Program protect both human health and the

environment. EQC asked DEQ to focus CAO rulemaking on potential impacts to human health. This

makes sense because it is more likely that people will be closer to emission sources and more likely to

be exposed than animals in a wildlife area. The proposed rules include provisions to evaluate indirect

health impacts if DEQ considers it relevant, such as deposition of chemicals to a lake and subsequent

uptake of chemicals into fish, which humans then consume. DEQ considers it likely that indirect

pathways of exposure will rarely need to be evaluated. If during implementation of the program over

the next few years DEQ finds that indirect pathways are more important than expected, DEQ may

consider evaluating potential risks to the environment. This would require additional rulemaking.




Item G 001372



Comment Category #268: RALs - support different RALs for new and existing

sources

Description: RALs for existing sources should be less stringent than those for new sources




conform to these statutory requirements. SB 1541 sets the RALs for existing sources at 50/5 and for new

sources at 10/1.




Comment Category #269: RBCs - 1,3-butadiene

Description: The commenter wants DEQ and OHA to use a TRV calculate by the Texas Commission of

Environmental Quality for 1,3-butadiene, rather than the EPA IRIS value from 2002.

Response: DEQ and OHA selected the TRVs for Cleaner Air Oregon from widely-recognized, peer-

reviewed, traditional authoritative sources. The Texas Commission of Environmental Quality is not

included among the selected authoritative sources. Therefore, DEQ and OHA decline to use the value for

1,3-butadiene as published by the TCEQ, and will instead adhere to choosing TRVs from the

authoritative sources already being used, as a matter of policy.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use

most current and protective science available."




Comment Category #270: RBCs - 215 air toxics may not be enough

Description: RBCs: 215 chemicals may not be enough


Item G 001373


Response: The proposed rule would regulate emissions of approximately 260 chemicals based on health

risks. The number of chemicals for which authoritative sources have set toxicity reference values limits

the number of chemicals. As authoritative sources adopt new toxicity values for chemicals, the rules

include a mechanism for adding toxicity values and chemicals into the program.

The program is only able to regulate risk for the approximately 260 chemicals for which health risk data

is available. However, the program would still require facilities to report emissions of any of the

chemicals included in the broader reporting list (over 600 chemicals).




Comment Category #271: RBCs - acute RBCs should reflect uncertainty in TRVs

Description: Requested change: Provide mechanism to allow flexibility in risk management decisions

based on variable applicability of acute TRVs to various averaging times and severity of associated health

effects.

Response: DEQ and OHA designed Cleaner Air Oregon to protect public health by preventing levels of

exposure that could cause adverse effects. Cleaner Air Oregon proposed Toxicity Reference Values to

identify levels of exposure to each chemical that are not expected to harm health. While there is

uncertainty embedded in TRVs, they represent the best available summary of the science around the

toxicity of each chemical.

CAO does not use TRVs as regulatory limits. CAO proposed TRVs as a science-based tool to characterize

potential health risks of emissions. The Oregon legislature set Risk Action Levels to determine regulatory

risk management decisions. The legislature allowed for some flexibility in RALs by creating an

opportunity for DEQ to assign chemicals with developmental toxicity or other severe effects to slightly

lower Risk Action Levels.

Specific sources of uncertainty for acute TRVs include the uncertainty factors used to derive values and

the exposure duration the TRVs are designed around. Uncertainty factors used to derive TRVs are only

applied as necessary to protect sensitive populations in the face of scientific uncertainty. TRVs exist for a

reason and should not be disregarded. CAO selected acute TRVs according to a hierarchy of

authoritative sources. CAO designed the hierarchy for acute TRVs to prioritize sources that best match

the 24-hour exposure period. While ATSDR intermediate Minimum Risk Levels are last in the hierarchy

for acute TRVs, they are the best available information in the absence of other acute toxicity data.

Most toxicological studies are not designed to detect the exact minimum amount of time required to

cause a health effect. Therefore, when evaluating a toxicological study with an intermediate duration

exposure (defined by ATSDR as 15 - 364 days), it cannot be assumed that the entire study exposure

period was required to initiate or cause the measured effect. This is especially true for toxic air


Item G 001374


contaminants that cause developmental effects, where exposures in animal studies are typically

administered in utero on specific days of embryonic/fetal development. In such studies, effects are

measured at the end of gestation or later in life, not immediately following each exposure day to

determine which day of exposure (or how many days of exposure) was most important in causing the

measured effect.




Comment Category #272: RBCs - "acute" should include 1-hour or 8-hour

averaging times

Description: Commenter requests that rules be changed to include RBCs and RALs for 1-hour and 8-hour

averaging times as well as 24-hour RBCs.

Response: Most toxicological studies are not designed to detect the exact minimum amount of time

required to cause a health effect. This limitation means that toxicological studies cannot be used to

distinguish health effects that follow a 1-hour exposure and ones that follow a 24-hour exposure. There

is not high enough resolution in the underlying toxicological science to distinguish a meaningful

difference between a 1-hour risk-based concentration and 24-hour RBC in terms of health outcomes. If

1-hour monitoring data becomes available, DEQ could just as appropriately compare it against a 24-hour

RBC as to a 1-hour RBC.

Health effects that one could measure following a single 1-hour exposure would be acute enough that

emergency response may be appropriate. Agencies intend to regulate in a way that is better aligned

with the public health value of primary prevention. If health is protected from health effects following a

lower 24-hour exposure, it will also be protected from more acute health effects relevant to a much

higher intensity 1-hour exposure.

RBCs established by some jurisdictions, such as California, with an 8-hour averaging time, intend to

protect workers exposed to repeated 8-hour exposures over the course of years --- not a single 8-hour

exposure. CAO proposed rules already address the worker/non-residential scenario through RBCs for

worker and non-residential children. These RBCs assume exposure averaging times appropriate for

workplace or school environments, just like the 8-hour RBCs used by California.





Item G 001375


Comment Category #273: RBCs - Add additional uncertainty factor to protect

children

Description: Children are more susceptible to the harmful effects of chemicals and deserve additional

protection from regulators.

Recommend looking into the use of the Uncertainty Factor as an additional safety factor for children.

Response: For noncarcinogens, reference concentrations developed by EPA, OEHHA, ATSDR and others

are based on the most sensitive effects. When appropriate, they also incorporate uncertainty factors to

consider potential effects on sensitive members of a population. For these reasons, DEQ and OHA

consider TRVs to be appropriately protective of children.




Comment Category #274: RBCs - Aggregation of cancer risk

Description: The indiscriminate aggregation of cancer risks is questioned.

Response: The distinction between 'known' and 'probable' carcinogens does not necessarily correspond

to potency or degree of cancer risk. Probable carcinogens are often those for which there is not

sufficient data on effects in humans. In some cases, the lack of human data is because human exposures

are already limited because animal studies have indicated that the chemical is carcinogenic. It would

therefore be inappropriate to consider risk from 'probable' and 'known' chemicals differently.

The approach for evaluating cancer risk outlined in the proposed rules will not include chemicals that

have limited evidence of carcinogenicity. Cancer RBCs can only be calculated for chemicals for which

there is sufficient data to support a dose-response relationship. Chemicals for which there is not

sufficient data to support derivation of a cancer slope factor will not have a cancer RBC, and will not be

included in cancer risk assessments.

Specific target organs do not define overall increased lifetime cancer risk. Rather, cumulative cancer risk

calculations estimate total increased risk of any form of cancer. Many carcinogenic chemicals contribute

to cancer risk in multiple organ types. For many chemicals, the complete set of cancer target organs has

not been defined. For those chemicals, a target organ-specific approach to cancer risk could

underestimate cumulative risk.

In addition, cancer target organs in people may not be completely consistent with target organs in

animals. Chemicals that do not have sufficient human data may not accurately identify human target

organs. Attempting to calculate cancer risk for specific target organs independently would be

inappropriate given that the degree to which each carcinogen contributes to risk of cancer in each tissue

type is not clearly quantified.


Item G 001376


DEQ will not revised the rules in response to this comment.



Comment Category #275: RBCs - Cadmium - Acute RBC

Description: Proposes alternate acute TRV for cadmium. Recommends use of Texas Air Quality

Commissions exposure period adjustment to the same underlying study used to supported OHA and

DEQ's proposed acute TRV that came from ATSDR's Acute MRL for cadmium.

Response:

DEQ and OHA agree that, where possible, the ideal acute RBCs for a 24-hour exposure would be based

on studies with 24-hr exposure durations. However, authoritative bodies are inconsistent in the way

they define short-term exposure durations. These differences occur largely because study design and

exposure duration of studies underlying short-term guidelines are highly variable across chemicals. It is

rare for such a study to be designed with the intent to determine the precise minimum exposure

duration that could lead to an adverse health effect. This is the case with 1995 NTP study underlying

both ATSDR’s acute MRL and Texas’s acute toxicity value for cadmium.

In many cases (such as this one), the resolution of the toxicology data is not great enough to clearly

quantify the difference in risk between an hour of exposure, 1 day of exposure and 2 weeks of exposure.

In these cases, it is clear that adverse health effects occur following short-term exposure, but there is a

lack of precision in the precise minimum exposure duration required to cause the effect. The critical

effect could only be measured in sacrificed animals at the conclusion of the study.

Generally, the studies underlying ATSDR’s acute MRLs range from single exposures lasting a few minutes

to continuous exposures up to two weeks. Despite this range in exposure durations and in recognition of

the need for consistency in use, ATSDR defines its acute MRLs as generally protective of exposures

lasting between 24 hours and 14 days. In contrast, California applies all of its short-term RELs to

exposures lasting 1-hour or less, even though they rely on studies with similar variability in exposure

durations to those used by ATSDR.

Like the authoritative agencies DEQ and OHA propose to use as sources of acute TRVs, DEQ and OHA

propose acute RBCs with a uniform 24-hr exposure duration to evaluate acute risks consistently across

chemicals and facilities. Using this approach, short-term exposure can be consistently compared to 24-hr

concentrations. If acute RBCs instead used chemical-specific exposure durations more directly tied to

specific exposure durations of studies underlying each value, then facilities would have to model

concentrations for different chemicals over different exposure durations that matched each chemical's

acute RBC and it would not be possible to evaluate cumulative risk from acute exposure.

Also see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use



Item G 001377





Comment Category #276: RBCs - CAO should rely on ATSAC for TRV selection

and consult with them on all aspects of the program

Description: Requested change: CAO should use ATSAC to determine TRVs for all toxic air contaminats,

and CAO should consult ATSAC on all scientific aspects of the CAO program.

Response: DEQ and OHA have changed the selection process for the chronic TRVs proposed in Cleaner

Air Oregon. Rather than selecting chronic TRVs based on a hierarchy of authoritative sources as initially

proposed, the agencies have selected the most recently established values from any of the authoritative

sources. This approach ensures that the proposed TRVs are based on values developed using the most

recent science.

The role of ATSAC in contributing to TRV selection is indirect. DEQ, not ATSAC, is included as an

authoritative source for TRVs. DEQ used recent recommendations from ATSAC in the selection of the

initial set of TRVs because DEQ adopted the recommendations, and DEQ is an authoritative source.

However, ATSAC itself is not an authoritative source and is not the only mechanism DEQ may use to

establish values in the future.

OARS 340-246-0070(1)(a) states that one of ATSAC's roles is to "Review ambient benchmarks for the

state air toxics program." OARS 340-246-0090(1) states that "...Ambient benchmarks are not regulatory

standards, but reference values by which air toxics problems can be identified, addressed and

evaluated..." OARS 340-246-0070(1) states that "...[ATSAC] will not provide risk management or policy

recommendations..." Risk based concentrations in CAO are proposed as regulatory standards and they,

along with the CAO program itself, are new policy decisions proposed by DEQ. This sets TRVs and RBCs

apart from ambient benchmark concentrations described in existing rule and sets TRVs and RBCs, along

with the proposed CAO program outside the scope of ATSAC established in existing rule.

ATSAC was established in the absence of a program like CAO for non-regulatory and non-policy

purposes. If a committee like ATSAC were to advise DEQ on CAO-related topics, it would have to be

reformed with a new stated purpose in rule and with additional resources to support the much larger

scope proposed under CAO. DEQ values ATSAC for its expertise and past contribution to its non-

regulatory air toxics program. While DEQ proposed TRVs and RBCs consistent with ATSAC

recommendations for all 52 air toxics on which ATSAC has deliberated, DEQ proposed TRVs and RBCs

independently of ATSAC.

CAO is consistent with ATSAC recommendations and general policy in that DEQ's proposed set of

authoritative bodies is the same set used by ATSAC (US EPA, ATSDR, and California OEHHA). ATSAC has


Item G 001378


only recommended a toxicity value for adoption as an ambient benchmark concentration from sources

other than those three authoritative bodies on 2 occasions, and CAO rules as proposed afford DEQ the

flexibility to make similar adaptations as necessary since DEQ is included in the list of authoritative

bodies. DEQ has access to staff toxicologists both within DEQ and at OHA, one of which is a current

member of ATSAC.

As a volunteer committee, ATSAC has never and could never match the level of scientific rigor employed

by the authoritative bodies proposed in rule. For example, consider the process that ATSDR follows to

develop each of its minimal risk levels (MRLs) (from ATSDR's website

[https://www.atsdr.cdc.gov/mrls/index.asp]: "Proposed MRLs undergo a rigorous review process. They

are reviewed by the Health Effects/MRL Workgroup within the Division of Toxicology and Human Health

Sciences; an expert panel of external peer reviewers; the agency wide MRL Workgroup, with

participation from other federal agencies, including EPA; and are submitted for public comment through

the toxicological profile public comment period."

Similarly, exhaustive scientific review processes exist for each of the other authoritative bodies

proposed as sources of TRVs in CAO. This is exactly why most states with existing health risk-based air

toxics programs use toxicity values developed by these same authoritative bodies. It is not realistic or

necessary for any volunteer committee in Oregon to achieve the same level of scientific review and rigor

as these much better resourced agencies. To engage in the same level of scientific review in Oregon

would require a large investment in public resources and be duplicative of work already done by the

agencies proposed for use as authoritative bodies in CAO draft rules.




Comment Category #277: RBCs - chlorine

Description: American Chemistry Council has many concerns with the toxicity value originally chosen by

the ATSAC for chlorine.

Response: DEQ and the Oregon Health Authority have chosen, as a matter of policy, to draw their

Toxicity Reference Values from widely recognized authoritative sources, including but not limited to

ATSDR. Neither DEQ nor OHA have the resources to conduct comprehensive evaluations of the universe

of toxicity information available for a particular chemical, and instead relies on the authoritative

agencies that do have the resources, and have already conducted their own comprehensive evaluations.

For DEQ or OHA to re-evaluate any single study or the large volume of toxicological studies on chlorine

that exist would be costly in terms of state resources and duplicative of a service already provided by

other agencies.

Note that an important component of the scientific method is consensus among the scientific

community built upon multiple accumulated studies over time that corroborate each other and the


Item G 001379


overall weight of scientific evidence. Accepting the single most recent study while ignoring the context

of the overall weight of evidence and degree of consensus in the scientific community would not be

credible science. OHA and DEQ rely on authoritative agencies that have the resources to evaluate that

contextual information that influences their final toxicity values.

Also, see responses to categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most

current and protective science available."




Comment Category #278: RBCs - Chromium VI

Description: RBCs - Chromium VI RBCs need significant changes.

Hexavalent Chromium RBCs do not use appropriate MPAF values, and the related RBC is not consistent

with practices of other agencies, such as the Texas Commission of Environmental Quality.

Response: CAO decided to use a set group of authoritative sources from which to obtain the proposed

TRVs, and these sources include:

• DEQ (i.e., Air Toxics Science Advisory Committee choices of Ambient Benchmark Concentrations for 55

chemicals, as adopted into rule in May 2018),

• USEPA's Integrated Risk Information System (IRIS),

• USEPA's Preliminary Peer-Reviewed Toxicity Values (PPRTVs),

• California Office of Environmental Health Hazard Assessment's (OEHHA's) approved values, and

• Agency for Toxic Substances and Disease Registry's (ATSDR's) Minimal Risk Levels for chemicals with

non-cancer effects.

DEQ and OHA selected the most recent chronic values from these authoritative sources as chronic TRVs

for CAO, ensuring that chronic TRVs will reflect the most recent comprehensive evaluation of all

available science for each chemical.

Regarding use of alternate sources for TRV selection, DEQ and OHA will not consider other values as

identified by the commenter from the scientific literature (Haney, et al.) or from agencies outside of the

group of sources chosen (e.g., TCEQ) as alternative or replacement values for the TRVs already chosen.

DEQ and OHA are state agencies with limited resources and staff, and therefore cannot conduct

comprehensive reviews of all available evidence for a particular chemical, nor develop their own cancer

TRVs or noncancer Reference Concentrations. Nor can DEQ and OHA simply accept toxicological

information provided by commenters, because it may or may not contain all relevant information or be

fully representative of the state of the science. That is why DEQ and OHA obtained TRVs from an


Item G 001380


identified list of acceptable, recognized authoritative bodies that are sufficiently resourced to conduct

comprehensive reviews of available scientific information.

Comments related to the MPAF are addressed in a separate response. Also see response to comment

categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective

science available."




Comment Category #279: RBCs - clarify use of RBCs for metal compounds vs

parent metal

Description: The rules need more detail to describe how RBCs are to be used for metal compounds vs

the parent metals. Care should be taken such that the calculated risk from metal compounds is not

estimated on the basis of the parent metal where inappropriate. Sources should have option to discuss

the exact form of metal actually emitted from a facility, and have that information taken into account at

Levels 2-4 Risk Assessments.

Facilities should be allowed to propose TRVs other than those listed in rule that apply to the specific

form of the toxic air contaminant emitted from their facility.

Response: DEQ and OHA can work with a facility on a case-by-case basis to characterize the form of a

metal that the facility emits. CAO will consider facility risk for categories of metals and metal compounds

according to the types of relevant RBCs that are available for each group. When authoritative sources

for TRVs distinguish between different forms of a metal, DEQ will consider them separately. When

authoritative sources develop a single number for all forms of a specific metal, DEQ will consider all

emissions of the metal together. Risk assessments will not count emissions twice under different

categories of the same metal group.




Comment Category #280: RBCs - Cobalt, chronic cancer

Description: Remove cancer-based TRV for cobalt from CAO Table 3, as the ATSAC declined to make a

recommendation for this chemical based on potential cancer effects.


Item G 001381


Response:

DEQ and OHA made a number of changes to the CAO Table 3 - Toxicity Reference Values after review of

comments received, and additional consideration of various technical options. The agencies agreed that,

if the ATSAC determined that no carcinogenic value should be identified for a chemical based on

inadequacy of the toxicity information, then CAO would follow the ATSAC recommendation. As a result,

the agencies removed the chronic cancer TRV for cobalt from Table 3, which automatically removed it

from Table 4 (RBCs).




Comment Category #281: RBCs - Compounded uncertainty

Description: Conservative assumptions to deal with uncertainty compound through multiple layers of

the proposed risk assessment procedure.

Response: DEQ and OHA agree that RBCs incorporate conservative assumptions to ensure that they

reflect levels that are not expected to harm health. The agencies also agree that accurate

communication of the steps taken to ensure public safety is appropriate. Each element of conservatism

serves a distinct purpose that is not duplicative of other elements.

The conservatism applied to noncancer risk is primarily in the form of uncertainty factors applied by

authoritative bodies to develop toxicity reference values. Uncertainty factors used to establish toxicity

reference values are present for a reason and the magnitude of the uncertainty factors is based on

chemical-specific considerations. While some chemicals like naphthalene have total uncertainty factors

of 3000 (due to extrapolation for animal studies to human, failure to identify a no effect level, variability

across people, and insufficient information on sensitive endpoints), other chemicals have very small

uncertainty factors of 10 or less. For a handful of chemicals, levels that are known to cause health

effects in people are less than 10 times the level selected as the toxicity reference value.

Conservatism is built into cancer risk by estimating concentrations that would be associated with a

specific level of increased cancer risk (eg. 1 in 1 million). In many cases, this risk level is set using an

upper bound estimate of the dose-response relationship based on observations from higher levels of

exposure in small populations. By taking the upper bound estimate, this approach accounts for

mathematical uncertainty in a cancer risk model. Accounting for mathematical uncertainty in the model

does not do anything to account for exposure at sensitive life stages or additional exposures to

persistent/bioaccumulative chemicals through soil, water or food.

To account for these concerns, DEQ has proposed adjusting cancer RBCs using other adjustment factors

where appropriate. For a subset of cancer causing chemicals that have been demonstrated to increase

cancer risk through a mutagenic mechanism (i.e., chemicals that cause gene mutations), an early life

adjustment factor is used to adjust the RBC. This adjustment accounts for the fact that exposure to


Item G 001382


mutagenic chemicals early in life increases lifetime cancer risk to a much greater extent than exposure

later in life. These adjustment factors are chemical-specific and based on science.

There is also conservatism in exposure assessments. Average values, such as estimates of actual

emissions, are combined with modeling to calculate maximum air concentrations. Following EPA's

general risk assessment approach, the overall combination of average and upper bound estimates of

exposure and toxicity are intended to result in a reasonable maximum estimate of risk. The approach to

risk assessment proposed in the rules is consistent with the approaches used in other state programs.

The levels of conservatism serve an evidence-based purpose and are not duplicative.

In implementation of the program, DEQ and OHA will aim to clearly communicate results of health risk

assessments and explain any assumptions made where appropriate.

DEQ will not make changes to the rules in response to this comment.



Comment Category #282: RBCs - DEHP toxicity

Description: Bis(2-ethylhexyl) phthalate (DEHP) has been inappropriately classified as an inhalation

carcinogen.

Response: CAO used a number of authoritative bodies from which to choose TRVs, and the California

Office of Environmental Health Hazard Assessment is one of them. OEHHA made the determination that

there was enough evidence to support their identification of a cancer-based TRV for DEHP. CAO then

used OEHHA's cancer potency value as a cancer-based TRV for DEHP.

Also, see responses to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use





Comment Category #283: RBCs - DEQ should consider the EPA Framework for

Metals Risk Assessment

Description: DEQ should consider the EPA Framework for Metals Risk Assessment in how we set up our

TRVs, RBCs and risk assessment process.


Item G 001383


Response: The 2007 EPA Framework for Metals Risk Assessment, with the related Issue Paper from 2004

entitled "Issue Paper on the Human Health Effects of Metals", focus on the use of toxicokinetic and

toxicodynamic models, residue-based models, exposure-based toxicity models inhalation dosimetry

methods, bioavailability models, and biomarkers in regard to human exposure to metals. Some of these

methods are not directly applicable to metals which are inhaled, and the methods that are applicable

are used in conjunction with complex assumptions about how metals are absorbed once taken up by the

body, how they break down or are chemical altered, how and in what forms they migrate to various

body organs or organ systems.

DEQ and OHA agree that the uptake of metals into the body and their actual effects on internal systems

is complex and important. Authoritative sources like EPA need to take those factors into account when

developing values that serve as the basis for TRVs. DEQ and OHA must stay within the confines of the

proposed list of TRVs from authoritative bodies. Neither agency has the resources to conduct this type

of primary toxicity work, and instead has chosen to rely on authoritative bodies that do have the

resources to consider these topics in their initial development of the toxicity values we rely on.

Also see response to "RBCs - TRV hierarchy should be changed."




Comment Category #284: RBCs - Don't use chronic or intermediate toxicity

values as acute TRVs

Description: Requested change: Don't use chronic or intermediate toxicity values as acute TRVs. Some

acute TRVs were based on ATSDR values developed to represent safe concentrations for exposure

periods up to 14 days and thirteen (13) of the proposed acute TRVs were based on ATSDR values

developed for intermediate exposure periods up to 364 days. These concentrations should not be

adopted in CAO rule as maximum 24-hr concentrations. DEQ did not use the best available science in

developing acute TRVs. DEQ did not adequately and transparently document the process for selection of

acute TRVs.

Response: DEQ proposes to use chronic or subchronic/intermediate toxicity values from authoritative

bodies as acute Toxicity Reference Values under specified conditions. These situations are not errors or

misrepresentations. In each case, they follow a deliberate process and logic that is transparently

communicated using footnotes in tables and in Appendix A of the Draft Recommended Procedures for

Conducting Toxic Air Contaminant Health Risk Assessments.

