Cleaner Air Oregon: Recent Developments and Looking Forward

The draft Cleaner Air Oregon rule was proposed by the Oregon Department of Environmental Quality (DEQ) last fall; however, the fees to be imposed on industry to implement the program required legislative approval.  Although the House and Senate bills authorizing those fees did not pass during the 2018 Oregon legislative session, a new bipartisan bill was introduced and ultimately passed.  Senate Bill 1541, known as the “compromise bill,” not only authorizes fees for implementation of a Cleaner Air Oregon program, it also sets specific requirements for what must be included in the final rule.  The bill is expected to be signed into law by Governor Kate Brown in the coming days.  Several key components of SB 1541 are summarized below.   

Risk Action Levels (RALs)

Compared to the current draft of the Cleaner Air Oregon rule, there are no changes to the RALs for new or reconstructed sources.  For existing sources, the cancer RAL increases from 25 in one million to 50 in one million, and the non-cancer RAL increases from a hazard index of 1 to 5.  In certain cases where pollutants are expected to have developmental or other severe human health effects, the non-cancer RAL may be lowered to 3.  For existing sources, there is a sunset clause where the RALs will be rest in 2029; however, there is a “floor” for the cancer RAL of 25 in one million.  This means that in 2029 the cancer RAL can be reduced down from 50, but it cannot be lowered to less than 25.

Toxics Best Available Control Technology (TBACT)

If a source is subject to Maximum Achievable Control Technology (MACT) under a major source National Emission Standard for Hazardous Air Pollutants (NESHAP), then the source is considered to meet TBACT.  However, there are some caveats to this.  For example, the TBACT must result in a reduction to the regulated pollutants and there may not be other toxics emitted from the source that are not controlled.  If a source is not employing MACT under a NESHAP, the TBACT determination will be on a case-by-case basis.  SB 1541 also clarifies that when a source is completing a case-by-case TBACT determination, the cost effectiveness analysis must only include the economic impacts and benefits associated with the toxic pollutant that is being controlled (compared to including all pollutants being controlled, as presented in the current draft rule).  Note that any source that employs TBACT may be required to take further action if their calculated risk is still greater than four times the cancer RAL (200 in one million) or two times the non-cancer RAL (hazard index of 10). 

Pilot Program

Prior to implementing a Multi-Source Risk Area requirement under the rule, SB 1541 requires that a pilot program be completed.  The pilot program area is restricted to one area in a county with a population greater than 500,000 people and may not be greater than the size of a circle with a diameter of 2.5 miles.  Sources within the pilot program area may have restrictions on obtaining new or modified permits, including risk mitigation requirements.

Program Fees

SB 1541 authorizes approximately $2MM to DEQ for implementation of the program, including new positions at DEQ for permit writing, air monitoring and modeling, risk assessments, community assistance liaisons, and IT and management resources.  The bill also allows DEQ to collect fees from permit holders to continue to fund the program, including a one-time supplemental fee, base fees, and activity fees.  

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SLR International Corporation will continue to follow the rulemaking process and plans to hold additional workshops this summer.  Please stay tuned for dates and workshop details. For questions or direct assistance with the air toxics rulemaking and expected requirements, you can also contact Sarah Kronholm via email or call 503.723.4423.