Like the authoritative agencies DEQ proposes to use as sources of acute TRVs, DEQ proposes acute Risk

Based Concentrations with a uniform exposure duration to evaluate acute risks consistently across

chemicals and facilities. Using this approach, DEQ can consistently compare short-term exposure to 24-

hr concentrations. If acute RBCs instead used chemical-specific exposure durations more directly tied to


Item G 001384


specific exposure durations of studies underlying each value, then facilities would have to model

concentrations for different chemicals over different exposure durations that matched each chemical's

acute RBC and it would not be possible to evaluate cumulative risk from acute exposure.

DEQ and OHA agree that, where possible, the ideal acute RBCs would be based on studies with 24-hr

exposure durations. However, authoritative bodies are inconsistent in the way they define short-term

exposure durations. These differences occur largely because study design and exposure duration of

studies underlying short-term guidelines are highly variable across chemicals. It is rare for such a study

to be designed with the intent to determine the precise minimum exposure duration that could lead to

an adverse health effect. In many cases, the resolution of the toxicology data is not great enough to

clearly quantify the difference in risk between an hour of exposure, one day of exposure and two weeks

of exposure. In these cases, it is clear that adverse health effects occur following short-term exposure,

but there is a lack of precision in the precise minimum exposure duration required to cause the effect.

For example, the studies underlying Agency for Toxic Substances and Disease Registry’s acute Minimum

Risk Levels range from single exposures lasting a few minutes to continuous exposures up to two weeks.

Despite this range in exposure durations and in recognition of the need for consistency in use, ATSDR

defines its acute MRLs as generally protective of exposures lasting between 24 hours and 14 days. In

contrast, California applies all of its short-term RELs to exposures lasting one hour or less, even though

they rely on studies with similar variability in exposure durations to those used by ATSDR.

To select acute TRVs, DEQ used a hierarchy of authoritative sources that prioritizes values that are most

consistent with a 24-hour exposure duration. In the absence of other sources for short-term exposure

values, the agencies have concluded that applying the intermediate MRL is better than not applying any

short-term RBC at all. There are toxic air contaminants that have intermediate MRLs and no other

noncancer TRVs available from authoritative agencies. If CAO were to refrain from using intermediate

MRLs as acute TRVs in such cases, no noncancer RBCs would be established even though noncancer

effects have been documented following intermediate duration exposures. It would not be sufficiently

protective to apply an intermediate MRL to an RBC for chronic exposure.

For some chemicals, the ATSDR intermediate MRL is based on potential reproductive, endocrine, and/or

developmental effects. Though the experiments that document such effects are typically performed

over intermediate or chronic exposure durations, it is widely acknowledged that developmental effects

can occur following brief exposures that occur during critical phases of development. For example, the

chronic noncancer TRV for benzo(a)pyrene (established by EPA's IRIS program) is based on decreased

embryo/fetal survival. EPA did not apply any uncertainty factor to extrapolate from the 10-day

gestational exposure in the original toxicity study to chronic conditions. The study also did not identify

which of those 10 days is most critical for the effect or whether the entire 10-days of exposure was

necessary to cause decreased fetal survival. Given the potential severity of the effect, it is prudent not to

exceed this toxicity threshold during any part of the fetal development process.

Supporting studies cited by EPA indicate that there is some evidence that benzo(a)pyrene may also alter

the developing brain, which would also be the result of a short-term exposure during a critical

developmental window. Similarly, the National Ambient Air Quality Standard (NAAQS) for lead is based

on a 3-month rolling average (again, less than 1 year) because of its potential to cause permanent

impairment of cognitive function. Studies underlying the NAAQS for lead were not designed in a way to

determine the precise minimum amount of time an individual child would need to be exposed to lead to


Item G 001385


elevate blood lead concentrations to those associated with permanent impairment in cognitive function.

Rather the NAAQS is designed to protect large populations sharing an air shed.

The purpose of CAO is to protect the health of individuals living in proximity to known sources of toxic

air contaminants. Given the importance of short-duration exposures for developmental toxicity, it is

appropriate to apply MRLs developed to protect against developmental effects as an RBC for acute

exposures. Many of the chemicals for which acute and chronic values are the same are based on

developmental effects that could occur over relatively short-term exposures.

Finally, in cases where acute values established by authoritative bodies are lower than the chronic

noncancer TRV for that chemical, the chronic noncancer TRV is applied as an acute TRV instead. This is

done in recognition of the fact that there is generally more confidence in chronic values and that longer

duration exposures would be expected to be at least as harmful as acute exposures at the same level.

This was the case for benzene (ATSDR acute MRL = 29 micrograms per cubic meter vs. EPA IRIS chronic

RfC of 30 micrograms per cubic meter) and selenium.

Also see response to comment category "RBCs - TRV hierarchy should be changed."




Comment Category #285: RBCs - early-lifestage adjustments are not necessary

Description: Cancer risk calculations do not need adjustment for early life stage exposure because the

traditional carcinogen risk assessment model provides for a full lifetime exposure experience, and the

preponderance of scientific evidence does not support the conclusion that these early life stage

adjustments will confer any additional public health benefit relative.

Response: For noncarcinogens, reference concentrations developed by EPA, OEHHA, ATSDR and others

include uncertainty factors to consider potential effects on sensitive members of a population.

Reference concentrations (which often incorporate uncertainty factors) are only developed for

noncarcinogenic effects. Uncertainty factors are not used in the derivation of inhalation unit risk values

for carcinogenic effects, which are the basis for cancer TRVs and RBCs. Because TRVs for noncarcinogens

and carcinogens are developed separately, consideration of sensitive members for noncancer effects

has no bearing on the consideration of sensitive members for carcinogenic effects.

For carcinogens, DEQ agrees with EPA that a calculated excess cancer risk is an upper-bound estimate

such that regulatory agencies are reasonably confident that the true risk will not exceed the calculated

risk estimate. This is an appropriate regulatory approach to establishing cancer-based values intended to

protect public health. DEQ also accepts EPA guidance for potency adjustments for carcinogens acting

through a mutagenic mode of action. This guidance recommends that, for such chemicals, a default


Item G 001386


approach should be used that modifies estimates from chronic studies with appropriate factors to

address the potential for differential risk of early-lifestage exposure.

It is EPA’s long-standing science policy position that use of the linear low-dose extrapolation approach

for carcinogenic chemicals (without further adjustment) provides adequate public health conservatism

in the absence of chemical-specific data indicating differential early-life susceptibility. In 2005, EPA

recommended age-dependent adjustment factors for carcinogens acting through a mutagenic mode of

action based on a combination of analysis of available data and their science policy position. In contrast,

South Coast Air Quality Management District considers it appropriate to apply early-life adjustments to

all carcinogenic chemicals.

As noted in one of the comments, most animal studies evaluate lifetime cancer risk beginning after the

animals reach sexual maturity. The cancer slope factors or inhalation unit risk values derived from such

studies are therefore most appropriately applied to a lifetime of human exposure as an adult. The

specific exposure duration value applied to a human lifetime (such as 70 years) is not important if a

lifetime of exposure is being evaluated, such as for residential exposure in the CAO program. Exposure

duration and averaging time are the same for a lifetime, so the values cancel out in the calculation of

risk.

What is important is the fact that increased risk from early-life exposure was missing from the older

approach. DEQ considers it important to account for this missing risk to infants and children in

calculating RBCs for carcinogens acting by a mutagenic mode of action. DEQ acknowledges that at a risk

action level of 50 excess cancers in a million, this level of protection cannot be measured in a human

population. The goal of public health is to prevent health outcomes that would be measurable in the

population. Risk should be determined using the best available method, which since 2005 includes a

consideration of early-life exposure.

Early-life adjustment factors used to calculate cancer RBCs are presented in Table B-1 of the draft risk

assessment recommended procedures document. Derivation of early-life adjustment factors is

presented in Appendix C of the procedures document.




Comment Category #286: RBCs - endocrine-disrupting chemicals

Description: The rules should take into account endocrine disruption, and non-linear dose-response

curves.

Response:

OHA and DEQ agree that some toxic air contaminants may have endocrine disrupting effects and that

dose-response relationships for those effects may be non-linear. However, there is no clearly


Item G 001387


established scientific guidance for how best to account for these types of risk in the standard risk

assessment process and most chemicals currently in commerce have never been tested for potential

endocrine effects.

To the extent possible with existing data, CAO is designed to prevent the most sensitive endpoints in

sensitive populations. For some chemicals, CAO based proposed TRVs on endocrine effects or

reproductive and developmental effects that may be caused by endocrine disruption. As federal and

state agencies learn from new scientific research, and develop hazard and risk assessment frameworks

to better account for non-linear or non-monotonic dose-responses curves, new science may be

incorporated into CAO. The proposed CAO rules provide for triennial reviews for TRVs and RBCs. These

triennial reviews will be opportunities every three years for DEQ and OHA toxicologists to review and

incorporate progress made by other agencies and the scientific community into the TRVs and RBCs used

in CAO.

Many endocrine-disrupting toxic air contaminants are of particular concern because of their potential to

cause reproductive and developmental health effects. Risk management decisions in CAO may be more

cautious for chemicals with potential developmental toxicity. Toxic air contaminants that are known to

cause developmental or other severe health effects will be identified with the help of the Hazard Index

Technical Advisory Committee. This volunteer committee of experts gathered by DEQ is due to meet

during the Fall of 2018 and has been assembled to address toxic air contaminants with developmental

or other severe health effects. The toxic air contaminants identified by HI TAC will be held to lower

(more stringent) RALs, as stipulated in Senate Bill 1541, through a separate public rule-making process.






Comment Category #287: RBCs - Errors in Tables 3 and 5

Description: The Errors in Tables 3 and 5 Should Be Revised and Renoticed

Response:

DEQ corrected errors to notes and footnotes in the tables. DEQ also corrected an error in the TCE RBC

calculation. In addition to correcting errors, DEQ revised the TRV and RBC tables, including:

• the approach for determining TRVs was revised based on comments on the initial draft rules;

• rounding of values was more explicitly explained and implemented,


Item G 001388


• the calculation of non-resident adjustment factors (NRAFs) was modified to incorporate an exposure

frequency of 5 days/week for 50 weeks, or 250 days/year (instead of 260 days/year) for workers, and

children in school/daycare.

DEQ presented the revised TRVs and RBCs in revised draft rules, and made available for public review.

DEQ included an Excel spreadsheet to aid in public review of the calculations. The tables are now

numbered Table 3 for TRVs and Table 4 for RBCs.




Comment Category #288: RBCs - ethylene oxide

Description: Commenter does not want the EPA IRIS cancer-based URE value for ethylene oxide to be

used as the basis of the ABC, and hence the CAO TRV.

Response: Air Toxics Science Advisory Committee chose the IRIS URE value as the basis of the Ambient

Benchmark Concentration for ethylene oxide, as well as evaluating other related toxicity values from

traditional authoritative sources of toxicity values. Cleaner Air Oregon, using the adopted ABCs as the

most-current Toxicity Reference Value available, will also use the IRIS URE as the basis of the TRV for

ethylene oxide.

DEQ and the Oregon Health Authority draw CAO TRVs from recommendations made by the ATSAC and

from widely recognized authoritative sources, including IRIS. These authoritative agencies have the

resources to conduct systematic and comprehensive reviews of all relevant individual toxicological

studies. It is not scientifically defensible to base a toxicity value on a single individual study in the

absence of the context provided by such a comprehensive evaluation of the overall weight of evidence

and degree of consensus in the scientific community.

Therefore, OHA and DEQ rely on agencies that have the resources to make such systematic evaluations.

For OHA and DEQ to engage in that same level of review would be costly to the state and duplicative of

work already done by these agencies. Criticisms of EPA's URE for ethylene oxide would be more

productively shared with EPA.







Item G 001389


Comment Category #289: RBCs - Exposure factors used to calculate RBCs are

unnecessarily conservative

Description: This category of comment asserts that chronic RBCs in proposed rules were calculated

assuming that people are exposed to toxic air contaminants more frequently and for longer periods of

time than is reasonable. This category of comments urges DEQ to assume that residents spend less than

24 hours per day/7 days per week at home and that they live near a source of toxic air contaminants for

less than 70 years (recommendations ranged from 8 years to 30 years). The category also urges DEQ to

assume that concentrations of toxic air contaminants indoors are less than outdoors and to account for

time spent indoors accordingly when calculating RBCs. DEQ's Human Health Risk Assessment Guidance

and EPA's 2011 Exposure Factors Handbook are cited as references supporting these recommendations.

Response: DEQ and OHA agree that it is statistically rare for an individual to live in the same residence

for a full 70-year lifetime. However, the objective of Cleaner Air Oregon is that any individual can live

next to any industrial point source of toxic air contaminants for a lifetime without facing unacceptable

health risks. Assuming a 70-year exposure duration across the state in cancer risk assessment assures

that an individual can move from a residential property impacted by one industrial point source to a

residential property impacted by another industrial point source elsewhere in the state and enjoy the

same level of protection.

Even if an individual moves somewhere with no impacts from industrial point sources, they will still be

exposed to toxic air contaminants from other common sources, such as mobile sources, residential

wood burning, and or area sources. This is what sets risk assessments in CAO apart from risk

assessments for Superfund and other clean-up sites for which the cited guidance documents were

designed. While soil, sediment, and groundwater contamination pose risks that can be avoided by

moving away, there is no where an individual can move to that will have no impacts from toxic air

contaminants from some source or another.

Several federal and state toxic air contaminant programs assume a 70-year exposure duration. These

include EPA's National Air Toxics Assessment (NATA) program; Oregon's immediate neighbors,

Washington and Idaho; Louisville, Kentucky's STAR program; New Jersey; New York; Massachusetts;

Georgia; Minnesota; Michigan; Maryland; North Dakota; and North Carolina assumes 78 years.

While it is rare for most people to spend 100% of their time at home, those who do often suffer from

serious health conditions, some of which could make them exceptionally vulnerable to the effects of

toxic air contaminants.

DEQ and OHA did not identify any state toxic air contaminant programs that incorporated risk-mitigating

adjustments into risk assessments on the basis of time spent indoors. A growing body of evidence

suggests that, in many cases, indoor air quality may be worse than outdoor quality due to the release

and trapping of VOCs and other contaminants from indoor sources. The public health recommendation

to improve indoor air quality is to increase ventilation with air from outdoors. See

(https://www.epa.gov/indoor-air-quality-iaq/inside-story-guide-indoor-air-quality). Thus, the quality of

outdoor air should be such that indoor air quality problems are not further exacerbated.


Item G 001390





Comment Category #290: RBCs - Fluoride / hydrogen fluoride

Description: DEQ should use the TCEQ value for the fluoride (aka hydrogen fluoride) TRV/RBC.

Response: DEQ and the Oregon Health Authority use widely recognized peer-reviewed authoritative

sources from which to draw the TRVs. The Texas Commission of Environmental Quality is not included in

this group.

Also see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use





Comment Category #291: RBCs - formaldehyde toxicity

Description: The Formaldehyde RBC is not based on best available science. Formaldehyde should be

considered to have a threshold below which it is not carcinogenic.

Response: The formaldehyde cancer Risk Based Concentration is based on the new DEQ ABC for

formaldehyde, which was established based on recent recommendations by the Air Toxics Science

Advisory Committee. The ATSAC value is based on cancer risk values originally set by OEHHA.

The World Health Organization is not included as an authoritative source for TRVs in CAO because

WHO’s International Agency for Research on Cancer does not typically establish quantitative cancer risk

estimates. IARC’s monograph on formaldehyde concludes that formaldehyde is carcinogenic to humans

(i.e., it is listed as a “Group 1” carcinogen), but does not quantify the risk at specific levels of exposure

because that is not a standard part of the IARC process.

Commenters refer to a 2010 WHO document which sets an indoor air quality guideline of 100

micrograms per cubic meter. That guideline is based on the assumption that formaldehyde cancer

effects occur via a threshold response, rather than a linear dose-response. The assumption of a

threshold below which there is no cancer risk represents a departure from standard cancer risk methods

and there is debate in the scientific community around whether or not such an assumption is

appropriate.


Item G 001391


The ATSAC recently advised DEQ to use a toxicity value for formaldehyde based on a linear, no-threshold

approach. The Committee defends its conservative decision-making as being consistent with the

directive of the State statute and with its need to rely on the use of trusted authoritative U.S. agencies.

These authoritative agencies make decisions based on the context of population exposure and risk

similar to those faced by people in Oregon.

While the WHO approach to indoor air quality guidelines does represent an emerging approach for

evaluating risk, this approach is not widely embraced and has not been adopted by IRIS or California

OEHHA. In future reviews of benchmark values, a decision-making approach can be devised that could

include the possible use of non-linear approaches to the analysis of cancer risk to populations.

The ATSAC is a volunteer body of experts who contribute their time and expertise to the committee. The

range of expertise on the committee is stipulated in the enabling State legislation. The ATSAC’s charter,

which the DEQ drafted and the ATSAC approved unanimously on Jan. 21, 2015, prompts the ATSAC not

to conduct their own primary review, such as attempting to consider the entire universe of toxicology

studies and papers for a particular chemical before selecting an ABC, or to calculate their own inhalation

unit risk estimate (URE).

Similarly, the DEQ is a state agency with limited resources and staff, and therefore cannot conduct

comprehensive reviews of all available evidence for a particular chemical, nor develop their own URE.

Nor can DEQ simply accept toxicological information provided by commenters, because it may or may

not contain all relevant information or be fully representative of the state of the science. That is why the

ATSAC and DEQ obtain UREs from an identified list of acceptable, recognized authoritative agencies that

are sufficiently resourced to conduct comprehensive reviews of available scientific information.

Input on the threshold model for the carcinogenicity of formaldehyde would more productively be

shared with authoritative agencies from which OHA and DEQ select TRVs such as the US EPA, ATSDR, or

California EPA. For OHA and DEQ to do the same level of systematic, comprehensive reviews of the

scientific literature to ascertain the overall weight of evidence and degree of scientific consensus on this

issue would be costly to Oregon taxpayers and duplicative of a service already provided by these

authoritative agencies.



(see p140 http://www.euro.who.int/__data/assets/pdf_file/0009/128169/e94535.pdf)




Comment Category #292: RBCs - further review of RBCs and TRVs


Item G 001392


Description: Commenters asked the DEQ and OHA to conduct further scientific review of RBCs and TRVs

and expressed concerns about calculations related to derivation of RBCs from TRVs.

Response: DEQ and OHA rely on better resourced authoritative agencies for the selection of toxicity

reference values and their associated health effects. These agencies, like US EPA's IRIS program and the

Agency for Toxic Substances and Disease Registry are able to conduct systematic and comprehensive

reviews of many individual toxicological studies. This allows them to evaluate the overall weight of

evidence and degree of consensus in the scientific community when selecting the critical studies upon

which toxicity values are based. The use of authoritative sources provides confidence in the

appropriateness of the selection of toxic air contaminants, and their associated toxicity values and

health endpoints.

The selection of factors to calculate Risk Based Concentrations, such as ADAFs and MPAFs, follow

established risk assessment procedures established by the same authoritative sources that DEQ and

OHA rely on for toxicity values. DEQ revised some exposure assumptions based on public comments. For

example, the calculation of non-resident adjustment factors was modified to incorporate an exposure


also children in school/daycare. Toxicologists at DEQ and OHA reviewed the selection of TRVs and the

calculation of RBCs.

Specific comments regarding attachments about RBCs, which were previously submitted for related

ABCs, are addressed in other comment responses.




Comment Category #293: RBCs - hexamethylene-1,6-diisocyanate - acute

noncancer

Description: The intermediate ATSDR MRL for hexamethylene-1,6-diisocyanate is an MRL which has a

related exposure period of 15 to 364 days, and so should not be used as an acute TRV by CAO for this

chemical. Using an intermediate value to evaluate an exposure period of 24 hours or less dramatically

overestimates the risk to the public for an exposure at that concentration.

Response: The toxicological study underlying Agency for Toxic Substances and Disease Registry's

intermediate Minimal Risk Level was conducted in rats. Exposures were administered five hours per day,

five days per week for a three-week period. While the critical effect of nasal hemorrhage and epithelial

inflammation could not be measured microscopically until after the animals were sacrificed at the end

of the study, authors noted that all animals showed signs of nasal and eye irritation during each five-

hour exposure and for one hour following each exposure over the course of the three weeks.


Item G 001393


This indicates that animals were visibly distressed almost immediately upon exposure. As is the case

with most toxicological studies, this study was not designed to determine the precise minimum amount

of time necessary to cause the health effect. However, clinical signs of distress in the animals provide

some clue that the full three weeks of exposure may not have been necessary to cause the critical

effect.

OHA and DEQ chose acute ATSDR MRLs as the basis for acute Toxicity Reference Values wherever

available because exposure durations in the underlying studies more closely match the 24-hour

exposures applied in CAO. However, in the absence of an acute MRL, intermediate MRLs provide

valuable information about health effects that have been documented to occur over exposure times less

than one year. Since the underlying studies often do not determine the precise minimum duration of

exposure necessary to cause the critical effect, they are a reasonable basis for acute TRVs in these cases.






Comment Category #294: RBCs - Insufficient support for TRVs

Description: Commenter states that there is a lack of transparency, lack of documentation, and errors

associated with the TRVs in Table 3, the Adjustment Factors in Table 4 and the RBCs in Table 5 of the

proposed rules.

Response: DEQ and OHA have worked to be transparent throughout the rulemaking process by

identifying the sources of toxicity values in the draft rules, and further presenting them in the draft

Recommended Procedures for Conducting Toxic Air Contaminant Health Risk Assessments document.

Originally, a hierarchy of the authoritative sources of toxicology information was proposed, and this has

been modified based on public comment so that for each chemical CAO uses the most recent toxicity

values from that set of authoritative sources. For the approximately 260 chemicals for which Toxicity

Reference Values were developed, details about specific toxic effects can be obtained directly from the

authoritative source referenced in the rules. DEQ is also preparing a summary table of target organs for

noncarcinogenic effects which will be included in the risk assessment procedures document.

Commenters identified several errors in earlier drafts of Tables 3 to 5, which we have corrected. DEQ

continues to be transparent about the TRV and RBC process by providing the public with a detailed

spreadsheet showing all the toxicity values considered, and the calculations performed. Further

documentation is provided in the draft risk assessment procedures document.




Item G 001394



Comment Category #295: RBCs - lead toxicity

Description: Lead is not treated with evidence based risk assessment assumptions. Also, NAAQS for lead

already includes early life stage adjustment, so should not then again add a second life stage adjustment

when converting TRV to RBC.

Response: DEQ updated the current proposed rules to include revised tables of Toxicity Reference

Values (Table 3) and Risk Based Concentrations (Table 4) to more closely reflect ATSAC decisions about

cancer risk. In cases where the Agency for Toxic Substances and Disease Registry chose not to support

the use of a cancer-based TRV for a chemical, as is the case for lead, no cancer TRV was selected. The

revised TRV table now includes only a non-cancer TRV for lead. The non-cancer TRV is based on the non-

cancer value selected by ATSAC, which is the same as the NAAQS value.

Early-life adjustment factors in Cleaner Air Oregon are used to adjust for magnified cancer risk from

early life exposure to mutagens. Even if cancer risk were considered for lead under Cleaner Air Oregon,

the early-life adjustment factor would not have been applied in cancer risk calculations because EPA has

not identified it as a carcinogen acting by a mutagenic mode of action.

Also, see response to comment category "RBCs - TRV hierarchy should be changed" and "RBCs - use





Comment Category #296: RBCs - make ATSAC process more transparent

Description: ATSAC meetings should allow more participation from the public and industry; should be

much more transparent in how they choose their values and provide better documentation of the

process, including sources used; and provide meeting materials ahead of each meeting. Also, ATSAC

should consider more comprehensive use of the primary literature in their choosing the Ambient

Benchmark Concentrations, as was done by the ATSAC in their evaluation of toxicity information for

diesel particulate matter.

Response:

This comment is outside the scope of CAO rules. However, DEQ is committed to transparency and will

consider these comments for future Air Toxics Science Advisory Committee meetings.

The role of ATSAC in contributing to Toxicity Reference Value selection is indirect. DEQ, not ATSAC, is

included as an authoritative source for TRVs. Recent recommendations from ATSAC were used in the


Item G 001395


selection of the initial set of TRVs because the recommendations had been adopted by DEQ, and DEQ is

an authoritative source. However, ATSAC itself is not an authoritative source and is not the only

mechanism DEQ may use to establish values in the future.

OARS 340-246-0070(1)(a) states that one of ATSAC's roles is to "Review ambient benchmarks for the

state air toxics program." OARS 340-246-0090(1) states that "...Ambient benchmarks are not regulatory

standards, but reference values by which air toxics problems can be identified, addressed and

evaluated..." OARS 340-246-0070(1) states that "...[ATSAC] will not provide risk management or policy

recommendations..."

DEQ proposed Risk Based Concentrations in CAO as regulatory standards and they, along with the CAO

program itself, are new policy decisions proposed by DEQ. This sets TRVs and RBCs apart from ambient

benchmark concentrations described in existing rule and sets TRVs and RBCs, along with the proposed

CAO program outside the scope of ATSAC established in existing rule.

ATSAC was established in the absence of a program like CAO for non-regulatory and non-policy

purposes. If a committee like ATSAC were to advise DEQ on CAO-related topics, it would need a new

stated purpose in rule and additional resources to support the much larger scope proposed under CAO.

DEQ values ATSAC for its expertise and past contribution to its non-regulatory air toxics program. While

DEQ proposed TRVs and RBCs consistent with ATSAC recommendations for all 52 air toxics on which

ATSAC has deliberated, DEQ proposed TRVs and RBCs independently of ATSAC.

CAO is consistent with ATSAC recommendations and general policy in that DEQ's proposed set of

authoritative bodies is the same set used by ATSAC (US EPA, ATSDR, and California OEHHA). ATSAC has

only recommended a toxicity value for adoption as an ambient benchmark concentration from sources

other than those three authoritative bodies on 2 occasions, and CAO rules as proposed afford DEQ the

flexibility to make similar adaptations as necessary since DEQ is included in the list of authoritative

bodies. DEQ has access to staff toxicologists both within DEQ and at OHA, one of which is a current

member of ATSAC.As a volunteer committee, ATSAC has never and could never match the level of

scientific rigor employed by the authoritative bodies proposed in rule.

For example, consider the process that Agency for Toxic Substances and Disease Registry follows to

develop each of its Minimal Risk Levels. ‘Proposed MRLs undergo a rigorous review process. They are

reviewed by the Health Effects/MRL Workgroup within the Division of Toxicology and Human Health

Sciences; an expert panel of external peer reviewers; the agency wide MRL Workgroup, with

participation from other federal agencies, including EPA; and are submitted for public comment through

the toxicological profile public comment period.’ (ATSDR's website

https://www.atsdr.cdc.gov/mrls/index.asp):

Similarly, exhaustive scientific review processes exist for each of the other authoritative bodies

proposed as sources of TRVs in CAO. This is exactly why most states with existing health risk-based air

toxics programs use toxicity values developed by these same authoritative bodies. It is not realistic or

necessary for any volunteer committee in Oregon to achieve the same level of scientific review and rigor

as these much better resourced agencies. To engage in the same level of scientific review in Oregon

would require a large investment in public resources and be duplicative of work already done by the

agencies proposed for use as authoritative bodies in CAO draft rules.


Item G 001396





Comment Category #297: RBCs - Manganese - acute noncancer

Description: Requested change: Eliminate the acute RBC for manganese from the rules

Response: The proposed acute RBC and TRV for manganese incorporates the advice of technical peer

reviewers in that a multiplication factor was applied. The technical reviewer provided example

multipliers of x2, x4, x6. Note the multiplier applied (the square root of 10, or approximately 3) is within

the range suggested by the technical reviewer of the Short-term Guideline Concentrations. OEHHA's

chronic REL is not based on a chronic study, but rather a subchronic study, including exposures as short

as 0.2 years or approximately 2.4 months, indicating that effects can be measured following exposures

substantially shorter than one year. In fact, OEHHA applied the uncertainty factor of the square root of

10 precisely because the underlying study was not a chronic study, but rather a subchronic study.

See the following excerpt from the agency's response to technical peer reviewers: "The originally

proposed 24-hour screening level for manganese was identical to the Oregon ABC, which was based on

an RfC developed by OEHHA. The critical study (Roels 1992) is an epidemiological study of occupationally

exposed workers with neurological effects as the critical endpoint. The duration of exposure in the

critical study ranged from 0.2 – 17.7 years. OEHHA applied an uncertainty factor (the square root of ten)

to extrapolate from subchronic to chronic exposures. This study was not designed to determine the

minimum exposure duration necessary to cause the neurological changes measured as the critical

endpoint. While the critical study did not evaluate neurodevelopmental endpoints in children,

supporting studies cited by OEHHA indicate that manganese has the potential to impair

neurodevelopment. OEHHA applied additional uncertainty factors to address this potential."

It is the potential for impairment to neurodevelopment in children that makes the acute TRV for

manganese important. Very short-term exposures during critical windows of development can cause

permanent neurological deficits that individuals may have to live with throughout their lives. It is these

kinds of permanent outcomes that this acute TRV for manganese aims to prevent. Note that the same

technical reviewers were given an additional opportunity to review the agency response to their first set

of comments and none responded in opposition to the state agencies' final treatment of the short-term

guideline concentration proposed as an acute TRV for manganese.

While DEQ appreciates that additional peer-reviewed literature is available related to the toxicity of

manganese, incorporating these studies would require the agency to systematically and

comprehensively review the scientific literature to determine whether the subset of studies provided by

the commenters is representative of the total body of literature and overall weight of evidence that

exists. Such a review would be resource intensive and duplicative of work already carried out by


Item G 001397


agencies like the EPA, ATSDR, and OEHHA that have both more resources and deeper and broader

expertise to carry out this work. Therefore, DEQ will continue to rely on conclusions of the authoritative

sources named in the rule as the basis for TRVs.

The agency proposed policy, which is to not use acute toxicity values lower than the related chronic

toxicity values, applies to toxicity reference values (TRVs) (Table 3 of rules) rather than RBCs (Table 4).

Agencies have been consistent with this policy in that no acute TRVs are lower than their chronic

noncancer TRVs. Chronic noncancer TRVs are modified to account for exposure frequencies that are less

than 24 hours per day, 7 days per week in order to generate RBCs for nonresidential settings such as

workers and school children. In cases where the acute TRV is equal to or only slightly higher than the

chronic TRV, this can result in nonresidential chronic RBCs that are higher than acute RBCs, which are

not adjusted for exposure frequency from their TRVs.






Comment Category #298: RBCs - Manganese - chronic noncancer

Description: A different value should be used for the TRV and RBC for chronic noncancer risk from

Manganese.

Response: DEQ and OHA chose to draw their toxicity reference values from a list of authoritative

sources, the most-current of these sources being the recently-adopted Ambient Benchmark

Concentrations (ABCs) recommended by the Air Toxics Science Advisory Committee. This includes the

ABC -- now the TRV -- for Manganese. The ATSAC used traditional authoritative sources in almost all

cases, and chose TRVs from among them based on what the committee thought was the best,

defensible science. In many cases, this did not mean that the ATSAC chose the most-current available

value, but rather chose the value that they thought was most credible. In the case of the manganese

ABC, the ATSAC considered the ATSDR value, but decided against using it. Therefore, DEQ and OHA

decline to revise the ABC for Manganese.







Item G 001398


Comment Category #299: RBCs - manganese risk assessment should only

consider particles < 5 microns

Description: Only manganese in the respirable fraction (defined as particles 5 microns in size or less)

should be considered when doing a risk assessment.

Response: DEQ and OHA agree with this commenter and no change to the rules is necessary. Neither

the proposed rules nor the Draft Recommended Procedures for Conducting Toxic Air Contaminant

Health Risk Assessments specify the particle size distribution that must be assumed in a facility's

emissions inventory, modeling, or risk assessment. This lack of specificity in rule and guidance allows

flexibility for DEQ and facilities to determine the most appropriate particle size distribution to capture in

emissions inventory or ambient monitoring for use in risk assessment for each contaminant.

The objective of DEQ and OHA is accurate assessment of risk, which includes a determination of the

ambient concentration of metals from a facility in the size fraction that most closely matches the size

associated with adverse health effects. DEQ and OHA agree that the toxicity reference value for

manganese is based on the respirable particle size fraction and that it is reasonable to model or measure

this size fraction for assessment of risk through the inhalation pathway.

For metals for which multi-pathway risk (i.e. risk from routes of exposure other than inhalation) are

applicable, it may be important to estimate or measure deposition of additional size fractions that could

contribute to exposure through pathways other than inhalation. As currently proposed, the rules and

protocol allow for flexibility for these details to be worked out between DEQ and individual facilities on a

case-by-case basis during the approval processes for emissions inventories, modeling protocol

approvals, monitoring plans, and risk assessment work plans.




Comment Category #300: RBCs - methylenediphenyl diisocyanate (MDI)

Description: The American Chemistry Council provided a copy of the letter that they submitted to

ATSDR, arguing with ATSDR about the inadequacy of their Minimal Risk Level choice for both Toluene

diisocyanates and methylenediphenyl diisocyanate.

Response: DEQ understands that the American Chemistry Council disagrees with the Minimal Risk Level

that ATSDR has chosen for toluene diisocyanates (TDI) and methylenediphenyl diisocyanate, and so by

extension disagrees with DEQ's use of the ATSDR value as a TRV for TDI. Neither DEQ nor OHA has the

funding or resources to evaluate the complete universe of toxicological information available for a


Item G 001399


chemical, and so depends on better-resourced authoritative agencies for toxicity values (including

ATSDR).

Most state agencies with health/risk-based toxic air contaminant programs use ATSDR as an

authoritative source of toxicity information. It is important that toxicity values are informed by the

overall weight of evidence and degree of consensus in the scientific community. Evaluation of this

broader context around the science for individual toxic air contaminants is best done by agencies with

the resources and expertise to do so. For DEQ or OHA to engage in the same level of review would be a

considerable cost to the taxpayers of Oregon and would be duplicative of work already done by the

agencies (such as ATSDR) recognized by DEQ and OHA as authoritative.






Comment Category #301: RBCs - multipathway adjustment factors are

inappropriate

Description: Required use of multipathway adjustment factors lacks sufficient evidence to be used

beyond a screening process. MPAF assumptions are inappropriate and should be revised.

Response: DEQ and OHA consider Multi-Pathway Adjustment Factor values to be appropriate for initial

screening of emissions. Because the role of environmental and public health agencies is to protect public

health, agencies typically use reasonable maximum values screening assumptions. Any proposed

modification of these values, which will need to be reviewed by DEQ, necessarily involves a detailed

presentation that is most appropriate in a Level 4 risk assessment. The MPAFs previously presented in

Table 4 of the initial draft rules are still used, but are now presented in Appendix B of the draft

Recommended Procedures for Conducting Toxic Air Contaminant Health Risk Assessments.

Regarding comments on inapplicability of South Coast Air Quality Management District MPAFs to CAO

Risk-Based Concentrations, SCAQMD MPAFs are not based on the toxicity values used by California.

SCAQMD modifies their toxicity values using MPAFs. When applying MAPFs, it is not relevant that CAO

toxicity values are different than California's values. According to SCAQMD Risk Assessment Procedures

for Rules 1401, 1401.1, 212 (Aug. 2017), MPAFs were developed using the Risk Assessment Standalone

Tool (RAST), which is a software package. DEQ and OHA chose to use SCAQMD's MPAFs as developed

with RAST, and apply them to our adjustments of relevant Toxicity Reference Values to generate RBCs

that are sufficiently health-protective. SCAQMD uses their MPAFs in conjunction with toxicity values to

calculate the Maximum Individual Cancer Risk for each chemical.


Item G 001400


Regarding comment that soil ingestion exposure assumptions incorporated into the MPAFs are more

stringent than soil ingestion exposure assumptions used by DEQ's cleanup section and recommended by

USEPA, DEQ agrees that the assumptions are different and more stringent than the other two sources.

DEQ and OHA chose to use SCAQMD's MPAFs as they are. Oregon's agencies do not have a comparable

sophisticated risk assessment package such as RAST. The state did not consider it worth the time and

resources to develop state-specific MPAFs for approximately 30 chemicals (see Table B-1 in the CAO

Draft Recommended Procedures for Conducting Toxic Air Contaminant Health Risk Assessments), so

instead DEQ is relying on the experience of a considerably larger state toxic air contaminant program.

Site specific modifications can be made in Level 4 risk assessments.




Comment Category #302: RBCs - Nickel

Description: Chronic cancer RBC for nickel should be updated to exclude metallic nickel.

Cancer RBC for certain nickel compounds should be based on a threshold rather than linear approach.

Some adjustments to noncancer RBCs for nickel also suggested.

Response: After reviewing nickel toxicity information available from the listed authoritative bodies, the

ATSAC recommended ABCs for both insoluble and soluble nickel compounds based on OEHHA’s

Consolidated Table of OEHHA/ARB Approved Risk Assessment Health Values. The cancer-based ABC for

insoluble nickel compounds is based on an inhalation unit risk value published by OEHHA in 1991; the

ABC for noncancer-based soluble nickel compounds is the noncancer chronic inhalation value published

by OEHHA in 2012.

The details of the cancer-based OEHHA inhalation unit risk value are presented in the State of California

Air Resources Board “Initial Statement of Reasons for Rulemaking: Proposed Identification of Nickel as a

Toxic Air Contaminant” Staff Report dated June 1991. The Staff Report clearly states that metallic nickel

is included under the category of nickel and nickel compounds, with a related inhalation unit risk value

of 2.6 x 10-4 per ug /m3. When this value is used to generate an ABC that is protective to a 1-in-1-million

excess cancer risk, the resulting ABC is 0.0038 ug/m3, or 0.004 ug/m3 when rounded up.

In a discussion on Jan. 26, 2018 with a senior toxicologist with OEHHA, he stated that OEHHA believes

that its inhalation unit risk value is still sufficiently protective of human health, and does not believe that

a new comprehensive evaluation of nickel information is currently warranted. The Staff Report calls out

the IARC’s classification of nickel compounds as “causally associated with cancer in humans”, and stated

that all nickel compounds should be considered potentially carcinogenic to humans by inhalation. The

Staff Report also asserted that there is “an association between respiratory cancer mortality and nickel

exposure.” The California Department of Health Services staff found this association to be consistent,


Item G 001401


reliable, of substantial magnitude, and having a clear dose-response relationship with high statistical

significance. DHS staff further concluded that based on available genotoxicity data, carcinogenicity data

and physicochemical properties of nickel compounds, all nickel compounds should be considered

potentially carcinogenic to humans by inhalation and total nickel should be considered when evaluating

the risk by inhalation.

IARC (1990) and the International Committee on Nickel Carcinogenesis in Man (ICNCM, 1990) indicated

that the epidemiological evidence points to insoluble and soluble nickel compounds as contributing to

the cancers seen in occupationally exposed persons. Currently, the IARC Monograph on Nickel and

nickel compounds updated in 2017 concludes that in view of the overall findings in animals, there is

sufficient evidence in experimental animals for the carcinogenicity of nickel compounds and nickel

metals. In addition, the National Toxicology Program’s 14th Report on Carcinogens (2016) states that:

“Nickel and Certain Nickel Compounds were listed in the First Annual Report on Carcinogens (1980) as

reasonably anticipated to be human carcinogens. Nickel compounds as a class were first listed as known

to be human carcinogens in the Tenth Report on Carcinogens (2002); this listing supersedes the listing of

“certain nickel compounds” and applies to all members of the class. Metallic nickel was reevaluated in

2000 and remains listed as reasonably anticipated to be a human carcinogen.”

Currently, IRIS lists the inhalation unit risk for nickel refinery dust, assumed to contain nickel subsulfide,

nickel oxide, and metallic nickel, of 2.4 x 10-4 per ug/m3 (last revised by IRIS in 1987). This inhalation

unit risk value nearly matches the inhalation unit risk value published by OEHHA: thus, IRIS and OEHHA

are in agreement about the inhalation risk unit.

Thus, although additional toxicity information on various forms of nickel has become available in the last

10 to 15 years (Oller et al., 2008, 2009, 2014; Goodman et al., 2011; Sivulka, 2005; Buekers et al. 2015;

Haney et al., 2012 to name a few) outside of the authoritative bodies listed above, DEQ cannot assume

without conducting its own comprehensive review of nickel toxicity information that the references

used by the commenter provide an inclusive, balanced grouping of all scientific studies available for

nickel and nickel compounds.

There is some evidence supporting a threshold, rather than a linear-no-threshold, approach to cancer

risk assessment for nickel. However, within the scientific community there remains considerable

controversy in the evaluation of cancer risks posed to human populations, including the mode of action

of carcinogenic effects. Goodson et al, 2015, for example, provides evidence that out of studies

performed on 85 chemicals, 50 (59%) exerted low-dose effects, while only 13 (15%) were found to have

a dose-response threshold, and the remaining 22 (26%) had no dose-response information. Input on

alternate TRVs for nickel or nickel compounds or alternate approaches to cancer risk assessment such as

a threshold model would more productively be shared with authoritative agencies from which OHA and

DEQ select TRVs such as the US EPA, ATSDR, or California EPA. For OHA and DEQ to do the same level of

systematic, comprehensive reviews of the scientific literature to ascertain the overall weight of evidence

and degree of scientific consensus on this issue would be costly to Oregon taxpayers and duplicative of a

service already provided by these authoritative agencies.

DEQ is a state agency with limited resources and staff, and therefore cannot conduct comprehensive

reviews of all available evidence for a particular chemical, nor develop their own URE. Nor can DEQ

simply accept toxicological information provided by commenters, because it may or may not contain all


Item G 001402


relevant information or be fully representative of the state of the science. That is why the DEQ obtains

UREs from an identified list of acceptable, recognized authoritative agencies that are sufficiently

resourced to conduct comprehensive reviews of available scientific information.

Note that the TRV selections for nickel and nickel compounds in CAO are consistent with the

recommendations of the Air Toxics Science Advisory Committee (ATSAC).






Comment Category #303: RBCs - Nickel - compounds not accurately categorized

as soluble or insoluble

Description: Some nickel compounds in the RBC list are inaccurately categorized as soluble or insoluble.

DEQ should have proposed a cancer-based TRV for some of the soluble nickel compounds.

Response: The TRVs for soluble and insoluble groupings of nickel compounds are based on the ABCs

recommended for these two nickel groupings by the Air Toxics Science Advisory Committee circa 2015.

These ABCs were adopted into rule in early 2018, and were thus used as the most-current, vetted values

available for Cleaner Air Oregon's choice of TRVs for nickel compounds. During its review, the ATSAC

discussed at length why certain nickel compounds should be grouped in either the soluble or insoluble

nickel categories. Although the ATSAC acknowledged that certain soluble nickel compounds are slightly

carcinogenic, while as a group soluble nickel compounds are assumed to be non-carcinogenic, the

committee determined that these chemicals were more logical to group in the soluble nickel category.




Comment Category #304: RBCs - Noncancer HIs should be added across more

narrowly defined outcomes

Description: Non-cancer risks should be calculated by adding HQs across a more narrowly defined set of

health outcomes. Rather than adding all effects on a specific target organ, effects should be added

according to specific mechanistic targets.


Item G 001403


Response: The draft rules propose to calculate a Hazard Index that is target organ-specific. This

approach prevents risks that are entirely unrelated and unlikely to be additive from being considered

cumulatively. Further limiting Hazard Index calculations to chemicals that have the same mechanisms of

action could risk underestimating cumulative risks from multiple chemicals. The approach proposed by

this comment would require a level of precision in toxicity data that is often not available.

For many chemicals, there is not sufficient data on the mechanism of action to determine precisely

which mechanism is responsible for adverse health effects. Similarly, some chemicals may work through

more than one mechanism of action, some of which are better characterized than others. Such

chemicals could be inappropriately excluded from Hazard Index calculations if the scope is too narrowly

defined within a specific mechanism of action. Furthermore, many chemicals can cause a range of

distinct but related health effects, some of which are better characterized than others.

Narrowly defining the potential health effects of each chemical according to the specific types of health

effects identified in toxicology studies risks disregarding endpoints that have not been fully evaluated.

For example, the most sensitive endpoint used to establish the point of departure for a chemical may be

nasal tissue damage in rats, but the same chemical may also reduce lung function. Furthermore, subtle

effects on distinct elements of the respiratory system (e.g., nasal tissue damage and reduced lung

function) could still have a cumulative overall impact on respiratory health.

The uncertainty factors used to derive TRVs are included with the important aim of protecting sensitive

populations in the face of insufficient data. They are included for a reason, and the Cleaner Air Oregon

rules will not disregard their importance or use them to question the validity of TRVs.




Comment Category #305: RBCs - PAH TEFs

Description: Polycyclic Aromatic Hydrocarbon (PAHs) are not treated with evidence based risk

assessment assumptions.

In the Draft Recommended Procedures for Conducting Air Toxics Health Risk Assessments, it is not clear

which toxicity values are to be used to evaluate risk from PAHs:

“DEQ recommends use of TEFs to evaluate cancer risk of polycyclic aromatic hydrocarbons (PAHs)

relative to the toxicity of benzo[a]pyrene. Concentrations of other PAHs are multiplied by their TEFs to

estimate their toxicity relative to benzo[a]pyrene; the resulting concentrations may be summed into a

total benzo[a]pyrene toxic equivalent concentration. TEFs for humans are provided ATSDR 1995.

Typically, however, IURs and slope factors based on the TEFs are available from EPA for the individual

PAHs, so an evaluation of total carcinogenic PAHs using TEFs is not necessarily required.”


Item G 001404


However, not all PAHs are classified as carcinogens and those that are not, do not have an

accompanying cancer slope factor from which a cancer risk based concentration can be developed. For

example, Indeno[1,2,3-cd]pyrene is not classified as a carcinogen and it is not appropriate to evaluate

this substance for cancer risk.

Listed PAHs should reflect those compounds that are specifically related to air exposure, with the

inhalational route as a risk driver. Substances such as 7H-Dibenzo(c,g)carbazole and Dibenz(a,j)acridine

have extremely low gas phase presence in the air due to low volatility; the listed RBCs for PAHs should

be reviewed to ensure their relevance to the inhalational route as through airborne exposure (HSDB

2017). Substances that have a low potential for airborne exposure have little relevance to a program

that regulates air toxics.

As well, the default acute risk value for Benzo[a]pyrene (BaP) is based on the RfC for developmental

outcomes that are relevant to an intermediate period of exposure, not an acute period of exposure as

described in USEPA Integrated Risk Information System (IRIS) (USEPA 2017). By using a reference value

intended to protect against adverse health effects from a substantially extended exposure period, risk

from acute exposure is substantially overestimated. A more scientifically defensible approach for the

development of a toxicity reference value for acute BaP exposure would be to evaluate policies and

toxicity studies that specifically address the time frame of exposure an acute RBC is intended to provide

protection for.

Listed PAHs should reflect those compounds that are specifically related to air exposure, with the

inhalational route as a risk driver. NCASI agrees with the decision to remove substances such as 7H-

Dibenzo(c,g)carbazole and Dibenz(a,j)acridine from the listed PAHs as they have extremely low gas

phase presence in the air due to low volatility (HSDB 2017). Substances that have a low potential for

airborne exposure have little relevance to a program that regulates air toxics.

NCASI Recommendations

NCASI recommends that PAHs only be regulated as airborne carcinogens when the best scientific

evidence available provides a determination of human carcinogenicity. Many substances affect health in

a route-specific mode of action. NCASI agrees that only PAHs that have demonstrated hazard from the

inhalation route be included in air toxics rule making and supports the ODEQ decision to incorporate the

guidance provided by the CAO ATSAC in refining the list of regulated PAHs to those most relevant to

human health by the inhalation exposure route. As well, a fundamental modulator of risk is exposure

duration; acute and chronic RBCs should always be based on toxicity reference values that are based on

the appropriate exposure duration (e.g. acute, subchronic, chronic, etc.). The acute risk based

concentration for BaP is not currently based on an appropriate acute based toxicity reference value and

therefore substantially overestimates acute risk for this substance.

Response: DEQ no longer is proposing a hierarchy of toxicity authoritative sources, and instead is using

the most recent values from the list of authoritative sources. For chemicals such as PAHs, where the Air

Toxics Science Advisory Committee recommended ambient benchmark concentrations for 26 PAHs, DEQ

used these recommendations as the basis for setting CAO TRVs because the EQC's adoption of ABCs in

May 2018 is the most-recent documented authoritative source. The recommended PAHs and their


Item G 001405


associated TEFs are presented in Table D-3 of the draft Recommended Procedures for Conducting Toxic

Air Contaminant Health Risk Assessments.

DEQ recognizes that this list of PAHs is not identical to those from some other regulatory agencies, but

DEQ's considers it appropriate to accept the recommendations of the ATSAC, particularly because their

focus was on the PAHs most relevant to exposure through inhalation of air. This ATSAC-recommended

list of PAHs appears in Table 3.



Benzo[a]pyrene causes developmental effects, including decreased embryo and fetal survival and

nervous system effects in offspring. Developmental effects can be caused by relatively short exposures

during critical periods of development. For these reasons, DEQ and OHA consider it appropriate to use

EPA's IRIS benzo[a]pyrene reference concentration for acute effects.




Comment Category #306: RBCs - Phosgene

Description: Proposes alternate TRV and RBCs for Phosgene

Response: DEQ and the Oregon Health Authority have chosen, as a matter of policy, to draw their

Toxicity Reference Values from widely recognized authoritative sources, including but not limited to the

Agency for Toxic Substances and Disease Registry. Neither DEQ nor OHA have the resources to conduct

comprehensive evaluations of the universe of toxicity information available for a particular chemical,

and instead relies on the authoritative agencies that do have the resources, and have already conducted

their own comprehensive evaluations. For DEQ or OHA to re-evaluate any single study or the large

volume of toxicological studies on chlorine that exist would be costly in terms of state resources and

duplicative of a service already provided by other agencies.

Note that an important component of the scientific method is consensus among the scientific

community built upon multiple accumulated studies over time that corroborate each other and the

overall weight of scientific evidence. Accepting the single most recent study while ignoring the context

of the overall weight of evidence and degree of consensus in the scientific community would not be

credible science. OHA and DEQ rely on authoritative agencies that have the resources to evaluate that

contextual information that influences their final toxicity values.





Item G 001406




Comment Category #307: RBCs - should account for children's higher breathing

rates

Description:

Response: Children breathe faster than adults relative to their body size. This contributes to the

potential for children to have greater exposure to contaminants present in the air than adults. In

response to a request from the EQC, OHA and DEQ researched how children's susceptibility and

children's breathing rates are accounted for in risk assessments at by the Environmental Protection

Agency (EPA) and in other states, and how the risk assessment process proposed in Cleaner Air Oregon

could accounts for children's susceptibility. After the evaluation, DEQ and OHA decided to maintain the

current approach for evaluating risk to children, at least for now. We may reevaluate this methodology

in the future.

The EPA’s current risk assessment guidance does not specifically account for inhalation rate in its risk

assessment process. EPA has evolved its approach to risk assessment over time. Previously, EPA

evaluated inhalation risk by calculating inhalation exposure doses (not air concentrations) using a

method that accounted for differences in breathing rate. EPA’s current approach is to establish

reference concentrations that identify air concentrations of a chemical that are designed to protect

sensitive populations regardless of which characteristics make a population sensitive (age, genetic

susceptibility, pre-existing disease, nutritional status, etc.). However, these EPA reference

concentrations are not adjusted to explicitly account for differences in exposure due to children’s higher

breathing rates. EPA’s current guidance does not make any adjustment for breathing rate at any step in

the process. Most state air toxics programs are consistent with the current EPA approach.

California is the only state that adjusts for children’s breathing rate as part of the risk assessment

process. California has statutory direction to consider children’s health in its air toxics program.

California’s Office of Environmental Health Hazard Assessment (OEHHA) has taken different approaches

to incorporating children’s breathing rates into noncancer and cancer risk assessment.

For noncancer risk, OEHHA uses a chemical-specific approach. In 2008, California began to apply an

exposure adjustment factor to non-cancer Reference Exposure Levels (RELs) for specific chemicals as

they come up for regular review. This is done by applying an additional 3-fold uncertainty factor

(decreasing the REL by a factor of 3) in cases where the study underlying the REL did not include

children’s breathing rates. Not all of California’s RELs changed because of this re-evaluation, due to

specific factors that rendered the breathing rate not relevant to the analysis. In the coming years, all

California RELs will eventually include explicit consideration of differential breathing rates in children.

Many of them would likely decrease because of this analysis, but not all. So far OEHHA has developed

new RELs for 11 chemicals that explicitly account for children's breathing rates.


Item G 001407


In CAO, the risk assessment process is intended to protect health of sensitive populations, including

children. Noncancer toxicity reference values (TRVs) for nine of the 260+ toxic air contaminants

proposed for regulation under CAO were developed by California’s OEHHA program since 2008, and

explicitly address the higher breathing rate in children. As DEQ updates TRVs on a triennial basis, more

RELs developed by California since 2008 are likely to be selected. Over time, this will mean that more of

CAO’s noncancer TRVs could include this explicit consideration of differentially higher breathing rates in

children.

For cancer risk calculations, OEHHA’s risk assessment guidance recommends a standard set of

adjustments to exposure calculations that account for children’s breathing rates. OEHHA guidance

applies these breathing rate adjustments uniformly for all chemicals in cancer risk assessment. In

contrast, DEQ, like EPA, does not explicitly include breathing rate adjustments in cancer risk calculations.

The inclusion of breathing rate adjustments makes cancer risk calculations in California more cautious

than the process proposed by CAO in Oregon. However, there are several other assumptions made in

the CAO cancer risk assessment process that are more cautious than assumptions made in California

cancer risk calculations. For example, the CAO risk assessment process assumes that exposure could

occur over a 70 year lifetime and that exposure may be constant. California assumes that exposure

occurs over a 30 year period and is not constant. While California and Oregon make slightly different

assumptions in the cancer risk assessment process, both approaches are valid and scientifically

defensible, and the overall degree of health protectiveness is comparable.

DEQ and OHA concluded that the proposed CAO risk assessment process is a good starting point for CAO

that is consistent with many other state and federal programs. As CAO is implemented, the agencies

intend to continually evaluate the success of the program in protecting children's health, and to revisit

the question of children's breathing rates as new science and policy tools emerge.




Comment Category #308: RBCs - should be consistent with ABCs

Description: RBCs are inconsistent with ATSAC decisions on ABCs.

Commenter states that the CAO proposal ignores previous ATSAC recommendations. Specifically, they

call out that a) for selenium and bis(2-ethylhexyl phthalate, the CAO proposal assigns TRVs to these

chemicals, when the ATSAC recommended not assigning TRVs to these chemicals at this time; b) CAO

assigned a cancer toxicity reference value to certain chemicals that the ATSAC had already decided did

not have adequate toxicological evidence to allow assignment of a cancer-based value (cobalt, lead,

toluene diisocyanates); c) that CAO had not used most current and best scientific data when establishing

the TRVs for Chromium VI; and d) CAO ignored ATSAC expertise and recommendations when it elected


Item G 001408


to propose different cancer-based TRVs for five of the ATSAC-recommended list of 26 polycyclic

aromatic hydrocarbons.

Response:

A number of changes have been made to the CAO "Table 3 - Toxicity Reference Values" in light of

comments received and additional review of various technical options by DEQ and OHA. Two of these

changes are: 1) If the ATSAC stated that no carcinogenic value should be identified for a chemical based

on the inadequacy of the toxicity information, then CAO has chosen to follow the ATSAC

recommendation; and 2) for each chemical, the most current toxicological reference value has been

chosen, and Table 3 revised accordingly. Note that in the cases where an ATSAC Ambient Benchmark

Concentration is used as the TRV for a chemical, that the ATSAC reference is the most current value

available (2018). In addition, the list of PAHs in Table 3 is now consistent with the ATSAC

recommendation.

In cases where the ATSAC evaluated a chemical known to have both carcinogenic and noncarcinogenic

effects, only the most-stringent toxicity value was chosen as an ABC. This protocol is protective because

a cancer-based toxicity value for an ABC that is more stringent than the related noncancer toxicity value

will end up protecting for both types of effects. In these cases, CAO chose to use the cancer-based ABC

as a TRV, as well as provide a noncancer TRV if available from other authoritative sources. ABCs are

protective goals, while CAO TRVs (which use ABCs) will be used to assess both cancer risk and noncancer

risk.

In addition, rounding protocols for numeric value may have given the appearance of inconsistency

between ABCs and TRVs based on ABCs. The ATSAC, in proposing ABCs, rounded the original toxicity TRV

to one significant digit. In the development of CAO TRVs, DEQ obtained the original values from the

authoritative toxicity sources used by ATSAC, and maintained the significant digits throughout RBC

calculations. For CAO, TRV and RBC values are rounded at the final step to two significant digits. Given

this approach, there may appear to be inconsistencies between TRVs and ABCs because of differences in

the number of significant digits presented in the values.

Also, see response to comment category, "RBCs - TRV hierarchy should be changed."




Comment Category #309: RBCs - should use less conservative exposure

frequency and duration

Description: RBCs should be developed using less conservative exposure frequency and duration

assumptions. Cancer RBCs should assume exposure for 26 years and 350 days a year, instead of 70 years

and 365 days a year.


Item G 001409


Response: DEQ and OHA considered an exposure duration of 26 years, such as that used by DEQ's

Cleanup Program. This assumption, an upper bound estimate of time spent in a specific home, is more

appropriate for evaluating risk from a single facility. However, for CAO, DEQ and OHA are interested in

protecting someone living in Oregon for an entire lifetime, even if they do not remain in the same home

for the entire period. In this way, the agencies provide the same level of health protection from air

emissions no matter where a person lives or moves within the state.

As an example of what could happen if DEQ used an exposure duration of 26 years, suppose a person is

exposed for this period to an air concentration from an existing facility resulting in an excess cancer risk

of 45 in one million, just below the acceptable level of 50 in one million. After 26 years, say they move to

another location where they are exposed to air emissions from another facility for an exposure duration

of 26 years, resulting in an excess cancer risk of 35 in one million, also below the acceptable level of 50

in one million. The total excess risk for the person would be 45 + 35 = 80 in one million after 26 + 26 = 52

years of exposure. This would result in an exceedance of the acceptable risk level over a period less than

an expected lifetime.

DEQ and OHA also considered using an exposure frequency of 350 days/year instead of 365 days/year to

factor in time away from home, such as for vacation. However, for reasonable maximum exposure, we

decided it was appropriate to keep the simple assumption of 365 day/year to protect populations, such

as low-income groups and the elderly that may not have opportunities to be away from their homes for

an extended period. This simplifying assumption is conservative, but the result is only a 4 percent

difference in calculated residential cancer RBCs.

The revised draft rules include a presumption that people live or congregate in locations in the manner

allowed by zoning. However, as required by Senate Bill 1541 (enacted as statute in 2018), a facility may

rebut this presumption. If the request is accepted by DEQ, exposure modeling can be adjusted

accordingly to account for actual exposure.




626, 631, 634, 644, 652, 655, 658, 665, 667, 673

Comment Category #310: RBCs - styrene

Description: SIRC respectfully urges that DEQ give careful consideration to the quality of determinations

by any authoritative body it may consider referencing in developing riskbased concentrations for

substances under the Cleaner Air Oregon rulemaking.

Response: DEQ and the Oregon Health Authority have chosen to use widely recognized, peer-reviewed,

traditional authoritative sources (including OEHHA) from which to draw Toxic Reference Valuess.

Neither DEQ nor OHA have the funding and resources to conduct evaluation of the available universe of

toxicological information for a chemical, and instead depends on the sources that do have the resources


Item G 001410


and have already conducted the appropriate evaluations. In the future, if TRVs from the traditional

authoritative bodies are revised, DEQ and OHA will consider using these revised TRVs during the

upcoming review of Cleaner Air Oregon TRVs, due to occur within the next 3 to 4 years.

Also, see response to categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current

and protective science available."



Comment Category #311: RBCs - supports evaluation of both 24-hour and

annual exposures

Description: Commenters support setting health-based benchmarks for 24- hour and annual exposures

for carcinogens, and both chronic and acute non-cancer health impacts of air toxics.

Response: The draft rules establish health-based comparison values for both cancer and non-cancer

effects and for both short-term and long-term exposures. This will allow the program to regulate

facilities based on a range of potential long-term and short-term health risks.




Comment Category #312: RBCs - supports RBCs for 215 air toxics

Description: Commenter supports setting health-based Risk Action Levels and permitting procedures for

215 air toxics and clear procedures for compliance.


comment.



Comment Category #313: RBCs - TCE

Description: The Proposed Cancer Inhalation TCE Toxicity Reference Value Lacks a Scientific Basis. The

Proposed Acute, Noncancer Inhalation TCE Toxicity Reference Value Lacks A Scientific Basis


Item G 001411


Response: DEQ and OHA believe that the cancer RBC is valid and consistent with scientific conclusions of

authoritative bodies. ABCs are typically based on the most sensitive cancer or noncancer endpoints.

ATSAC therefore discussed ATSDR's noncancer MRLs as well as several cancer values in its consideration

of potential ABCs. Ultimately, ATSAC recommended an ABC derived from EPA's cancer slope factor,

noting that this value is protective of both cancer and noncancer endpoints.

As stated in DEQ's notice of proposed rulemaking for ABCs, "An ABC of 0.24 μg/m3 can be generated

from the EPA IRIS URE of 4.1 x 10-6 per μg/m3. Rounding the ABC value per ATSAC policy would result in

a value of 0.2 μg/m3. The ATSAC unanimously recommended 0.2 μg/m3 as the new ABC for TCE, based

largely on new epidemiology studies of highly exposed workers, and new molecular biology methods

which have shown causal relationship with cancer as an outcome of exposure to TCE". The decision to

round 0.24 to 0.2 is consistent with EPA's own approach, outlined in the EPA IRIS summary for TCE:

https://cfpub.epa.gov/ncea/iris/iris_documents/documents/subst/0199_summary.pdf#nameddest=can

cerinhal

For the purposes of Cleaner Air Oregon, DEQ proposed the ABC recommended by ATSAC as the cancer

RBC because the ABC was based on cancer risk. While ATSDR MRLs and EPA RSLs were discussed during

selection of the recommended ABC, they are not relevant for cancer RBC selection under Cleaner Air

Oregon. Had DEQ not applied ATSAC's proposed a cancer-based ABC, the cancer RBC for TCE would have

still defaulted to the EPA IRIS cancer value, which would have resulted in the same cancer RBC. The EPA

IRIS cancer URE for TCE was developed through an extensive public, peer-reviewed process involving a

panel of subject matter experts and it reflects the best available science on TCE cancer risk.

The acute RBC proposed for TCE is based on ATSDR's intermediate MRL. This is consistent with DEQ's

hierarchy for selection of acute RBCs. When no acute exposure levels have been defined, DEQ uses the

intermediate MRL to derive an acute RBC. In the case of TCE, applying the intermediate MRL for shorter-

term exposure durations is appropriate because there is evidence that TCE can severely harm prenatal

development. While studies on developmental effects are typically performed over a period of several

weeks, severe developmental effects are known to occur following very short duration exposures (one

or two days) during critical windows of development.

For this reason, DEQ and OHA have concluded that chemicals that can harm prenatal development

warrant the same degree of caution over acute exposure durations. While the intermediate MRL is in

draft form, it has already gone through extensive review and it is consistent with the reference

concentration established by EPA IRIS based on risk of fetal heart defects and effects on the immune

system. If ATSDR were to release a different final intermediate MRL in the future, the acute TRV could

be updated to match it during the triennial review for CAO TRVs.







Item G 001412


Comment Category #314: RBCs - TCE risk values in error

Description: TCE risk values are inaccurately calculated and the error needs to be fixed.

Response: DEQ agrees that there was an error in the TCE RBC calculation. The correct calculation of the

ELAF in the TRV/RBC spreadsheet was incorrectly incorporated in the RBC calculation. DEQ corrected

this error. DEQ made other revisions to RBC calculations, partly in response to other comments. The

calculation of non-resident adjustment factors (NRAFs) was modified to incorporate an exposure


also children in school/daycare. Also, adjustment factors were rounded to 2 significant digits prior to

calculations so as not to imply unwarranted precision.

DEQ and OHA decided that it was still appropriate to retain some of the exposure factors discussed in

the comment, such as maintaining 5 days/week for non-residential child exposure. This accounts for a

child being present in day-care as well as school. Also, on days where children are not at school, they

may be using school grounds as playgrounds. DEQ considers these reasonable maximum assumptions

for exposure.




Comment Category #315: RBCs - toluene diisocyanate (TDI)

Description: CAO should use the older, higher (less-stringent) 1995 EPA IRIS RfC for toluene

diisocyanate, rather than the lower ATSDR MRL that was recently adopted as the ABC.

Response: DEQ understands that the American Chemistry Council disagrees with the Minimal Risk Level

that ATSDR has chosen for toluene diisocyanates (TDI), and so by extension disagrees with DEQ's use of

the ATSDR value as a TRV for TDI. However, DEQ and the Oregon Health Authority purposely utilize

widely recognized authoritative sources from which to obtain the Cleaner Air Oregon TRVs as a matter

of policy.

Neither DEQ nor OHA has the funding or resources to evaluate the complete universe of toxicological

information available for a chemical, and so depends on the traditional toxicology sources (including

ATSDR), which do have the funding and resources to do a comprehensive evaluation of toxicological

information available for the chemical in question. Also, note that the Oregon Air Toxics Science

Advisory Committee originally made the consensus recommendation to use the ATSDR MRL value,

rather than others that were available, such as the 1995 IRIS RfC for TDI.




Item G 001413





Comment Category #316: RBCs - too many chemicals are included

Description: Too many regulated pollutants

Response: DEQ recognizes that Cleaner Air Oregon will regulate a large number of chemicals. DEQ is

doing this to ensure that public health is being protected. All chemicals can cause adverse health effects

at high enough concentrations. The only way to know if a facility meets acceptable risk levels is to

evaluate potential risks from all chemicals for which DEQ has sufficient toxicity information. A facility

only needs to evaluate risks from those chemicals that a facility uses, are byproducts, or are reasonably

likely to be formed during the industrial process.




Comment Category #317: RBCs - TRV hierarchy should be changed

Description: Several comments suggested a range of changes to the hierarchy used to select TRVs from

authoritative bodies. Comments include:

The hierarchy overlooks leading contributors to toxicological information (eg WHO);

Make California's OEHHA the first position in the hierarchy of authoritative bodies in the rules;

The hierarchy is arbitrary and unnecessarily limiting;

The process should consider the age of the science used as the basis for values;

Select values based on recency rather than based on a hierarchy of authoritative sources;

The process should not arbitrarily exclude or discount scientifically valid data;

The process should use the most scientifically valid data

Response: In response to these comments, the agencies have changed the approach to selecting chronic

TRVs. Rather than selecting chronic TRVs based on a hierarchy of authoritative sources, TRVs were

selected from the most recently released value established by any of the identified authoritative sources


Item G 001414


(DEQ, EPA, ATSDR or OEHHA). This change reflects the conclusion that all of the authoritative sources

are equally credible.

This change allows the agencies to use chronic TRV values based on the most recent science. The

hierarchy for selecting acute TRVs remains unchanged because the hierarchy for acute sources reflects a

preference to select acute TRVs that represent an averaging time that is most similar to the 24-hour

exposure period used in Cleaner Air Oregon. The specific process used for TRV selection was removed

from rule, but DEQ and OHA used the methods described here to select the TRVs to be established in

rule.

No other changes have been made to the TRV selection process. The authoritative agencies that DEQ

has selected as sources for TRVs are consistent with those selected in many other state programs. While

other authoritative agencies exist, DEQ and OHA have concluded that EPA, ATSDR, and California OEHHA

meet high standards for scientific credibility. They also provide extensive documentation of the rationale

behind the values they select. DEQ selected these authoritative bodies because they recruit panels of

scientists with expertise on specific chemicals to perform a comprehensive review of the literature and

set values based on the weight of existing scientific evidence and degree of consensus within the

scientific community.

It would be inappropriate for DEQ to allow results of individual studies (no matter how "ground

breaking") to influence TRVs without considering the context of the broader weight of evidence and

degree of consensus within the scientific community. The inclusion of DEQ in the list of authoritative

sources provides a mechanism for DEQ to decide to use a TRV from an alternate authoritative body that

is not on DEQ's default list when none of the listed authoritative sources has a toxicity value for a given

toxic air contaminant.

Consensus within the scientific community is an important part of the scientific method. Selecting TRVs

in ways that ignore the degree of scientific consensus in favor of the most recent individual scientific

study or group of studies is not consistent with the scientific method and would not be a scientifically

credible practice.

Also, see response to comment category "RBCs - use most current and protective science available."




911

Comment Category #318: RBCs - use additional authoritative sources and/or

more current science

Description: DEQ should use sources other than the limited list of authoritative sources already

identified by CAO as the ones that DEQ and OHA will use to obtain TRVs.


Item G 001415


Response: Many authoritative sources identified by commenters do not actually provide numeric values

for cancer and/or noncancer effects of a specific toxic air contaminant. Without such a numeric value,

risks cannot be estimated, and therefore these types of sources were not included in the list of sources

that DEQ and OHA use.

DEQ and OHA agree that the goal is for CAO to be based on the most current scientific information

available. The scientific method includes the development and testing of a hypothesis. This part of the

scientific method is reflected in individual studies published in the scientific literature. Another

important part of the scientific process is the establishment of consensus among scientists working in

the same field conducting similar studies, sometimes confirming previously published studies and

sometimes refuting them.

Whether or not a study confirms or refutes previous findings depends on hundreds of potential factors

related to laboratory-specific methods and conditions, slight differences in study design, genetic

differences in the strain or species of animals used in the different experiments, and many more. With

the accumulation of multiple individual studies addressing the same questions over time, this process

allows scientists to evaluate the overall weight of scientific evidence on a given topic. The collection and

evaluation of the overall weight of scientific evidence is the role of government agencies named in CAO

rules as authoritative bodies.

These agencies have the resources and expertise to evaluate the quality and degree of consensus among

hundreds of individual published studies to determine the overall weight of evidence and degree of

consensus among scientists working in the relevant field. Therefore, DEQ and OHA rely on these

authoritative bodies to establish TRVs based on the latest scientific evidence that is supported by an

adequate degree of consensus among the scientific community. As such, it would be inappropriate for

DEQ or OHA to allow results of individual studies to influence TRVs without considering the context of

the broader weight of evidence and degree of consensus among the scientific community.

Authoritative bodies each have their own frequency and schedule with which they review the state of

the science and update their TRVs on specific toxic air contaminants. As such, different authoritative

bodies are likely to have the most recently updated TRV for different toxic air contaminants. For

example, California's Office of Environmental Health Hazard Assessment, has updated noncancer TRVs

for 11 toxic air contaminants since 2008. For other toxic air contaminants, the EPA or ATSDR might have

the TRVs reflecting the most recent science with an adequate degree of consensus in the scientific

community. Therefore, DEQ and OHA selected the TRVs for toxic air contaminants currently proposed in

draft rules from among authoritative bodies based on which one had the most recently updated TRV for

that particular toxic air contaminant. This process is explained in detail in Appendix A of DEQ's Draft


Authoritative bodies also build in uncertainty or safety factors into their TRVs that reflect the degree of

certainty in the overall weight of scientific evidence supporting it. In this way, TRVs are adjusted to err

on the side of health protectiveness in the face of scientific uncertainty.

CAO proposed rules specify that DEQ and OHA will review TRVs and RBCs every three years to see

whether authoritative bodies have updated any of their TRVs in the intervening years. The intention of

that triennial review is for CAO to adopt the most recently updated TRVs from authoritative sources


Item G 001416


through a public rule making process to ensure that updates to CAO are clearly and transparently

communicated to all stakeholders and communities in Oregon.

While the details of how TRVs were selected are no longer in rule language, they are clearly articulated

in Appendix A of the Draft Recommended Protocol for Conducting Air Toxics Health Risk Assessments,

and details behind future updates would also be documented there as well as in supplementary

materials produced to support the public rule making process.





572, 574, 576, 600, 631, 652, 928, 927

Comment Category #319: RBCs - use most current and protective science

available

Description: This comment category urged DEQ and OHA regularly review available science on the

toxicity of toxic air contaminants and risk assessment methods and ensure that the CAO always reflect

that most current science available. Some, but not all, commenters within this category also

recommended that CAO always err on the side of caution in favor of public health when there is

scientific uncertainty. Some, but not all, commenters within this category recommended that CAO

always use one particular authoritative body as the source of TRVs in CAO. Finally, this category included

recommendations that the methods and the sources of information used to update TRVs and RBCs be

very transparently and clearly documented and communicated.

Response: DEQ and OHA agree that the goal is for CAO to be based on the most current scientific

information available. The scientific method includes the development and testing of a hypothesis. This

part of the scientific method is reflected in individual studies published in the scientific literature.

Another important part of the scientific process is the establishment of consensus among scientists

working in the same field conducting similar studies, sometimes confirming previously published studies

and sometimes refuting them.

Whether or not a study confirms or refutes previous findings depends on hundreds of potential factors

related to laboratory-specific methods and conditions, slight differences in study design, genetic

differences in the strain or species of animals used in the different experiments, and many more. With

the accumulation of multiple individual studies addressing the same questions over time, this process

allows scientists to evaluate the overall weight of scientific evidence on a given topic. The collection and

evaluation of the overall weight of scientific evidence is the role of government agencies named in CAO

rules as authoritative bodies.


Item G 001417


These agencies have the resources and expertise to evaluate the quality and degree of consensus among

hundreds of individual published studies to determine the overall weight of evidence and degree of

consensus among scientists working in the relevant field. Therefore, DEQ and OHA rely on these

authoritative bodies to establish TRVs based on the latest scientific evidence that is supported by an

adequate degree of consensus among the scientific community. As such, it would be inappropriate for

DEQ or OHA to allow results of individual studies to influence TRVs without considering the context of

the broader weight of evidence and degree of consensus among the scientific community.

Authoritative bodies each have their own frequency and schedule with which they review the state of

the science and update their TRVs on specific toxic air contaminants. As such, different authoritative

bodies are likely to have the most recently updated TRV for different toxic air contaminants. For

example, California's Office of Environmental Health Hazard Assessment, has updated noncancer TRVs

for 11 toxic air contaminants since 2008. For other toxic air contaminants, the EPA or ATSDR might have

the TRVs reflecting the most recent science with an adequate degree of consensus in the scientific

community.

Therefore, DEQ and OHA selected the TRVs for toxic air contaminants currently proposed in draft rules

from among authoritative bodies based on which one had the most recently updated TRV for that

particular toxic air contaminant. This process is explained in detail in Appendix A of DEQ's Draft


Authoritative bodies also build in uncertainty or safety factors into their TRVs that reflect the degree of

certainty in the overall weight of scientific evidence supporting it. In this way, TRVs are adjusted to err

on the side of health protectiveness in the face of scientific uncertainty.

CAO proposed rules specify that DEQ and OHA will review TRVs and RBCs every three years to see

whether authoritative bodies have updated any of their TRVs in the intervening years. The intention of

that triennial review is for CAO to adopt the most recently updated TRVs from authoritative sources

through a public rule making process to ensure that updates to CAO are communicated clearly and

transparently to all stakeholders and communities in Oregon.

While the details of how TRVs were selected are no longer in rule language, they are clearly articulated

in Appendix A of the Draft Recommended Protocol for Conducting Toxic Air Contaminant Health Risk

Assessments, and details behind future updates would also be documented there as well as in

supplementary materials produced to support the public rule making process. The chronic TRVs

proposed in rule now are the most recent values available from among the authoritative sources. The

acute TRVs proposed in rule as selected based on a hierarchy of authoritative sources that prioritizes

sources that are most consistent with a 24hr exposure duration.





615, 626, 645, 807, 756, 761, 911


Item G 001418


Comment Category #320: Reconstruction - 90 days for DEQ determination

Description: If the owner or operator of an existing source determines proposed modifications

constitute reconstruction, and therefore make the source a new source, it is unclear why the owner or

operator would be required to provide justification to DEQ and wait 90 days for DEQ to agree to this

determination. It would be more efficient for the owner or operator to be allowed to demonstrate

compliance with 340-245-0080 from the outset.

Response: DEQ removed the detail about how a reconstructed source would be permitted under

Cleaner Air Oregon and is requiring that a reconstructed source be permitted as a new source.




Comment Category #321: Reconstruction - clarify that rebricking a

furnace/boiler is not reconstruction

Description: The proposed CAO rules define "reconstruction " as the "replacement of components of an

existing source to such an extent that the fixed capital costs of the new components exceed 50% of the

fixed capital costs that would be required to construct a comparable entirely new source." Under the

proposed CAO rules, an existing source, upon reconstruction, becomes a new source. The proposed CAO

rules do not specify whether "reconstruction" is evaluated on a per project basis or could occur

overtime as multiple components (or the same component) of the source is replaced. DEQ should clarify

under the revised CAGM rules that re-bricking is not considered "reconstruction" for purposes of the

CAO rules and a re-bricked furnace would not be considered a new or modified toxics emissions unit.

Response: Senate Bill 1541 adopted into law by the 2018 Legislature defines "reconstructed source" and

this statutory definition will replace the definition currently in the proposed OAR 340-245 rules.

“Reconstructed source” means a source where an individual project is constructed that, once

constructed, increases the hourly capacity of any changed equipment to emit, and where the fixed

capital cost of new components exceeds 50 percent of the fixed capital cost that would have been

required to construct a comparable new source.

The SB 1541 language states that the projects are evaluated individually.

The New Source Performance Standard 40 CFR Part 60 Subpart CC—Standards of Performance for Glass

Manufacturing Plants defines rebricking as "cold replacement of damaged or worn refractory parts of

the glass melting furnace. Rebricking includes replacement of the refractories comprising the bottom,

sidewalls, or roof of the melting vessel; replacement of refractory work in the heat exchanger;

replacement of refractory portions of the glass conditioning and distribution system."


Item G 001419


It also states in §60.292 Standards for particulate matter that "Rebricking and the cost of rebricking is

not considered a reconstruction for the purposes of §60.15." 40 CFR Part 63 Subpart SSSSSS—National

Emission Standards for Hazardous Air Pollutants for Glass Manufacturing Area Sources does not mention

rebricking.

Based on the SB 1541 definition of reconstructed source and the NSPS language regarding rebricking,

DEQ would not consider rebricking to be reconstruction and does not believe a rule change is needed.




Comment Category #322: Reconstruction - should be eliminated, in addition to

conflicting rule language

Description: This introduction of the concept of reconstruction should be removed. Existing sources

should be assessed as existing sources. Just as the reconstruction concept was dropped from the PSD

program after it was initially proposed in the 1970s, reconstruction is not appropriate for CAO. Existing

sources, even those engaged in major construction projects, lack that flexibility and cannot be lumped in

with greenfield sources and held to the new source RALs.

In addition, the timing outlined in the proposed rules is not internally consistent. The rule language

should clarify that DEQ will respond to any reconstruction determination request within 30 days, that

the source is otherwise permitted to proceed consistent with the timelines in OAR 340-210-0240 and

that if DEQ fails to act within those timelines then that burden is carried by DEQ, not the source. Also,

the language is inconsistent with a reconstruction determination. The rule language should be amended

to clarify that if the replacement components do not significantly contribute to toxics emissions, then

reconstruction is not triggered.

Response: Senate Bill 1541 adopted into law by the 2018 Legislature defines "Reconstructed source"

and this statutory definition will replace the definition currently in the proposed OAR 340-245 rules.

“Reconstructed source” means a source where an individual project is constructed that, once

constructed, increases the hourly capacity of any changed equipment to emit, and where the fixed


required to construct a comparable new source. DEQ removed the other rule language regarding

reconstruction and added "or reconstructed" to "new sources" since these sources must meet the same

requirements.



Item G 001420




Comment Category #323: Request for additional public hearings

Description: A public meeting should be held on Oregon's east side. The current meeting locations in

Portland and Eugene do not allow physical attendance for these rules without burdensome travel

requirements. Eastern Oregon contains a variety of pollution sources which will be impacted by these

rules. Please hold a public meeting on the East side of the state (Pendleton, Boardman, etc) to allow all

Oregonians to attend a meeting without burdensome travel.

Response: DEQ recognizes that the two locations of the public hearings will not be convenient for all

Oregonians, and appreciate the desire for additional opportunities to participate. However, DEQ

decided not to add more hearings at this time. DEQ provided multiple ways for the public to get

information about the proposed rules and to provide their input. People can listen in to the public

hearings remotely, ask questions of DEQ and OHA staff by phone or email, and submit comments on the

DEQ website or through mail or email.




Comment Category #324: Risk Assessment - allow option not to sum risk from

chemicals with different health endpoints or modes of action, even at Level 1

Description: It's not accurate to sum the risk from chemicals that affect different organs, or have

different health endpoints or ways that they cause harm. The rules should allow the risk to be listed

separately for each organ or mode of action, even for Level 1 risk assessments.

Response: For noncarcinogens, DEQ will accept a simple sum of hazard quotients without the effort to

separate HQs by target organ. This makes the calculation of hazard index easier for the facility and the

review easier by DEQ. However, DEQ agrees that the hazard index can be calculated by target organ. As

stated in draft rules and the draft procedures document, a facility can calculate a hazard index by target

organ at any risk level of the risk assessment. To assist with the calculation, DEQ intends to provide an

appendix to the risk assessment procedures document with a table of target organs associated with

toxic air contaminants.

For carcinogens, DEQ's interest is in total cancer risk, not cancer risk by target organ. This has always

been the approach taken by EPA, as documented in their 1989 Risk Assessment Guidance for Superfund

document. DEQ knows of no regulatory entity that evaluates cancer risk by target organ. As an example

of why it is important to calculate total cancer risk, consider a laboratory test of 100 animals. If 15


Item G 001421


animals got liver cancer and 10 animals got kidney cancer, the key result is that 25 out of 100 animals

got some form of cancer. DEQ intends to maintain the standard approach for evaluating cumulative

cancer risk.




Comment Category #325: Risk Assessment - allow revision of RBCs during Level

4 Risk Assessment

Description: In level 4 risk assessment, the assumptions for the RBCs should be reconsidered to see if

they hold true for the particular situation or process being evaluated. For example the RBC may be

based on one form of a chemical and the facility may emit a different form of it.

Response: DEQ agrees that the form of a chemical is important in evaluating its toxicity. For this reason,

DEQ states in Section 4.2.2 of the draft risk assessment procedures document that "If you can

characterize the chemical form of your emissions, you can use the appropriate RBC at any risk

evaluation level. This may make it unnecessary to proceed to a Level 4 evaluation." As with most risk

assessments, the focus should be on refining exposure (which includes exposure to the correct form of

the chemical), not toxicity. It is important that the CAO program establish TRVs from agreed-upon

authoritative sources. Once these TRVs are established in rule, they are not subject to revision in a Level

4 risk assessment [OAR 340-245-0220(5)(b)].




Comment Category #326: Risk Assessment - calculate risk based on current use,

not zoning or future use

Description: This comment category includes comments from both comment periods (before and after

passage of Senate Bill 1541). Comments from before passage of Sentate Bill 1541 requested that

modeled exposure locations in risk assessment be based on actual use rather than zoning designation or

potential future zoning designation. Comments from after passage of Senate Bill 1541 assert that the

rules contain burdensome requirements for sources to monitor land use changes in a manner which

cannot be accomplished and that language in rule is conflicting with existing land use laws.


Item G 001422


Response: DEQ rules are required to be consistent with statutes passed by the legislature. Senate Bill

1541, which is now statute, states that DEQ's presumption should be that that the actual land use

matches the current zoning designation, and that air dispersion modeling for risk assessment should

reflect this presumption. However, Senate Bill 1541 also says that a source of toxic air contaminant

emissions can provide documentation rebutting the presumption that actual land use matches the

zoning designation.

If DEQ agrees with the rebutting documentation, then areas that are not being used for a designated use

can be excluded as exposure locations for the relevant scenarios in modeling and risk assessment.

However, Senate Bill 1541 also states that it is the responsibility of the source of toxic air contaminant

emissions to provide annual updates to that documentation demonstrating that the actual land use

continues not to be that allowed by zoning.

The current proposed CAO draft rules are consistent with Senate Bill 1541, which is now statute. DEQ is

not allowed to write rules that contradict this statute, and does not intend to adjust rules based on

these comments.




624, 626, 629, 631, 655, 658, 665, 918, 770, 667

Comment Category #327: Risk Assessment - clarify how chronic risk will be

assessed

Description: Commenters requested more clarity around the way chronic risk will be evaluated,

particularly in cases where emissions only occur for a relatively short duration.

Response: The rules specify that chronic exposure is evaluated using long-term annual emission rates.

DEQ describes the risk assessment process in depth in the document titled "Draft recommended

procedures for conducting toxic air contaminant health risk assessments", which accompanies the draft

rules. For facilities with emissions that vary month to month, the rates should be averaged so that an

estimated annual emission rate is used in the evaluation of chronic risk. DEQ does not intend for a

facility to assume that short-term emission rates occur for 70 years. For acute effects, short-term

emission rates should be used.





Item G 001423


Comment Category #328: Risk Assessment - clarify requirements for

demonstrating facility is de minimis

Description: The requirement to assess toxic air contaminant emissions at the capacity to emit for the

purpose of demonstrating de minimis status is inconsistent with other provisions of the CAO rules and

will result in sources that should be exempt expending resources unnecessarily. DEQ should revise the

rule to allow the use of actual emission rates in demonstrating de minimis status. DEQ should consider

less demanding means for demonstrating de minimis status to avoid imposing burdens on Oregon

municipalities.

There appears to be no difference between the regulatory burden imposed on an existing source whose

risk is de minimis and an existing source whose risk exceeds the Source Permit Level but is less than

TBACT. In either case, a Risk Reduction Plan is not required. There does not seem to be any other benefit

of being de minimis versus simply below TBACT and meeting TBACT is "easier" (de minimis TEUs are

omitted and the actual rates of emission are used as opposed to the capacity to emit), a rational

owner/operator will choose to show its source is below TBACT, rather than try to show it is de minimis.

To address this inconsistency, DEQ should either allow a simpler path to de minimis status, as suggested

above, or expand de minimis status to include all sources whose risk is below TBACT.

Response: Toxic air contaminant emissions must be evaluated at capacity for a de minimis source for all

TEUs, including de minimis TEUs, as is clearly stated in OAR 340-245-0050(7) because these sources are

not required to get permits under the Cleaner Air Oregon program. These sources would only be

required to submit triennial emissions inventories. If the source is de minimis, DEQ will only include the

de minimis evaluation in the review report of the operating permit for that source.

DEQ is requiring source risk (defined in OAR 340-245-0020) to be evaluated in this manner because once

a source proves it is de minimis, there is no reason for DEQ to evaluate that source again since that

source will not be able to increase source risk unless they undergo a physical modification. Assessing

source risk at actual emissions will not ensure that the source will remain de minimis and would thus

require a permit. An owner or operator may use any level of risk assessment to prove de minimis status.

If a source is not de minimis, the source must use any level of risk assessment, (Level 1, 2, 3, or 4) to

show that the source risk is less than the TBACT Level. The definition of source risk clearly states that it is

the cumulative risk from all significant TEUs and only the Source Risk Assessment for a de minimis

source must also include de minimis TEUs. Sources can choose to assess risk using

• Level 1, 2, 3, or 4 at the source’s PTE in its current operating permit,

• a PTE or risk limit that is lower than the source’s PTE in its current operating permit, if requested

by the owner or operator, or

• the actual toxic air contaminant emission rate of the source, if requested by the owner or

operator.


Item G 001424


The level of toxic air contaminant emissions used in the risk assessment will be used to set risk limits in

the permit.

DEQ bases the fees for Cleaner Air Oregon on the work needed to review submissions. If a source can

show it is de minimis at Level 1, the amount of work to review the application is a lot less than if a Level

4 risk assessment is needed. If the source is de minimis and a permit is not needed, the fees are even

less.




Comment Category #329: Risk Assessment - clarify requirements for Level 1 risk

assessments

Description: The preliminary submittals and approvals required in several sections throughout the CAO

rules for performing a Level 1 Risk Assessment need to be clarified and made consistent with each other.

Reference to OAR 340-245-0220 shows that provision requires DEQ approval of a number of items,

which do not include maximum chronic and acute exposure locations. The requirements for submittal of

a modeling protocol at OAR 340-245-0210(2) are vague, stating that an owner/operator must submit a

monitoring protocol "[w]hen required to perform modeling;" the scope and contents of the modeling

protocol are not described. OAR 340-245-0210(5)(a) requires the owner/operator performing only a

Level 2, 3 or 4 Source Risk Assessment to identify exposure locations; there is no mention that this

needs to be done for Level 1 Risk Assessment. OAR 340-245-0030(1)(d) gives a deadline for submittal of

Level 1 Risk assessments as 60 days after DEQ approval of the emissions inventory, but does not refer to

submittal of a modeling protocol as do the deadlines for Level 2, 3 and 4. OAR 340-245- 0210(6) lists

multiple pieces of information regarding modeling that must be submitted to DEQ but does not appear

to be referenced in any other rule that mentions preliminary submittals.

DEQ should revise the CAO rules to clearly state the expectations for preliminary approvals, including

inventory and modeling protocol. The CAO rules should clearly state (preferably in a single location)

under what circumstances a modeling protocol must be submitted and what information the protocol

must contain. If a protocol is required for Level 1, the submittal deadline for the Risk Assessment should

be relative to approval of that protocol, as it is for Levels 2 through 4.

Response: DEQ has clarified the proposed rules regarding submittals for Level 1 Risk Assessments. Even

though Level 1 does not require computer modeling, it does require knowledge of exposure locations to

use the Level 1 Risk Assessment Tool so DEQ has added this requirement for a modeling protocol to

both the Submittal and Payment Deadlines, Modeling Requirements and Source Risk Assessment

Requirements. Requirements for exposure locations are contained in OAR 340-245-0210(5). Details for

the modeling protocol requirements are contained in OAR 340-245-0210(6) so DEQ clarified that those

requirements must be submitted in a modeling protocol.


Item G 001425





Comment Category #330: Risk Assessment - clarify that any level of risk

assessment can be used

Description: It is unclear whether the source or DEQ decides which Source Risk Assessment level will be

performed. If the source is able to choose, it should be clearly articulated that sources can choose to

conduct any level of Risk Assessment that may be necessary and do not need to start with a level 1 Risk

Assessment. Given the relatively short submittal deadlines, which do not provide adequate time for

additional source testing, sources should be allowed to skip to the level of Risk Assessment they deem

appropriate for their facility. This is particularly true given that the Level 1 Risk Assessment methodology

is currently not available to sources in complex terrain or with fugitive Toxics Emission Units (TEUs), and

may not be approved for sources with multiple emission points. OAR 340-245-0200 (Modeling

Requirements) and 340-245-0210 (Comprehensive Health Risk Assessment Procedure) should be revised

accordingly.

Response: The proposed rules state that sources must "assess risk from the source using any of the

Level 1 through 4 Risk Assessment procedures." The rules do not say that sources must start with Level 1

and progress through the all the levels. DEQ will add language to clarify that sources do not need to start

with Level 1 and can choose any level of risk assessment. A source can choose to use Level 1 for multiple

emission points but must realize that Level 1 is the most conservative risk assessment methodology and

will overestimate risk. DEQ will develop a companion to the table of dispersion factors for point sources

for area source types and fugitive emissions.

If sources want to do source testing to better quantify emissions, they can do so at any time, even now

before the proposed rules are adopted. DEQ extended the time an owner or operator has to perform

source tests and submit that data to DEQ from 120 days to 150 days.




Comment Category #331: Risk Assessment - define when a change to RBCs or

risk assessment procedures would "substantially impact" a risk assessment

Description: DEQ should define when a change to RBCs or risk assessment procedures would be

considered to "substantially impact risk, implementation, or effectiveness of the Risk Reduction Plan"


Item G 001426


and DEQ would require a facility to re-do their risk assessment. Or, DEQ should get rid of this text and

revise risk assessments only at permit renewal.

Response: The commenter references proposed language that would allow DEQ to require a facility to

update their CAO risk assessment if changes to RBCs or risk assessment procedures would "substantially

impact risk, implementation, or effectiveness of the Risk Reduction Plan". DEQ feels that it is

appropriate to maintain agency discretion in this area.

DEQ did not make changes in response to this comment.



Comment Category #332: Risk Assessment - do not require General and Basic

permit holders to perform risk assessments

Description: Prior drafts of the CAO rules included only holders of Title V, Simple, Standard and two

categories of General ACDP in this requirement. Adding in all General ACDP categories plus Basic ACDPs

substantially expands the scope of sources that DEQ could require to perform risk assessments. DEQ

should consider whether the greatly increased workload caused by including all General ACDPs is

worthwhile, given their likely low risk.

Response: DEQ agrees with the commenter that extra work would be needed if DEQ called in all General

and Basic permittees. DEQ has performed the emissions inventories for these permittees. During the

ranking process, DEQ will use the Level 1 Risk Assessment Tool to estimate the risk of all permittees.

DEQ anticipates that the risk from most of the General and Basic permittees will be below the

Community Engagement Level so DEQ will not require these sources to perform risk assessments. There

may be an instance when some of these permittees pose higher potential risk and DEQ wanted the

ability to require those sources to do risk assessments.




Comment Category #333: Risk Assessment - Exclude off-site locations that are

owned/controlled by the source

Description: Commenter requests that DEQ clarify that any properties within the control of the source,

with or without a structure, and regardless of zoning, should be excluded if the source has control of the

occupation of the premises.


Item G 001427


Response: Risk action levels are designed to protect the health of people who spend time near the

facility. DEQ agrees that if a source owns residential properties adjacent to the facility that are used only

by employees during working hours or that remain unoccupied, that location should be subject to

occupational exposure standards set by OSHA and should not be considered a residential location under

Cleaner Air Oregon.

However, if residential property owned by the source is rented or used by non-employees (including

customers and family), then the property should be considered residential. If the use or ownership of

the property changes, DEQ must be notified and risk assessments and risk reductions plans must be

updated accordingly in advance of any changes to the use of the property. If neighboring residential

locations are not owned by the facility, this exemption is unlikely to substantially change risk

calculations and risk reduction requirements.

SB 1541 states that a person in control of the air contamination source may elect to have the emissions

from the air contamination source evaluated and regulated based on modeling of "the impacts by toxic

air contaminants on locations where people actually live or normally congregate.” There is a

presumption that people actually live or normally congregate in locations in the manner allowed by the

land use zoning for the location, based on the most recent zoning maps available. Since people do not

actually live or normally congregate in areas planned to be zoned for residential or nonresidential use,

DEQ removed that rule language.

The rule also now states that "an owner or operator may provide documentation to demonstrate an

area is not being used in the manner allowed by the land use zoning at the time the modeling is to be

performed... If DEQ approves the exclusion, the owner or operator must annually submit to DEQ

documentation showing the excluded zoned areas continue to not be used in the manner allowed by

the land use zoning applicable to the area." This language ensures that risk assessments focus on actual

uses of nearby receptors.




Comment Category #334: Risk Assessment - include ancillary emissions such as

from transportation related activities

Description: Cleaner Air Oregon should hold stationary sources accountable for reducing emissions that

are directly related to facility operations, including from generators, on-site equipment use, and idling

trucks drawn to the permitted source. The rules should include these background sources in calculations

of a source’s risk, as well as in a source’s required risk reduction.

Response:


Item G 001428


DEQ regulates "sources" in the air quality permitting program. Oregon Administrative Rules Division 200

defines a source as “any building, structure, facility, installation or combination thereof that emits or is

capable of emitting air contaminants to the atmosphere, is located on one or more contiguous or

adjacent properties and is owned or operated by the same person or by persons under common control.

The term includes all air contaminant emitting activities that belong to a single major industrial group,

i.e., that have the same two-digit code, as described in the Standard Industrial Classification Manual,

U.S. Office of Management and Budget, 1987, or that support the major industrial group." Sources are

required to submit a complete emissions inventory of all stationary equipment onsite, including

generators. Generators must meet EPA standards.

The definition of source does not include mobile sources such as trucks and passenger cars so DEQ does

not regulate mobile sources in air permits. Mobile sources are required to meet engine standards set by

EPA. Please see the response to the category "Purpose - CAO should include all emissions (background

too)."




Comment Category #335: Risk Assessment - include senior citizens and workers

in sensitive populations

Description: Seniors should be considered a sensitive population, as well as workers.

Response: DEQ agrees that seniors should be protected as a sensitive population. Toxicity reference

values provided in Table 3 are established based on protection of sensitive individuals, including elderly

individuals. TRVs incorporate a range of uncertainty factors, one of which is used to provide protection

to sensitive members of a population.

DEQ recognizes that workers in businesses using toxic chemicals are generally exposed to higher

concentrations of chemicals than residents or non-residents located near the facility. However, DEQ

does not have authority over exposure to workers exposed by industrial use of chemicals. Workplace

exposure is regulated by OR-OSHA. However, workers are considered in CAO to the extent that they are

exposed to chemicals emitted from a nearby facility.





Item G 001429


Comment Category #336: Risk Assessment, Level 1 Tool - nearest isn't

necessarily highest exposure locations

Description: The Level 1 Risk Assessment uses the Lookup Table to estimate air concentrations at the

nearest chronic and acute expose locations. Although stack heights are considered in the lookup table,

wind directions and temperature of emissions are not, and the nearest receptors may not always give

the highest concentrations. This process should at least identify chronic and acute exposure locations

using comprehensive wind directions.

Response: DEQ agrees that maximum air concentrations may not always occur at the nearest exposure

location. The dispersion factors shown in the Level 1 Lookup Tables were modeled at each receptor

distance using a set of conservative emission temperatures, stack parameters, building parameters,

wind directions, and wind speeds. Therefore, the dispersion factors developed at all receptor distances

in the Lookup Table are the result of a very conservative combination of these parameters, and are

themselves conservative.

Although a refined model may show highest impacts from the same stack building configuration at a

greater distance than the nearest receptor, these concentrations will be less than the results in Table 6

that give the highest dispersion factor for each stack height associated with the shortest distance from

the source. Actual, representative wind data is not used until Levels 3 and 4 risk assessment are done

and will result in lower modeled concentrations and risk. Air dispersion modeling for Level 3 and 4 risk

assessments will evaluate multiple exposure locations, and will be able to determine the maximum

concentration wherever it is located relative to the facility.




Comment Category #337: Risk Assessment - Proposed risk assessment process

does not account for reproductive and developmental chemicals

Description: "For many reasons..... DEQ's recommended risk assessment methods are not based on

current science and should be revised to consider.....reproductive and developmental toxicants."

Response: The risk assessment process in CAO is designed to account for reproductive and

developmental toxicity to the extent possible with existing evidence. TRVs are typically established

based on the most sensitive endpoints observed in the existing body of scientific literature. For some

chemicals, reproductive and developmental effects are the most sensitive endpoints and therefore

serve as the basis for TRVs. TRVs for chemicals that have never been tested for reproductive and


Item G 001430


developmental toxicity typically incorporate uncertainty factors that provide an additional safety buffer

for sensitive populations in the face of data gaps.

Risk management decisions in CAO may be more cautious for chemicals with potential developmental

toxicity. Toxic air contaminants that are known to cause developmental or other severe health effects

will be identified with the help of the Hazard Index Technical Advisory Committee. This volunteer

committee of experts gathered by DEQ is due to meet during the Fall of 2018 and has been assembled

to address toxic air contaminants with developmental or other severe health effects. The toxic air

contaminants identified by HI TAC may be held to lower (more cautious) RALs, as stipulated in Senate

Bill 1541, through a separate, public rule-making process.




Comment Category #338: Risk Assessment - put detailed methodology in rule

Description: Risk assessment methodology greatly affects the calculated risk, so it needs to be in rule.

Response: TRVs and RBCs are key parts of the risk assessment process, and are specified in Division 245

of the proposed CAO rules. If TRVs and RBCs are changed to incorporate new science in the future, that

would require EQC rulemaking, along with meeting necessary notification and public review

requirements.

Some other elements of the risk assessment process are not included in rule. It is important to stay

current on procedures to evaluate risk as accurately as possible. By specifying current approaches in

recommended procedures, DEQ can stay up-to-date on changes to improve risk assessment

methodology. As mentioned in the comment, a key component of exposure assessment is the use of air

dispersion models. Similar to the criteria pollutant program, the most current version of the air

dispersion model should be used in CAO.

It is common practice for EPA and DEQ to use guidance and procedure documents to assist the

regulated community with how to comply with regulations. Following the procedures is not a

requirement in rule. The documents are prepared so that a facility that follows the procedures will have

more confidence that DEQ will approve their work. It is possible a facility can be in compliance with rules

without following the procedures, and DEQ may take action in variance with the procedures.





Item G 001431


Comment Category #339: Risk Assessment - should not require DEQ approval of

risk assessment that shows facility is de minimis

Description: Sources that do not qualify as exempt must perform risk assessments by following the Level

1 through 4 Risk Assessment procedures; one potential result could be risk below a de minimis levels. To

reduce its workload and allow DEQ to focus its resources on higher risk sources, the rules should not

require DEQ to approve a source's de minimis determination. The proposed rules should create classes

of activities that are exempt and allow sources to determine whether they are exempt and do not

require DEQ approval, similar to the Clean Water Act and Resource Conservation and Recovery Act.

Response: If a source has to perform any level of risk assessment to prove they are de minimis, DEQ and

OHA must review the risk assessment to see if it was done correctly, especially a Level 4 risk assessment

that includes modeling and exposure assumptions. Even though the risk may be below de minimis levels,

the work to prove that determination may be onerous and must be paid for by the source.

DEQ has provided a definition of exempt Toxic Emissions Units and sources that facilities can use to

determine whether they are exempt and do not require further analysis or review.

DEQ is focusing on higher risk sources by calling in sources with the highest potential risk first. Only Title

V, Standard and Simple Air Contaminant Discharge Permittees will be reviewed to find the sources with

the highest potential risk. Basic and General permittees may be called into the program after DEQ has

evaluated risk from Title V, Standard and Simple Air Contaminant Discharge Permittees if their potential

risk warrants call-in.




Comment Category #340: Risk Assessment - supports assessing cumulative risk

across multiple chemicals emitted by a facility

Description: Commenter support approach to cumulative risk


comment.




Item G 001432


Comment Category #341: Risk Assessment - use Portland Air Toxics Assessment

to estimate risk

Description: CAO source modeling should use exposure adjustments based on population activity

patterns as was done in the Portland Air Toxics Assessment project using EPA's HAPEM model.

Response: The Portland Air Toxics Assessment (PATA) was a 2006 pilot modeling project that predated

the more comprehensive Portland Air Toxics Solutions (PATS) project in 2011. PATA used exposure

assumptions from the HAPEM5 model based on the activities of various cohorts of the population in

order to adjust potential toxic air contaminant exposure estimates. These exposure adjustments were

not made in the PATS study because uncertainties in the exposure calculations for a modest refinement

in concentrations, coupled with the uncertainties of the air quality modeling results, did not warrant the

expense of resources to do the work. DEQ believes that use of exposure adjustments is also not

necessary in Cleaner Air Oregon AERMOD modeling. AERMOD, which is designed for individual industrial

facilities, will provide more accurate estimates than the PATA and PATS modeling because it will employ

more accurate and specific information about emissions, release points, building size and configuration,

more representative meteorology, a dense modeling receptor grid, and actual locations of human

receptors. Because Cleaner Air Oregon seeks to achieve public health protection objectives using

specific risk action levels established by Senate Bill 1541, the exposure adjustment factors used in PATA

research are not applicable. PATS and PATA were both efforts to understand toxic air contaminant risk

for the whole Portland region with a goal of reaching one in a million and a hazard index of one for

individual pollutants.




Comment Category #342: Risk Assessment - use process defined in Hazardous

Substance Remedial Action Rules, division 122

Description: The risk analysis approach is ill-defined and should instead be consistent in level of detail

and approach as that used in well-established DEQ processes, such as those found in OAR Chapter 340,

Division 122, Hazardous Substance Remedial Action Rules.

Response: DEQ based the CAO risk assessment approach on the process used in DEQ's Cleanup

Program, OAR 340-122. Both procedures start with the development of a conceptual site model to

establish reasonably likely exposure scenarios. DEQ agrees that in a heavy industrial area, it is unlikely

that residential exposure will be relevant, at least within close proximity to a facility.

Similarly, consideration of sensitive receptors should be established as part of the conceptual site

model, and, as appropriate, included or omitted from the risk assessment. Air emissions have the

potential to impact areas long distances from a source, so this will need to be taken into account when

considering potential exposure populations. For example, it is possible that residential neighborhoods


Item G 001433


that are not adjacent to an industrial facility will need to be evaluated for potential impacts from

emissions.




Comment Category #343: Risk Limit - Clarify that the term includes limits on raw

materials used and use term consistently throughout rules

Description: The proposed CAO rules define "Risk limit" as a "limit in a permit or permit attachment that

serves to limit the risk from a source or part of a source. Such limits may include, but are not limited to,

limits on risk from the source or part of a source, limits on emissions of one or more air toxics, limits on

emissions from one or more TEUs, or limits on source operation." DEQ should revise the definition to

include "limits on raw material usage." In addition, where the term "risk limit" is used under OAR 340-

245-0080, DEQ should ensure that the term "risk" is capitalized consistent with the definition.

Response: DEQ agrees that limits on raw material usage can be set to risk limits and has changed the

proposed rules to include limits on raw material usage.

When DEQ defines terms, the first word of the definition is capitalized. The term "risk limit" is not

capitalized but the term "Source Risk Limit" has been capitalized consistently throughout the rules

because that term is the title of a rule and a concept DEQ wants to emphasize.




Comment Category #344: Risk Reduction - do not duplicate reporting

requirements

Description: Proposed OAR 340-245-0130(7)(a)(D) requires the source update DEQ when the Risk

Reduction has been completed about information that may well have already been provided. See OAR

340-245-0130(6)(a) requiring some information to be provided in semi-annual reports. Additionally, this

subsection becomes a “proof of compliance” requirement that is unnecessary. The reporting in

subsections (6) and (7) are redundant and create hurdles to compliance with no benefit.


Item G 001434


Response: OAR 340-245-0130(7)(a)(D) requires the source update DEQ when the Risk Reduction has

been completed.

OAR 340-245-0130(5)(a) [renumbered from (6)] requires that a source reduce risk within two years of

the effective date of the permit. These are not the same requirement. OAR 340-245-0130(5) contains

Risk Reduction Plan implementation deadlines. OAR 340-245-0130(7) contains reporting requirements.




Comment Category #345: Risk Reduction Plan - allow more time

Description: The amount of time to develop a Risk Reduction Plan is not sufficient, especially if the

preferred option is to implement a change in the process. Evaluating and changing production inputs or

processes can take longer than control technology determination and installation

Response: DEQ has included a provision that owners or operators can request an extension in the

submittal deadlines if the delay is necessary, for good cause shown by the owner or operator, related to

changes in relevant data, analysis, operations or other key parameters necessary to complete the

submittal.




Comment Category #346: Risk Reduction Plan or TBACT Plan Requirements -

modify extension approval procedures

Description: Commenter recommends DEQ amend the provision to include express reference to the

requirement that extensions of time to implement a Risk Reduction or TBACT Plan will be granted only

upon a showing of good cause and require a mandatory public hearing before any additional extensions

are approved, or include an express prohibition on any additional extensions of time to implement the

Plan beyond the first two year extension.

Request for extensions to compliance dates should be allowed as little as 30 days before a compliance

date. The proposed rules require a request for extension 180 days before a compliance date (OAR 340-

245- 0220(8)(c)). However, delays are often due to manufacturing delays for pollution control

equipment or troubleshooting during the shakedown period. Neither of these issues demonstrate a lack

of good-faith effort and neither is likely to be known 6 months before the compliance date.


Item G 001435


Response: DEQ agrees with the commenter that the owner or operator must make a showing of good

cause when requesting an extension of time to implement a Risk Reduction Plan. The local community

should know that potential risk will not be reduced on the timeline included in the permit so DEQ is

requiring that a permit modification must be done to approve a compliance date extension. An

extension would require public notice with potential for a public hearing if requested. Because of the

public notice requirements, DEQ can only shorten the time required to request an extension from 180

days to 90 days before the compliance date. DEQ has changed the proposed rules to eliminate the

TBACT Plan and just make the TBACT requirement part of the Risk Reduction Plan, which is the

overarching plan to reduce risk.





Requirements should be reasonable

Description: We object to the language stating that DEQ will not consider the time for, or expenses of,

ambient monitoring when considering whether to grant an extension of the deadline for implementing a

Risk Reduction Plan. If a source commits the considerable time and expense associated with ambient

monitoring, and there is a reasonable possibility that the costs associated with the Risk Reduction Plan

would not be necessary based on the monitoring results, then that source should not be required to

make expenditures associated with the Risk Reduction Plan until monitoring results are available to

determine whether risk reduction is needed.

DEQ's approval of extension request should not be unreasonably withheld. Commenter requests that

DEQ make clear that a source making an extension request should only bear the burden of

substantiating its request to DEQ's "reasonable satisfaction."

Commenter requests that DEQ clarify that an extension request be granted when the requesting source

shows that its failure to meet the original plan implementation schedule is caused by an event that is

beyond the source's reasonable control despite its good faith efforts.

DEQ should make clear that a source which has resubmitted its Permit Attachment application after

addressing deficiencies in the Risk Reduction Plan identified by DEQ does not trigger any new or further

community engagement requirements.

Response: SB 1541 requires that DEQ allow sources to perform ambient monitoring and not reduce risk

unless potential risk from modeling is greater than four times the benchmark for excess lifetime cancer

risk or four times the benchmark for excess noncancer risk (200/20). When potential risk is greater than

200/20, DEQ can require sources to implement a Risk Reduction Plan before ambient monitoring is


Item G 001436


performed or if ambient monitoring showed risk over the TBACT Level of 50/5. If ambient monitoring

shows that risk reduction is required, the cost of ambient monitoring is not related to the cost of risk

reduction.

DEQ has added language to the proposed rules that upon showing of good cause, DEQ may allow an

owner or operator not more than two additional years beyond the initial two years to implement risk

reduction measures. Good cause would include an event that is beyond the source's reasonable control

despite its good faith efforts.







procedures. Compared to having a prescriptive process in the regulations, this will allow for greater

detail and flexibility to tailor the community engagement process to the needs of communities.

DEQ would plan community meetings based on the level of risk and complexity associated with source

emissions as well as the communication and engagement needs of the community. It is important for

DEQ to retain flexibility and discretion in community engagement planning to ensure that the each

engagement process fits individual situations. If DEQ warrants that further community engagement is

needed after a source addresses deficiencies in a Risk Reduction Plan, then DEQ will schedule the

appropriate type of community engagement.





require shorter compliance time and no extensions

Description: Commenter opposes DEQ’s amendment of the draft rules to allow more time than was

proposed in the RAC draft of the rules for implementation of a Risk Reduction or TBACT Plan at a source

that exceeds the Accelerated Schedule Risk Action Level. Sources that pose greater health risk to the

community should be required to reduce risk as quickly as possible, hence the name Accelerated

Schedule Risk Action Level. The potential for such sources to receive up to two additional years to

implement the Plan adequately accounts for any necessary additional time for a source based on a case-

by-case determination. Accordingly, we request that DEQ amend subsection (7)(c)(A) as follows: “The

Plan must be fully implemented within one year from the initial Plan approval date; and” Additionally,

given the public health risk of sources that exceed the Accelerated Schedule RAL, we propose that

subsection (7)(b)(B) include an express prohibition on any additional extensions of time to reduce risk.


Item G 001437


Response: DEQ makes a distinction between the implementation time for facilities exceeding acute and

chronic risk levels. For exceedances of acute risk levels, risk reduction must be implemented within 1

month of the permit. DEQ considers this the shortest reasonable amount of time for taking action. The

time may be extended a few months depending on the severity of the health effects and the degree of

uncertainty about the screening values. In contrast, if there is a very high exceedance of acute effects,

DEQ and OHA can obtain a cease and desist order to protect public health.

For chronic screening, there is less concern about immediately implementing risk reduction actions

because of the longer averaging times used to evaluate risk. However, depending on the severity of the

health effects and the degree of uncertainty about the screening values, DEQ may shorten the period for

implementation from a typical limit of 2 years. In other cases, as appropriate, DEQ can grant an

extension in the time allowed to implement risk reduction actions.





require source to provide Comprehensive Health Risk Assessment

Description: Commenter suggests DEQ amend the proposed rules as follows: “The owner or operator

must provide public notice of the meeting at least 30 days before the meeting date. The public

notification must, at a minimum, meet the requirements of OAR 340-245-0250(3) and include the Plan

and the application, and, if applicable, the Comprehensive Health Risk Assessment. . . .”









DEQ has clarified in the proposed rules that an owner or operator must perform a Level 3 or Level 4 Risk

Assessment if a Risk Reduction Plan is required. As stated in other responses, all submittals will be

posted on DEQ's website.




Item G 001438



Comment Category #350: Risk Reduction - sources should be allowed to stop

voluntary risk reduction at any time

Description: A Voluntary plan is voluntary; if a source, for whatever reason, elects to not continue with

the voluntary effort, the source must have the unfettered right to stop. There may be some other

requirements DEQ can pursue, but fundamentally a voluntary program can be stopped and this

subsection should be revised.

Response: The proposed rules state "If the owner or operator does not implement the Voluntary Risk

Reduction Plan within the approved time, DEQ may initiate the community engagement requirements

under OAR 340-245-0120." This rule language would address if a source chooses not to continue the

voluntary effort.




Comment Category #351: Risk Reduction - voluntary risk reduction is not

required

Description: In the opening clause of subsection OAR 340-245-0130(1), the rule uses “must” and yet the

rule includes voluntary efforts; see 340-245-0130(1)(d). Instead, the introduction should say that a Risk

Reduction plan for an existing source “can include” or “may include” and then list the options.

Response: OAR 340-245-0130(1) says:

Risk Reduction Plan for an existing source must:

(a) Reduce risk to less than or equal to the Risk Reduction Level within the specified period of time;

(b) Reduce risk to less than or equal to the TBACT Level within the specified period of time;

(c) Reduce risk as much as possible for all significant TEUs for a source that is not able to reduce risk to

less than or equal to the TBACT Level; or

(d) Reduce risk to less than or equal to the Community Engagement Level if the owner or operator

voluntarily agrees to do so.

If a source chooses to reduce risk to less than the Community Engagement Level to avoid community

engagement, then the source is required to reduce risk and that requirement will be included in the

toxic air contaminant permit.


Item G 001439





Comment Category #352: Risk Reduction - what are "health factors" considered

for acute risk reduction

Description: Clarify intent of "health factors" considered for acute risk reduction.

Response: The health factors for determining whether to allow an extension to acute risk reduction

include, but are not limited to, severity of acute health effect, degree of scientific certainty, and

averaging time of the acute TRV used to develop the RBC. To clarify this rule, the text will be revised to:

"(B) DEQ may allow the owner or operator up to 12 months after the effective date of the Toxic Air

Contaminant Permit Addendum, based on an evaluation of health factors including but not limited to

severity of acute health effect, degree of scientific certainty, and averaging time of the acute TRV used

to develop the RBC."




Comment Category #353: Risk Reduction - what is the effective date

Description: Proposed OAR 340-245-0130(6)(a)

This subsection mentions an “effective date” but without sufficient reference. Based on a related

subsection, 340-245-0130(6)(b)(A) we presume the words “of the Toxic Air Contaminant Permit

Addendum,” should be included and we request that clarification be made.

Response: DEQ added that the effective date is when the Toxic Air Contaminant Permit Addendum is

issued.




Comment Category #354: Rule Language - do not use permissive language


Item G 001440


Description: DEQ should amend the permissive language throughout the draft rules. The draft rules

provide DEQ, the Director, and regulated sources with significant discretion. To ensure this discretion

does not jeopardize the public health, when using the word “may,” DEQ should provide a limitation on

the discretion. For example, DEQ could require a demonstration of good cause or a public participation

process. This would ensure all discretionary decisions are transparent, and it would hold DEQ and

sources accountable to the public.

Response: DEQ uses mandatory language for legal mandates and discretionary language for areas

involving implementation where there is an anticipated need for flexibility and use of agency

judgement. As Cleaner Air Oregon is a new program, there is a need for some level of flexibility during

initial implementation.




Comment Category #355: Rule Language - use plain language

Description: The rules need to be re-written to be fully comprehensible to all citizens.

Response: DEQ will be making several changes in the final regulations to make them more

understandable. DEQ strives for clear and as non-technical language as possible. However, air quality

permitting rules are very complex because DEQ has an existing complex permitting program, and most

of the steps in the new program for toxic air contaminants must refer to technical evaluations, steps and

conditions. Since the Cleaner Air Oregon program and the associated Toxic Air Contaminant Permit

Addendums will be in addition to current air quality permits, the rules were written in a way to dovetail

with existing air quality permitting rules. DEQ has avoided using acronyms as much as possible in the

Cleaner Air Oregon rules and added a Purpose and Overview section to the rules to help orient readers.

For further ease of understanding, DEQ has consolidated all of the public engagement requirements into

one section.

Because the regulations are technical and complex by nature, DEQ has provided a rules guide, a simple

abbreviated version of the rules to help all citizens in reading the rules. DEQ believes that further efforts

to assist with understanding of the regulations could potentially expand on the rules guide with

examples and more detailed rule explanation.





Item G 001441


Comment Category #356: Rulemaking - start with a reporting-only program

now, and require risk reductions in a later phase

Description: DEQ should start with a reporting-only program and add the requirement for risk

reductions later because DEQ does not know how many businesses will be affected.

Response: Commenters have noted, correctly, that DEQ does not know which sources will be required

to reduce emissions under CAO, or how much it will cost those sources to complete those risk

reductions. Impacts to sources will depend on the results of site-specific risk assessments and choices

made by permittees. By using a call-in process to phase in CAO requirements over time, DEQ plans to

begin the process of getting risk reductions to protect public health near the highest risk facilities, as

those risks are identified, rather than leaving protection of public health to a later phase of the rules.

This approach was supported by the Oregon Legislature in Senate Bill 1541.




Comment Category #357: Significant TEUs - requirements are unclear, especially

regarding simultaneous risk reduction

Description: The requirements for new or modified significant TEUs are unclear. In addition, if a source

chooses to offset risk from a new or modified TEU by

operating some TEUs less than others so as to accommodate new or modified TEUs, this requirement to

is inappropriate and unnecessary.

Response: DEQ has simplified and clarified what an owner or operator is required to submit for

construction approval of a new or modified significant TEU. DEQ agrees with the commenter that in

some situations, operating some TEUs less than others to offset new or modified TEUs does not need to

be identified in the permit. Owners or operators are responsible for complying with Source Risk Limits

and can do so in any manner but the compliance demonstration method must be approved by DEQ. In

other situations, the TEU that is offsetting the new or modified significant TEU will need permit

conditions limiting its operation.





Item G 001442


Comment Category #358: Source Risk Limits - Compliance with RALs negates

need for Source Risk Limits

Description: Permits for sources that comply with the applicable source risk action levels should not

have annual and daily risk limits in their air toxics permit attachment. The proposed rules state that the

air toxics permit attachment will contain limits established under OAR 340-245-0310. Facilities in

compliance with the applicable RALs, particularly those that demonstrate compliance using pre-existing

potential-to-emit, do not require a limit in their permit.

Response:

Under the proposed rules, facilities that are above the Source Permit Level need to show compliance on

an ongoing basis, through compliance with enforceable limits in their permit. SB 1541 did not preclude

DEQ from setting such limits. If the facility, when operating at the PTE in their operating permit, is

already below risk action levels, then their normal operation should allow them to stay below risk action

levels going forward. DEQ's existing permit program currently permits sources with low emissions to

ensure they are complying with all applicable requirements. DEQ based the Cleaner Air Oregon program

on the same approach.




Comment Category #359: Source Risk Limits - exceedance should not be a

permit violation

Description: DEQ should add rule language clarifying that if a CAO Source Risk Limit is added to a

source's permit, and the source exceeds that limit, then the exceedance is not a violation if the source

takes steps to address the exceedance. The complexity of monitoring under a Source Risk Limit and the

multiple layers of conservativeness in the program assumptions make it difficult for sources to comply

and ensure that it is highly unlikely that an isolated exceedance would create any significant risk.

Response: As DEQ stated in the proposed rules:

"The purpose of a Source Risk Limit is to limit the chronic and acute risk from a source that emits toxic

air contaminants. DEQ will establish Source Risk Limits based on the results of the risk assessment

performed under OAR 340-245-0050. DEQ will establish Source Risk Limits separately for each of the

following risk categories: chronic excess cancer risk, chronic noncancer risk and acute noncancer risk."


Item G 001443


Source Risk Limits are not emission action levels under OAR 340-226-0120; they are permit limits under

Division 245. If a source exceeds a permit limit, that is a violation and DEQ will take enforcement. DEQ

has made a distinction in Division 12 that the exceedance of a Source Risk Limit set at a Risk Action Level

has a magnitude of major, otherwise the magnitude will be determined under OAR 340-012-0130.

Magnitude is a finding based on the extent and effects of a facility’s deviation from statutory

requirements, rules, standards, or permits. Magnitude can be minor, moderate and major.




Comment Category #360: Source Risk Limits - Express limits in terms of risk

Description: Air Toxic Permit Attachment Limits should be in terms of risk, should not be tied to other

operating parameters, and should not be used to force modifications to standard permits. DEQ should

focus on the purpose of this program - to reduce risk where needed while looking for opportunities to

provide flexibility to businesses. Many operations at industrial facilities are complex and have an

element of unpredictability. An example would be a coating line - it can be very difficult to predict in

advance the coatings that customers of a business will specify for purchase. If a facility can maintain an

acceptable, or equivalent risk profile these types of changes should be allowed under permit

attachments. DEQ should not use this program inappropriately to impose operating limits or limit

operating conditions.

Response: The proposed CAO rules do not set a constraint on whether permit limits could be set in

terms of risk, emissions, production rate, or raw material usage. The type of CAO permit limits

incorporated into a source's permit would be determined on a case-by-case basis in accordance with

what is feasible at that facility.




Comment Category #361: Source Risk Limits - model actual emissions to

estimate risk

Description: Oregon businesses should not be regulated on emissions they don’t emit. Basing emissions

and risk assessment on pre-existing PTE will result in a greater estimated risk from operations than

communities actually experience. SB 1541 expressly limits DEQ’s authority to regulate sources on

potential to emit. Under SB 1541, if an existing source has actual emissions above the TBACT Level, then

DEQ has the legal authority to regulate the source and require imposition of a Source Risk Limit, TBACT


Item G 001444


plan or Risk Reduction Plan. SB 1541 does not extend to DEQ the authority to require a permit or impose

a Source Risk Limit on a source whose actual emissions do not indicate that it has impacts above the

TBACT Level.

Commenter requests that DEQ allow sources to request Source Risk Limits at levels greater than what

was modeled. SB 1541 is explicit that DEQ cannot require a source to reduce risk unless that source

exceeds the benchmark for excess lifetime cancer risk of 50 in 1 million.

As an alternative to DEQ's current proposal, one recommendation would be to require sources to

periodically re-evaluate and update their health risk assessment if actual emissions change materially

over a specified time period. Under this approach, a source would trigger, for example, additional CAO

requirements based on an actual increase in emissions. DEQ could establish a threshold in which to

evaluate emissions increases against levels protective of public health risks, while at same time

remaining consistent with the requirements in SB 1541.

Response: Sources are not required to base their risk assessment on potential to emit. Since Cleaner Air

Oregon is intended to be a health-based program, it is important to determine risk from a source based

on that source’s worst-case emissions. It would be incongruous with the stated goals of the program to

determine risk based on an emission rate that the source could later exceed without notification that is

was doing so.

Title V permit applicability, to name but one example, is evaluated based on potential to emit (PTE) as

the default case, but Title V regulations also allow a source to take emission limits to avoid having to

obtain a Title V permit. Oregon’s existing Title V and Air Contaminant Discharge Permit (ACDP) programs

also allow this, and a number of sources in Oregon have ACDPs with emission limits below the Title V

applicability thresholds so that they do not have to obtain a Title V permit. When a source wishes to

request limits to avoid a Title V permit, the source must determine the highest emission rate they are

likely to reach within the foreseeable future. This is generally associated with the maximum operating

rate of the business taking all factors into account. In many cases this results in an emission rate that is

actually below the Title V applicability thresholds, but a source may even decide to limit its operating

rate to keep its emissions below the Title V applicability threshold. In any event, the source must be able

and willing to keep its emissions to no more than the permit limits allow.

The proposed CAO rules follow the concepts described above. The proposed rules allow sources to

evaluate their risk based on either of the following:

• The source’s PTE in its current operating permit; or

• A PTE or risk limit that is lower than the source’s PTE in its current operating permit, if

requested by the owner or operator; and

• The actual toxic air contaminant emission rate of the source, if requested by the owner or

operator.

The source's PTE in its current operating permit allows a source to evaluate its PTE taking into account

any existing permit limits that serve to limit the emission rate of toxic air contaminants. In some cases,

this PTE will represent an operating rate that the source might reach, but that the source is able and

willing to not exceed. However, if a source finds that even its PTE in its current operating permit

overestimates the emission rates that might occur in the foreseeable future, then the source can select


Item G 001445


emission rates that limits PTE even further. The last option a source has is to select emission rates that

represent the actual rate of operation, provided that the source is willing to accept a permit limit based

on actual emissions. In summary, the proposed CAO rules parallel DEQ’s existing permitting approach of

allowing sources to take limits to avoid other regulatory thresholds, and allow sources to choose

between the PTE in the current operating permit, some other limit on PTE that the source is able and

willing to be limited to or actual emissions.

SB 1541 does not limit DEQ's authority to allow sources to choose Source Risk Limits based on some

level of potential to emit. SB 1541 says:

(3) For purposes of administration by the department of rules adopted under this section, rather than

evaluating and regulating the public health risks from toxic air contaminant emissions from an air

contamination source based on modeling for the potential to emit toxic air contaminants and land use

zoning, a person in control of the air contamination source may elect to have the emissions from the air

contamination source evaluated and regulated based on modeling for one or both of the following:

(a) Public health risk due to toxic air contaminant emissions from the air contamination source’s actual

production or, for a new or reconstructed air contamination source, the reasonably anticipated actual

production by the new or reconstructed air contamination source.

The language says a source "may elect" to have emissions based on actual rather than potential to emit.

The language does not say "must elect." DEQ has provided this option in the proposed rules.

Nowhere in SB 1541 does it state that DEQ cannot require permits for sources whose potential risk is

below the TBACT level. SB 1541 does state that DEQ cannot require sources that employ TBACT on all

significant TEUs to undertake additional measure to limit or reduce toxic air contaminant emissions

unless potential risk is greater than for times the benchmark for excess lifetime cancer risk or greater

than two times the benchmark for excess noncancer risk. Undertaking additional measures to limit or

reduce emissions is very different than requiring a permit.




500, 550, 556, 594, 624, 629, 631, 644, 655, 658, 667, 674, 671, 673, 672

Comment Category #362: Source Risk Limits - Object to expressing limits in

terms of risk

Description: Oppose requiring that permit limits be expressed in terms of highly uncertain Source Risk

Limits.

Response: Consistent with other regulatory programs, DEQ will apply risk action levels to calculated

reasonable maximum risks, not average estimates of risk. Although this approach does not necessarily

protect 100 percent of the population to acceptable risk levels, DEQ is confident that a high percentage

of the public will be protected. If regulatory levels are set to protect the average person in a population,


Item G 001446


that implies half of the population could be exposed to air concentrations above a health protective

level. This is not consistent with the goal of CAO.




Comment Category #363: Source Sampling Manual - General Duration and

Volume Requirement

Description: Section 2.7a now states:

“Unless otherwise specified by rule, permit condition, or source test plan approval letter, all air toxics

and hazardous air pollutants (HAPs) sampling programs must ensure adequate sample volumes so that

the mass recovered is at least five (5) times the limit of detection for the analytical method chosen.”

The above language is not technically feasible for many air toxics compounds in the draft CAO rule.

Many or most of the relevant air toxics compounds in the draft CAO rule, if present, would be expected

to be present at trace concentrations. Five times the limit of detection for such compounds could

require extremely large collection volumes and run times; for many stack conditions and test methods,

longer run times cause operational issues (i.e. moisture accumulation, interferences and sample hold

time issues). Additionally, the language above is not compatible with stack testing for compounds that

are not expected to be present or that may be present at unknown concentrations.

While the ability of a facility to request a change via a source test plan approval letter is acknowledged,

the presumption that all air toxics testing can achieve recovered masses at five times the limit of

detection is inappropriate. The language in Section 2.7a should be changed to reflect the unique nature

of stack testing for trace air toxics compounds and compound categories.

Response: The proposed language in section 2.7.a of the Source Sampling Manual says:

Unless otherwise specified by rule, permit condition, or source test plan approval letter, all toxic air

contaminants and hazardous air pollutants (HAPs) sampling programs must ensure adequate sample

volumes so that the mass recovered is at least five (5) times the limit of detection for the analytical

method chosen. Alternatively, the ISDL must be less than or equal to one-fifth (1/5) the emission

standard.

A sample volume of less than five times the limit of detection can be approved by rule, permit condition,

or source test plan approval letter.





Item G 001447


Comment Category #364: Source Sampling Manual - non-detect dioxin and furan

results should be treated as zero

Description: The proposed addition to the Source Sampling Manual Section 2.11c should be removed.

Results that are below In-Stack Detection Limits should be treated as zero rather than 1/2 the detection

limit when doing a toxicity equivalency factor calculation of the total dioxin level, to be consistent with

EPA Method 23, TRI, and AP 42.

Response: The Source Sampling Manual provides general guidance for both stakeholders and DEQ staff.

In all source testing projects, the sampling and analytical methods must be performed in a manner that

meets all data quality objectives of the programs for which the measurements support. The Source

Sampling Manual cannot address all objectives for all programs, and therefore the following language

can be found within section 2.11.c. of the Source Sampling Manual to provide flexibility: "Therefore,

unless otherwise stated by method, rule, or permit, the following reporting procedures are to be

followed when results from replicate tests are below the in-stack detection limit." It also says, "A specific

regulation, method, or permit condition may dictate other calculation procedures to be followed in

combining non-detectable with measured quantities within a composite result; these shall take

precedent over the above-described approach."




Comment Category #365: Source Sampling Manual - non-detect should be

replaced with 1/2 of the detection limit

Description: DEQ's proposed source testing requirements would overestimate concentrations of toxic

air contaminants that are not detected. In order to be consistent with standard stack testing practice

and EPA guidance, the Source Sampling Manual section 2.11c, "Reporting Results that are below In-

Stack Detection Limits (ISDL)" should be edited so that non-detected values are replaced with 1/2 the

ISDL rather than replacing those values with the ISDL. In addition, DEQ should adopt methods used by

the South Coast Air Quality Management District to allow non-detected values to be treated as zero if a

large proportion of results are non-detect.

Response: DEQ is not proposing to include the change to section 2.11.c of DEQ's Source Sampling

Manual described by the commenter as part of this rulemaking. In the context of DEQ's existing air

permitting programs, it is DEQ's practice to use the ISDL to replace non-detect values in source testing,

"unless otherwise stated by method, rule, or permit..." DEQ is not proposing to change this practice for

DEQ's existing air permitting programs.


Item G 001448


However, DEQ recognizes that non-detect values may warrant special treatment in the context of CAO

risk assessments, because CAO risk assessments are cumulative across multiple chemicals and emissions

units. DEQ is proposing changes to the Source Sampling Manual so that risk assessments used in Cleaner

Air Oregon can use different procedures to handle non-detect data in stack tests. DEQ removed the

proposed language from division 245 regarding non-detect source test results. DEQ also added text to

the Risk Assessment recommended procedures document to explain current thinking on this issue.

If, in a source test that meets other criteria, non-detect results are encountered, DEQ plans to use this

procedure when using results for Cleaner Air Oregon:

• If a chemical is not detected in any test run, assign a zero value to the chemical.

• If a chemical is detected in <10% of test runs, then assign a zero value for all results that were below

the limit of detection, and calculate the arithmetic mean.

• If a chemical is detected in ≥10% of test runs, then for all runs that were below the limit of detection,

assign one half (1/2) the detection limit and calculate the arithmetic mean.

This is similar to the method listed in the South Coast Air Quality Management District's Risk Assessment

Procedures for Rules 1401, 1401.1 and 212, version 8.1. However, DEQ's method would differ from

South Coast in cases where there are less than 10 samples.

This represents DEQ's recommended procedure and is not an enforceable rule. DEQ will review source

test plans and data on a case-by-case basis.




Comment Category #366: Staffing - more toxicologists

Description: Hire more toxicologists

Response: The staffing model for Cleaner Air Oregon includes 1 risk assessor, 0.75 of a lead toxicologist,

and 0.75 of a public health toxicologist. DEQ and OHA have estimated that 2.5 toxicologists are the

appropriate amount to implement Cleaner Air Oregon based on the time needed to provide technical

assistance and review health risk assessments.




Comment Category #367: Submittal deadlines - allow more time


Item G 001449


Description: The submittal deadlines do not allow sufficient time for sources to prepare and submit the

required information.

The ability to request an extension in submittal deadlines is limited to where the delay “is related to

reasonably unforeseeable changes in relevant data, analysis, operations or other key parameters.” This

means that the extension process may not be available to sources who fully recognize at the outset of

the process that the breadth of information required by DEQ cannot be collected in the time period

allowed due to such factors as consultant or source tester availability, loss of key personnel or deadlines

imposed by other regulatory programs. DEQ should delete the word unforeseeable” from proposed OAR

340-245-0030(3)(a) and include language allowing an extension for “other good reason.”

DEQ has reserved for itself the right to “modify” the emissions or risk information submitted by a source

if DEQ decides that one or more aspects of the submittals are not “approvable.” This proposed provision

give unchecked discretion with DEQ to calculate for itself a source’s emissions or risk, regardless of the

information available to the agency or whether its approach is accurate or complete.

Submittal of the risk assessment keys off of the date that DEQ approves the component parts (e.g.,

emissions inventory, modeling protocol and work plan) but the approvals should be final and not

preliminary as proposed.

Response: DEQ has extended the submittal deadline for the emissions inventory from 30 to 90 days. In

addition, DEQ has also provided sources the ability to request an extension for submittal of all Cleaner

Air Oregon submittals. DEQ has modified the proposed language about when a source can request an

extension to include language "for good cause shown by the owner or operator."

DEQ already has the ability to use data that it thinks is more accurate than that submitted by a source in

the existing criteria pollutant program. See OAR 340-222-0035(2): DEQ may change source specific PSELs

at the time of a permit renewal, or if DEQ modifies a permit pursuant to OAR 340-216-0084,

Department Initiated Modifications, or 340-218-0200, Reopenings, if DEQ determines errors were made

in calculating the PSELs or more accurate and reliable data is available for calculating PSELs.

In most cases, DEQ anticipates that sources will submit accurate data on a timely basis and this provision

would not be used very often.

DEQ has modified the proposed rule language that sources must get approvals for each component of

the risk assessment before submitting the next component.




624, 631, 665, 912

Comment Category #368: Submittals - do not require modeling if source test

data is submitted


Item G 001450


Description: Proposed OAR 340-245-0030(a), (b) and (c).

Reading these subsections, plainly there appears to be a requirement for a source, in conjunction with

OAR 340-245-0210, to submit a plan for modeling even if the source has elected to perform source

testing to establish its emission inventory. Subsection (a) requires submission of an “updated modeling

protocol” and “[Risk assessment] work plan” prior to or with submission of source test data. If a source

coordinates with the department to perform a source test, other planning tools such as risk assessment

work plans and modeling protocols should want the results of the source test. The source test will likely

provide information that is useful to or critical for development of modeling plans and a risk assessment.

Response: Source testing to estimate emissions does not provide ambient concentrations to estimate

risk. Modeling or ambient air monitoring are needed to predict or measure concentrations that are then

used to estimate risk. DEQ always welcomes site specific source test data over emission factors to more

accurately estimate emissions.

The updated modeling protocol and risk assessment is required if the source chooses to submit source

test data that may be different from the emissions estimated used emission factors.




Comment Category #369: Support 12/22/2017 City of Portland comments

Description:

Response:



Comment Category #370: Support American Forest & Paper Association

comments

Description:

Response:




Item G 001451


Comment Category #371: Support Beyond Toxics comments

Description:

Response:



Comment Category #372: Support Clean Corvallis Air comments

Description:

Response:



Comment Category #373: Support Crag Law Center, NAACP Portland Branch,

Neighbors for Clean Air, Northwest Environmental Defense Center, OPAL

Environmental Justice Oregon, Oregon Physicians for Social Responsibility, and

Verde comments

Description:

Response:



Comment Category #374: Support Eastside Portland Air Coalition comments

(comment #22)

Description:

Response:




Item G 001452


Comment Category #375: Support League of Women Voters comments

Description:

Response:



Comment Category #376: Support Multnomah County comments

Description:

Response:



Comment Category #377: Support NCASI comments

Description: Support National Council for Air and Stream Improvement, Inc. comments

Response:



Comment Category #378: Support Northwest Pulp & Paper Association

comments

Description:

Response:



Comment Category #379: Support Oregon Business and Industry Comments

Description:


Item G 001453


Response:



Comment Category #380: Support Oregon Forest and Industry Council (OFIC)

comments

Description:

Response:



Comment Category #381: Support Oregonians for Fair Air Regulations

Description:

Response:



894, 895, 896, 898, 900, 902, 903, 904, 906, 500, 610, 611, 623, 626, 644, 655, 658, 665

Comment Category #382: TBACT - an area source NESHAP should be considered

presumptive TBACT

Description: If a NESHAP is in place for a TEU, it should be assumed that TBACT is met, even if the

NESHAP is for area sources and not just major sources.

Response: SB 1541 states "For an air contamination source that exists as of the date that a program and

rules adopted under this section first become effective, compliance with emission control requirements,

work practices or limitations established by a major source National Emission Standard for Hazardous

Air Pollutants adopted by the United States Environmental Protection Agency after 1993 is deemed to

be toxics best available control technology..." SB 1541 did not include this provision for area sources.





Item G 001454


Comment Category #383: TBACT - an area source NESHAP should not be

considered TBACT

Description: An area source NESHAP should not be considered TBACT.

Response: Senate Bill 1521 states that TBACT will be presumed for major source NESHAPs. DEQ would

not want to expand presumptive TBACT to area source NESHAPs because they are less protective.




Comment Category #384: TBACT - clarify if cost effectiveness is based on a per

control equipment basis

Description: When multiple controls are required (e.g., baghouse for metals, thermal oxidizer for

organics) it is not clear if the cost effectiveness analysis must be completed on a “per control

equipment” basis or if the cost of controls can be added together.

Response: The cost effectiveness analysis must be completed on a per control equipment basis since

TBACT is specific to the type of toxic air contaminant and the control device needed to reduce that type

of toxic air contaminant. DEQ clarified the fee rules that if multiple TEUs are similar and require the

same pollution control device, one TBACT/TLAER fee may be due and payable to DEQ. If one TEU

required two different pollution control devices because it emitted different types of toxic air

contaminants (particulate matter and volatile organic compounds), then two TBACT/TLAER fees may be

due and payable to DEQ.




Comment Category #385: TBACT - clarify new or improved emissions control

measure rule language

Description: Proposed OAR 340-245-0140(4)(e)(A)(iii) appears to be missing words: “operation” of?

Perhaps it is intended to include the words, “new or improved control measure.”


Item G 001455





Comment Category #386: TBACT - Compliance with a NESHAP should be

considered TBACT

Description: If a source is compliant with a NESHAP, that source should be considered to have

implemented TBACT. This should not be limited to just sources that have completed the Risk and

Technology Review process as that process, as its name suggests, relates specifically to the residual risk

assessment after implementation of MACT. The purpose of TBA CT is to determine whether the best

controls are in place taking into account cost-effectiveness. MACT, on the other hand, establishes the

Maximum Achievable Control Technology with the technology floor established without regard to cost.

Response: Senate Bill 1541 adopted into law by the 2018 Legislature established that an existing major

source of toxic air contaminants that is in compliance with a federal National Emissions Standard for

Hazardous Air Pollutants (NESHAP) is deemed to have toxics best available control technology, provided

that:

(a) The emission control requirements, work practices or limitations result in an actual reduction to the

emissions of the hazardous air pollutants regulated under the NESHAPs; and

(b) There are no other toxic air contaminants emitted by the source that:

(A) Are not controlled by the emission control requirements, work practices or limitations established by

a major source NESHAP; and

(B) Materially contribute to public health risks.

(c) TEUs that are subject to and comply with OAR 340-244-9000 through 340-244-9090, Colored Art

Glass Manufacturing rules, or OAR 340-245-9000 through 340-245-9080, Colored Art Glass

Manufacturing rules, meet TBACT and a case-by-case determination is not required for such TEUs.




Comment Category #387: TBACT - Compliance with Colored Art Glass

Manufacturing rules should be considered TBACT

Description: Compliance with Colored Art Glass Manufacturing rules should be considered TBACT


Item G 001456


Response: DEQ agrees that the pollution control devices required for Colored Art Glass Manufacturers,

fabric filters (baghouses) with bag leak detection systems or a fabric filter with an afterfilter, would be

considered TBACT under Cleaner Air Oregon. Colored Art Glass Manufacturers would not be required to

perform a case-by-case TBACT determination.




Comment Category #388: TBACT - cost effectiveness calculation should include

an estimate of avoided health costs

Description: Any cost-benefit analysis for deferments, exemptions or conditional permits must have a

transparent process to determine what is “cost effective,” and the process must also include equations

for the burden of harm to nearby communities, to the environment and to public health. Health costs

analysis must include cancer and non-cancer illnesses. All equations must factor in additional

precautions for exposures to prenatal, children, the elderly and vulnerable communities. DEQ states that

there is a lot of uncertainty around air toxic exposure and negative health outcomes such as chronic

diseases (cancer, heart disease, stroke, asthma, neurological damage, etc.) and acute diseases (allergies,

rashes, headaches, sore throat, etc.). If that is true, then more emphasis must be placed on developing

the transparent and community-health based protocols to factor health costs into any decision about

granting permits. No matter if DEQ or OHA does not have exact formulas to attribute each chemical to a

health outcome and its associated health care and quality of life costs - it must establish a process and

use the most up-to-date data available. Importantly, the TRV must account for the uncertainty of acute

and lifetime risks for children’s exposures to air toxics.

Response: The agencies agree that health is an important part of the equation when considering what

emissions reduction steps should be expected of a facility. Potential health risks will be evaluated in the

risk assessment process for each facility. The agencies do not plan to translate potential health risks into

monetary estimates of health costs because there is no clearly established method for doing so that

could realistically be applied in the context of a regulatory program.

While costs of equipment upgrades or emissions controls are possible to quantify, costs of health

impacts are subject to debate over the precise number of cases of illness that could be attributed to

exposure, or how to account for social and emotional costs that are particularly difficult to quantify in

dollar amounts. For many chemicals, there is too much uncertainty around the precise nature of the

health effects to arrive at a specific numerical estimate of health costs.

Rather than try to calculate monetary estimates of health costs from emissions as part of TBACT

determinations, the program would evaluate costs in relation to the level of health risk estimated

through the risk assessment process. The RALs proposed in CAO set a limit on the level of health risk


Item G 001457


that is allowed, even for facilities with TBACT. If health risks exceed the risk reduction level (200 in 1

million cancer risk or a hazard index of 10), facilities must reduce risk regardless of costs.




Comment Category #389: TBACT - define "cost effective"

Description: Please define what “cost effective” means for TBACT. This must be an agreed upon term

and not another loophole for industry.

Response: Toxics Best Available Control Technology is a new regulatory concept for DEQ to regulate

health risk from toxic air contaminants through Cleaner Air Oregon. DEQ has done Best Available Control

Technology determinations for criteria pollutants and follows the South Coast Air Quality Management

District BACT guidelines:

PM10 $6,735/ton

SO2 $15,116/ton

NOx $28,585/ton

CO $599/ton

ROG $30,231/ton (Reactive Organic Gases, similar to VOC Volatile Organic Compounds)

Regulating toxic air contaminants for TBACT are on a different scale. The South Coast Air Quality

Management District has a well-established toxic air contaminant control program but does not include

cost effectiveness for TBACT in their TBACT determinations. DEQ has contacted other states that have

toxic air contaminant programs and needs to establish a database with TBACT determinations and cost

effectiveness criteria used by these states. Until that time, DEQ cannot define "cost effective."




Comment Category #390: TBACT - do not require TBACT on all significant TEUs


Item G 001458


Description: De minimis risk levels are low and facilities should be allowed more flexibility to develop a

reasonable risk reduction plan. A source should be required to evaluate and install TBACT only for those

TEUs that emit air toxics that contribute more than 20% of the risk at locations that exceed the RAL.

When a facility must go through the criteria pollutant best achievable control technology (BACT)

process, this causes significant burden on the regulatory authority to research and decide which

technologies are applicable to given emission sources. DEQ does not have a database of TBACT and will

have to rely on incomplete and difficult to find data from other states and authorities in order to

establish TBACT/TLAER for unique Oregonian air toxics emission units. TBACT/TLAER programs will also

require re-visitation of Plant Site Emission Limits for criteria pollutants as new incineration-based control

devices will increase criteria pollutants further complicating implementation of a TBACT/TLAER

emissions control standards program.

Response: Senate Bill 1541, adopted into law by the 2018 Legislature, established that an existing major

source of toxic air contaminants that is in compliance with a federal National Emissions Standard for

Hazardous Air Pollutants (NESHAP) is presumed to have "toxics best available control technology on all

significant emission units." At the time SB 1541 was passed, DEQ's proposed definition of “Significant

TEU” means a TEU that poses risk equal to or greater than the Significant TEU Level.

DEQ is proposing higher levels and a new way of setting de minimis levels for TEUs. DEQ is replacing the

Significant TEU Level with an "Aggregate Significant TEU Level" for both new/reconstructed sources and

existing sources. Instead of setting a per-TEU de minimis risk level, the Aggregate Significant TEU level is

on a per-facility basis. The facility owner or operator can designate one or more TEUs to be de minimis,

as long as their total risk fits below the Aggregate Significant TEU level. The Aggregate Significant TEU

level for new sources would be 0.5 in a million and an HI of 0.1. For existing sources, it would be 2.5 in a

million and HI 0.5.

DEQ agrees that it will have to rely on TBACT determinations done by other states with toxic air

contaminant programs. Assembly Bill 617 was passed by the California Legislature and requires the

California Air Resources Board to develop and maintain a clearinghouse of Best Available Control

Technology (BACT) and Best Available Retroactive Control Technology (BARCT) for criteria pollutants and

related approaches for reducing emissions of toxic air contaminants. DEQ does not know the timeline

for development of this clearinghouse but will be monitoring CARB's progress in hopes of using that data

as it becomes available.

DEQ agrees with the commenter that permit writers will need to re-evaluate Plant Site Emission Limits

for criteria pollutants based on the results of risk assessments and Source Risk Limits for Cleaner Air

Oregon. Some PSELs may need to increase and some reductions will be required as a result of CAO.





Item G 001459


Comment Category #391: TBACT Implementation deadlines - need more time

Description: The deadlines proposed for sources to implement TBACT are too short. As proposed, while

the default is for a source to have 2 years to implement TBACT, DEQ allows itself the unqualified

discretion to require a source to implement TBACT in less than 2 years. If DEQ is to require a source to

implement TBACT in less than 2 years, the rules must express reasonable criteria on which DEQ must

base the decision to do so.

If a source identifies at the outset that it needs more than 2 years to implement TBACT, then that

extended deadline would be included in the Permit Addendum. The requirement for a modification only

appears to be relevant if the need for the additional time is identified after the issuance of the Permit

Addendum.

Response: As stated in division 12, Enforcement Procedure and Civil Penalties, for enforcement cases

where a source is required to install a pollution control device, DEQ includes a compliance schedule in a

permit or a Mutual Agreement and Order with a detailed plan and time schedule for achieving

compliance in the shortest practicable time. Division 12 does not include criteria on which to base the

decision of the shortest practicable time. If a source is required to install TBACT in order to achieve

compliance with the TBACT Levels, DEQ will include a compliance schedule in a Toxics Air Contaminant

Permit Addendum and include the shortest practicable time.

The rules for permit addendum modifications address if a source needs an extension to a compliance

date. DEQ has deleted the sentence requiring application for a permit modification since the rule in

question addresses the initial establishment of a Risk Reduction Plan implementation deadline, which

would be addressed in the initial Toxics Air Contaminant Permit Addendum. DEQ has changed the

proposed rules to eliminate the TBACT Plan and just make the TBACT requirement part of the Risk

Reduction Plan, which is the overarching plan to reduce risk.




Comment Category #392: TBACT Implementation deadlines - need more time to

address acute risk

Description: The timeline for TBACT implementation for acute risk is too short. One to six months is not

enough time to construct emissions controls. There is a separate, preexisting statutory means of

addressing such sources that the Department has previously used, imminent and substantial danger

posed by a facility. There does not appear to be any basis for requiring that TBACT be implemented

within 1 month (with the possibility of up to a 5 month extension) if acute risk exceeds the TBACT Level.


Item G 001460


We recommend that DEQ revise the proposed rules for acute risk to be consistent with the

requirements for TBACT addressing chronic impacts.

Response: DEQ has changed the proposed rules regarding submittal and payment deadlines. In

response to comments, DEQ separated the submittal required for Cleaner Air Oregon (e.g., emissions

inventory, modeling protocol, risk assessment work plan, Air Monitoring Plan, Risk Assessment, and Risk

Reduction Plan) into separate submittals, each requiring DEQ approval before completing the next

submittal. This will provide owners or operators certainty in knowing that the toxic air contaminant

emissions they are using in the risk assessment are approved by DEQ. Because of these staggered

submittals, owners or operators will know what their potential acute risk is long before DEQ issues the

Toxic Air Contaminant Permit Addendum.

Acute risk reflects the potential for health effects to occur following very short-duration exposures (24-

hours) some of which, such as developmental effects, are irreversible. Therefore, there is a strong public

health interest in preventing such short-term exposures that could result in permanent health effects,

and DEQ is not changing the requirement for owners or operators to reduce acute risk within one to six

months of permit issuance.




Comment Category #393: TBACT Implementation - do not require annual

updates

Description: Annual TBACT updates should not be required or only required at permit renewal. The

periodic TBACT review is burdensome because it requires such broad results: Whatever or whenever an

owner/operator “learns” of a new technology. There is no clearinghouse of developing technologies.

The standard is simply unworkable because compliance cannot be assured. If not deleted, language that

limits the report to technology that has been required by another state air authority or USEPA and such

a technology that “likely” or “probably” could reduce toxic air emission. The term “could” is speculative

and too indefinite to provide a workable standard.

Response: The proposed rules state that the annual TBACT update is required for all significant TEUs for

which the most recent TBACT determination concluded that no toxic air contaminant emission limits or

additional control measure was required. Since these TEUs were not required to reduce risk, DEQ feels it

is important for owners or operators to perform annual reviews to see if any additional controls have

been developed that would reduce risk.

DEQ has changed the proposed rules for all significant TEUs that currently meet TBACT through toxic air

contaminant emission limits or control measures. Owners or operators of these TEUs must submit a

TBACT review to DEQ when notified by DEQ that DEQ has learned of new technologies, devices or

practices that could reduce toxic air contaminant emissions or improve on control measures. DEQ will


Item G 001461


have the responsibility to notify a facility for TBACT review rather than when the owner or operator

learns of new technologies, or when EPA performs an update of an applicable Risk and Technology

Review.




Comment Category #394: TBACT - Object to assessing cost-effectiveness on the

basis of criteria pollutants

Description: Commenter objects to the language in which the cost-effectiveness of a particular control

being contemplated for TBACT must be assessed on the basis of the criteria pollutants reduced by the

control under consideration. TBACT is defined as controls for toxics and TBACT is designed and intended

to address air toxics. TBACT is not and cannot be used to reduce criteria pollutants that are not toxics.

This is critical both from a policy point of view and a practicality point of view.

Response: Senate Bill 1541 adopted into law by the 2018 Legislature established that ". . . the

department must assess only the economic impacts and benefits associated with controlling toxic air

contaminants. "




Comment Category #395: TBACT Plan and Pollution Prevention Plan - how do

these plans interact?

Description: It appears that all sources with risk greater than or equal to the TBACT level (50/5) are

required to perform a Pollution Prevention Plan. It may well be that the Pollution Prevention Plans are a

precursor to a risk reduction plan which is part of the TBACT plan, but it is not clear how those plans

interact. The requirements for the Pollution Prevention Plans are exceedingly burdensome. Importantly,

the highly detailed information for the Pollution Prevention Plan will include trade secrets and otherwise

confidential information. It is important that DEQ have in place robust procedures for protecting such

information.


Item G 001462


Response: Pollution Prevention is required for sources whose risk is greater than or equal to the TBACT

Level before any additional risk reduction measures are included to further reduce risk. DEQ agrees with

the commenter that a Pollution Prevention Plan is a precursor to a Risk Reduction Plan and a TBACT

Plan. DEQ has changed the proposed rules to eliminate the TBACT Plan and just make the TBACT

requirement part of the Risk Reduction Plan, which is the overarching plan to reduce risk. Pollution

Prevention can be incorporated into the Risk Reduction Plan, if required.

The provision for protecting confidential business information is included in OAR 340-214-0130,

Information Exempt from Disclosure. OAR 340-245-0010, Applicability and Jurisdiction, lists other

divisions of air quality rules that apply to sources subject to Cleaner Air Oregon, division 245. Among this

list of other applicable divisions is division 214 Stationary Source Reporting Requirements, which

included Information Exempt from Disclosure. Sources that want to protect confidential business

information can do so by following the procedures in OAR 340-214-0130.




Comment Category #396: TBACT - presumptive TBACT does not require

reduction that is "same or similar degree"

Description: There is no authority for the department to require a NESHAP control toxic emissions to the

“same or similar degree.” SB 1541 plainly says, “are not controlled.” SB 1541, Section 3(4)(d)(B)ii. This

subsection greatly changes the language of the law and is impermissible. The word “control” must be

inserted in the rule in place of: “reduce” and the words “to the same or similar degrees as the NESHAP

reduces the emission it is intended to reduce”, must be deleted.

Response: DEQ changed the proposed rules in response to parts of this comment.



Comment Category #397: TBACT - require for all sources

Description: Require all industrial polluters to use TBACT filtering and capture devices for pollutants.

Response: SB 1541 requires that Cleaner Air Oregon cannot require existing facilities to reduce risk if

they are below 50 in a million or Hazard Index of 5, the TBACT Risk Action Level. A TBACT determination

is only required if a source exceeds the TBACT Risk Action Level and is required to install TBACT on all

significant Toxics Emissions Units because the source cannot comply with the TBACT Risk Action Level.


Item G 001463





Comment Category #398: TBACT - TBACT analysis process includes unvetted

approaches

Description: The rules develop new and stringent compliance approaches but do not include a clear

description of how these compliance methods will actually be applied - examples include process

modification analysis and multi-pollutant cost consideration under TBACT. Manufacturing processes

commonly have multiple components that are confidential business information, and in general require

highly specialized process knowledge, chemical or design capabilities that may not be common amongst

agency staff. Exposing the wide variety of Oregon industries to this process is overly prescriptive, not

likely to yield constructive results, and creates a business information and operations liability.In

addition, DEQ does not give an indication of where and how these methods have been tried and if they

have been tried, whether they have been successfully implemented. The uncertainty created by these

unvetted approaches creates uncertainty for businesses.

Response: The reference to "production process redesign or modification" in the proposed rules

represents one category of toxics pollution prevention options that may be identified during a

comprehensive pollution prevention assessment. The assessment process outlined in the proposed

rules, and the draft pollution prevention procedures accompanying the rules, are well established in

guidance documents produced since the passage of the federal Pollution Prevention Act of 1990.

Technical assistance materials developed by EPA and states (e.g., Massachusetts), referenced in the

pollution prevention procedures, provide detailed guidance on conducting toxics pollution prevention

assessments, which include an examination of process redesign or modification opportunities.

Oregon businesses required by the Toxics Use and Hazardous Waste Reduction Act (1989) to develop

reduction plans have used these types of assistance resources in their planning processes. The draft

rules do not require industrial process redesign or modifications; rather they require (in certain

instances) an evaluation of opportunities to reduce air toxic pollutants through such redesigns and

modifications. A robust pollution prevention assessment should include an examination of those types

of opportunities.

The Oregon New Source Review program has been successfully implemented since its establishment in

1981. Under this program, sources are required to evaluate emissions increases from construction

projects that are greater than the significant emission rate for multiple pollutants, defined by EPA, to

determine if they have to install Best Available Control Technology. For example, if a project increases

emissions in particulate matter and volatile organic compounds, a multi-pollutant cost consideration

must be done because the Best Available Control Technology for particulate matter would not reduce

volatile organic compounds.


Item G 001464


A similar approach would be used for Cleaner Air Oregon and Toxics Best Available Control Technology

because some toxic air contaminants are classified as particulate matter and some toxic air

contaminants are classified as volatile organic compounds. Because TBACT would be similar, if not

identical to BACT, there would be little uncertainty for sources.




Comment Category #399: TBACT - thorough inspections needed along with

periodic TBACT review

Description: Given the limitations overlaid on the CAO program by Senate Bill 1541, proper installment,

maintenance, and review of Toxics Best Available Control Technology (TBACT) are key to mitigating

toxics emissions. The periodic TBACT Reviews should include inspections by DEQ to verify the

information reported about implemented TBACT and to check the maintenance of TBACT measures to

ensure maximum pollution mitigation. Physical inspection visits by DEQ should be incorporated into fees

for TBACT reviews.

Response:

DEQ agrees with the commenter that inspections are a critical part of any permitting program. The

frequency of inspections varies with the complexity of the source ranging from once every two years to

once every ten years. Since Cleaner Air Oregon is a new program, DEQ may do more frequent

inspections for sources that pose higher potential risk.

Permit writers will prepare inspections reports that will be available on DEQ's website. The fees for

inspections are included in the annual base fee. See the category "TBACT Implementation - do not

require annual updates" for the response regarding periodic TBACT reviews.




Comment Category #400: TEU - Definition is unclear


Item G 001465


Description: The definition of "Toxics Emissions Unit" or "TEU" states that a TEU "does not necessarily

emit air toxics." That statement is entirely inconsistent with the first sentence in the definition of the

term TEU as "any part or activity of a source that emits or has the potential to emit any air toxics." DEQ

needs to provide an explanation of the phrase "does not necessarily emit air toxics" as used in this

proposed definition. The TEU list required in OAR 340-245-0040(3)(a)(A) should be limited to TEUs that

emit toxic air contaminants. Sources should not be required to identify “potential sources” in the TEU

list.

The proposed language on designation of TEUs should be revised. Proposed OAR 340-245- 0060(1)(d)

says that the list of TEUs “should include all potential processes and activities that emit toxic air

contaminants.” It is not clear what constitutes a “potential process or activity.” The use of the term

“potential” in this situation appears to sow confusion and we believe should be removed. We note that

this edit needs to be made to proposed OAR 340-245-0040(3)(a)(A) as well.

Response: DEQ has clarified that toxic emissions units are those that potentially emit toxic air

contaminants.

The word "potential" was meant to apply to emitting toxic air contaminants, not sources or processes or

activities.




Comment Category #401: TEU designation - do not require the same designation

as in operating permits

Description: The proposed requirement to designate TEUs for CAO the same as in the sources operating

permit is problematic. Guidance in the Title V program encourages consolidated emission units in

certain circumstances. For modeling of toxic air emissions, however, a different approach may well be

preferred by the department or sources. Solid science and good engineering practices should be the

guide and not permitting approaches designed for other programs.

it is not clear how emissions are to be evaluated when the toxic emissions units are connected to a

common exhaust or emissions control device.

Response: DEQ changed TEU designation in response to public comments received during the first

public notice period. Requiring TEUs to be designated the same as they are in operating permits will

eliminate confusion, especially since Cleaner Air Oregon permit conditions will be incorporated into

operating permits. The proposed rules allow owners or operator to request that DEQ approve a

different designation.


Item G 001466





Comment Category #402: Timelines - deadlines for DEQ response time should be

specified in rule

Description: In general, the CAO rules impose very tight, and potentially unachievable timelines on

businesses for information call ins, and implementation of controls while making clear that DEQ will

have virtually no time line for actions. When combined with the freezing of changes at facilities under

the multi-source area provisions, and the permit call-in provisions, facilities could be prohibited from

making process modifications, potentially for years, without recourse. Both sides of this issue create

huge uncertainties for business planning. DEQ must have deadlines by which the agency responds to

permits. Clear deadlines help both the public and industry understand the process so they can

participate. In addition, lack of clear deadlines might allow a delay in compliance.

Response:

The EQC adopts rules to regulate emissions from sources, not to regulate DEQ. DEQ agrees that

deadlines for DEQ reviews would be helpful for the public and industry. Since Cleaner Air Oregon is a

new program for DEQ, sources and the public, DEQ cannot estimate how much time will be needed to

review submittals. Implementation of a new program always takes time. SB 1541 provided certainty

about implementation of Cleaner Air Oregon for DEQ and sources by authorizing 11 new staff positions

and the associated fees. With adequate staffing, DEQ should be able to review submittals in a timely

manner.

The purpose of Cleaner Air Oregon is to prioritize and protect the health and well-being of all

Oregonians and reduce exposure to industrial and commercial toxic air contaminant emissions while

supporting an environment where businesses and communities can thrive. DEQ wants reductions in

toxic air contaminant emissions as soon as possible and will work expeditiously to make Cleaner Air

Oregon successful.




Comment Category #403: Title V Permit Shield should extend to Air Toxics

Permit Addendum


Item G 001467


Description: DEQ is proposing to amend the Title V Permit Shield rule to state that the shield does not

apply to requirements in an Air Toxics Permit Attachment. If Title V sources are subject to the Division

245 requirements and receive a permit, then those sources should be able to receive the benefits of the

permit shield. We see no rational policy reason for not affording the shield to the Division 245

requirements and nor do we see how denying the shield is compliant with ORS 468A.310(3)( e ). We

request that the proposed amendment to OAR 340-218-0110 either be deleted from the final rule. First,

to the extent the permit shield does not apply to CAO rules, then this additional language is

unnecessary. Second, and at a more concerning level, the language goes too far in that it may invalidate

or cause confusion related to conditions in a Title V permit that appear in the CAO attachment. Under

the department’s proposed rules, would a “shielded” requirement lose the lawful permit shield due to

its inclusion in the attachment? The permit shield is a key element of the Title V air emissions control

program.

Response: These proposed Cleaner Air Oregon rules are not implementing a federal mandate nor are

they required by any federal regulations. It is purely a state program and is therefore, not federally

enforceable. One objective of Cleaner Air Oregon is that it will apply consistently to all sources that are

subject to the program, regardless of the type of permit a source has (Title V or Air Contaminant

Discharge Permit).

Title V specifically makes Title V permits enforceable by citizen lawsuits. Thus, a source that is required

to have a Title V permit is subject to enforcement by both EPA and citizen lawsuits, whereas a source

that is required to have an Air Contaminant Discharge Permit is not subject to enforcement by EPA, and

is not subject to enforcement by citizen lawsuit. State law does not provide for citizen enforcement of

Air Contaminant Discharge Permits. The purpose of the TV permit shield is to protect a source from

enforcement by EPA or citizen lawsuit in the case where a source somehow violates a rule underlying an

incorrectly written TV permit condition, while complying with the (incorrect) permit condition.

Cleaner Air Oregon is structured to be enforced only by DEQ. Cleaner Air Oregon is not subject to

enforcement by EPA, nor is it subject to enforcement through citizen lawsuits. It is not necessary to

provide any protection from enforcement by EPA or citizen lawsuits, so there is no need for the permit

shield provision of Title V.

DEQ's intent is not to weaken any permit shield that may exist under Title V rules, but rather to clarify

that for purposes of the Title V permit shield, Cleaner Air Oregon requirements are distinct from Title V

requirements. If an applicable NESHAP for a source with a Title V permit is determined to be TBACT for

purposes of Cleaner Air Oregon, and this determination is stated in the Toxic Air Contaminant Permit

Addendum, a source would still maintain its Title V permit shield as long as it complied with the

NESHAPs.

DEQ will incorporate Cleaner Air Oregon permit conditions into operating permits, both Title V Permits

and Air Contaminant Discharge Permits and will not be attachments, as DEQ originally proposed. DEQ

will make very clear which permit conditions are not included under the Title V permit shield.



Item G 001468




Comment Category #404: TLAER - do not add TLAER requirements to program

nor apply it to reconstructed sources

Description: DEQ should not add TLAER requirements to the program nor apply it to reconstructed

sources. TBACT is adequate to ensure that proper controls are in place. As proposed, DEQ could force

TLAER upon an entire source that modifies or replaces only a few TEUs. We recognize that TLAER is not

considered achievable “if the cost of control is so great that a new source could not be built or operated

because it was rendered economically infeasible.” However, this provision does not offer any protection

for the source that is being reconstructed.

Response: DEQ has eliminated the Director Consultation concept. This was done in part in response to

SB 1541 that provided certainty by setting certain benchmarks and action thresholds, and as a result of

public comments. There was much concern about the uncertainty of how the consultation process

would work. In place of Director Consultation, DEQ created specific and transparent criteria that would

allow new facilities to exceed a cancer risk of 10 if they use TLAER, or the Toxics Lowest Achievable

Emissions Rate. This is lower than the previous hard cap of 50 and 3 on Director Consultation. DEQ made

these changes because of public comment and for consistency with other changes made to the RAL

table.

In many cases, the control device required by TBACT would be the same as that for TLAER. SB 1541 did

not specify control requirements for new or reconstructed sources, only for existing sources. In addition,

Rhode Island includes a TLAER provision in their toxic air contaminant rules. South Coast Air Quality

Management District requires new toxic air contaminant sources to have T-BACT but does not

specifically consider cost because they focus on the most stringent emissions limitation or control

technique that has been achieved in practice for the permit unit category or class of source.

The owner of an entirely new source can plan, engineer and design their process to accommodate

TLAER. CAO defines a reconstructed source as “a source where an individual project is constructed that,

once constructed, increases the hourly capacity of any changed equipment to emit, and where the fixed


required to construct a comparable new source.” The reconstructed source is modified so much that

parts of it are practically a new source; therefore, DEQ is requiring that all significant TEUs meet TLAER.

This is consistent with the approach for existing sources requiring TBACT for all significant TEUs if

potential risk is over the TBACT Level.





Item G 001469


Comment Category #405: TLAER - supports concept and should apply to other

sources

Description: Commenter supports TLAER for new facilities. Lowest Achievable Emissions Rate (LAER)

should be expanded to include other sources besides new sources over the RALs. DEQ’s goal should be

to set the most stringent standards in order to have CAO be as health protective as possible. Both the

EPA and California use LAER, and Oregon should do the same.

Response: Senate Bill 1541 did not address control requirements for new facilities but specified TBACT

requirements for existing facilities above 50 and 5. The proposed rules would require Toxics Lowest

Achievable Emission Rates (TLAER) for all new sources above the 10 in 1 million and hazard index of 1.

New sources are better positioned to install TLAER during construction rather than existing sources

retrofitting to install TLAER without the consideration of economic feasibility.




Comment Category #406: Toxic Air Contaminant Permit Addendums - give

sources more time to review draft

Description: We request at least 30 days for source review of the draft permit.

There are many requirements in this rule for which the department should have lawfully regulated

discretion to make reasonable adjustments. Highlighting DEQ’s right to use its discretion in one rule and

not including the right in other rules creates ambiguity and probable inconsistency. It should be deleted;

DEQ still has such discretion.

Response: In many cases, sources will not need more than 14 days to review and provide feedback to

DEQ regarding the draft Toxic Air Contaminant Permit Addendum. DEQ will allow sources additional

time to review the draft Cleaner Air Oregon permit for good cause shown by the owner or operator.




Comment Category #407: TRVs - already protective of sensitive populations


Item G 001470


Description: TRVs are already protective of sensitive populations, including children. No further change

is necessary. If changes were made, the rulemaking process should be extended.

Response: Members of the EQC requested more detailed information on precisely how the TRVs and

risk assessment process account for different aspects of children's vulnerability. They asked specific

questions about how children's faster breathing rates relative to body size may impact their exposures

and how that is factored into Cleaner Air Oregon risk assessments. The concern is that DEQ’s choice of

TRVs may not sufficiently protect children’s health.

In response to the EQC’s request, OHA and DEQ researched how children's susceptibility and children's

breathing rates are accounted for in risk assessments at the Environmental Protection Agency (EPA) and

in other states, and how the risk assessment process proposed in Cleaner Air Oregon could account for

children's susceptibility. DEQ and OHA concluded that the proposed CAO risk assessment process is a

good starting point for CAO that is consistent with many other state and federal programs. For more

details, see the response to the comment category “RBCs – should account for children’s higher

breathing rates.” As CAO is implemented, the agencies intend to continually evaluate the success of the

program in protecting children's health, and to revisit the question of children's breathing rates as new

science and policy tools emerge.




Comment Category #408: TRVs and RBCs - TRV and RBC changes require

rulemaking

Description: Changing TRV and RBC values in CAO tables is rulemaking and requires compliance with

required notice and comment procedures.

Response: DEQ agrees that changes to TRVs and RBCs will be done through rulemaking by the EQC,

which will necessarily require notice and comment procedures. DEQ streamlined the rules and did not

include this known requirement in the text of the rule.




Comment Category #409: TRVs - toxicity reference values should be consistent

between regulations

Description:


Item G 001471


Response: For ambient benchmark concentrations, DEQ's ATSAC decided to present the values to one

significant digit. However, for CAO, DEQ decided to present regulatory values to two significant digits.

Following standard approaches, rounding should occur at the final calculation step for TRVs and RBCs. In

determining a TRV based on an ATSAC recommendation, DEQ decided to use the number of significant

digits presented in the authoritative source of the TRV used by ATSAC, rather than use the ABC value

that ATSAC rounded to one significant digit. The Department considers this a consistent approach.




Comment Category #410: Typographic errors need correction

Description: There are numerous typographical errors in the rules that need correction.

Response: DEQ will correct the typographical errors identified in the rules.





Item G 001472

Attachment G Public Comment Categories and Responses · 2020-02-16 · 11/15/2018 ATTACHMENT G G-1...

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