Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 1 of 285

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and completing an application for an Air Toxics Permit Attachment such that the application is considered by DEQ to be withdrawn may be subject to enforcement for violations of the Cleaner Air Oregon rules, regardless of whether the owner or operator resubmits the application.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 An owner or operator whose application is deemed withdrawn due to delay should immediately be classified as a source that is operating without a required permit and be subject to agency enforcement and penalties.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

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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.

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

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

Comments linked to this category: 616

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.

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: 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.

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

Comments linked to this category: 300

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

Item G 001191 11/15/2018 ATTACHMENT G G-4 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 5 of 285 data in its risk assessment as a supplement of modeling, but the monitoring data would not substitute for modeling.

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: 629, 631

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.

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

Comments linked to this category: 851, 859

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.

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: 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.

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: 851, 859

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.

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: 594

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

Item G 001194 11/15/2018 ATTACHMENT G G-7 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 8 of 285 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.

Item G 001195 11/15/2018 ATTACHMENT G G-8 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 9 of 285 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

Item G 001196 11/15/2018 ATTACHMENT G G-9 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 10 of 285 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.

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

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.

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

Comments linked to this category: 848

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

Item G 001198 11/15/2018 ATTACHMENT G G-11 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 12 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 812, 815, 824, 825, 832, 18, 80, 138, 142, 162, 261, 297, 315, 461, 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

Item G 001199 11/15/2018 ATTACHMENT G G-12 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 13 of 285 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.

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

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

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.

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: 188, 266, 277, 279, 307, 344, 347, 354, 376, 377, 378, 450, 556, 594, 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.

Response Type: yes, no rule change needed

Comments linked to this category: 238, 355

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.

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: 887, 624

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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 11/15/2018 ATTACHMENT G G-15 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 16 of 285 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.

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: 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.

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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.

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: 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.

Response Type: yes, no rule change needed

Comments linked to this category: 624

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.

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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.

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: 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).

DEQ changed the proposed rules in response to this comment.

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

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

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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.

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

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

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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".

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

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

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

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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.

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: 631

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.

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: 300, 596, 696

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.

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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.

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: 502, 639, 916

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 22, 158, 195, 215, 217, 250, 259, 260, 262, 265, 300, 308, 411, 487, 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 22, 252, 259, 262, 297, 308, 506, 515, 564, 785, 697, 705, 714, 690, 793, 709, 703

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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.

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

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

Comments linked to this category: 84, 502, 594, 639

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 11/15/2018 ATTACHMENT G G-23 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 24 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 907, 657, 665

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.

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

Comments linked to this category: 342

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.

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

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

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 495

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.

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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.

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: 390, 623, 667

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.

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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.

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: 738, 739

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 11/15/2018 ATTACHMENT G G-27 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 28 of 285 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.

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

[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.

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: 856, 867, 137, 187, 314, 500, 610, 631, 644, 667, 746, 745, 739, 747

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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.

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: 611, 644

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 11/15/2018 ATTACHMENT G G-29 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 30 of 285 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.

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: 18

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.

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

Response Type: yes, no rule change needed

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.

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

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

Comments linked to this category: 151, 502, 639

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.

Response Type: yes, no rule change needed

Comments linked to this category: 847, 300, 497, 515, 607

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 11/15/2018 ATTACHMENT G G-31 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 32 of 285 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.

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

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

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 11/15/2018 ATTACHMENT G G-32 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 33 of 285 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.

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

Response Type: not applicable- this concept has been dropped in the revised rules

Comments linked to this category: 22, 888, 893, 115, 215, 242, 259, 280, 297, 300, 308, 309, 425, 491, 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

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- 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.

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

Response Type: not applicable- this concept has been dropped in the revised rules

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 11/15/2018 ATTACHMENT G G-34 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 35 of 285

- 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.

DEQ changed the proposed rules in response to this comment.

Response Type: not applicable- this concept has been dropped in the revised rules

Comments linked to this category: 9, 22, 29, 53, 115, 128, 138, 151, 206, 215, 217, 250, 261, 268, 271, 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 11/15/2018 ATTACHMENT G G-35 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 36 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 847

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

Comments linked to this category: 115, 120, 121, 124, 125, 126, 127, 129, 131, 135, 145, 153

Comment Category #49: Comment template - see comment #159

Description: Comments that contain text in common with comment #159

Response: See categories and responses associated with comment #159.

Response Type: category for tracking only, no agency response required

Comments linked to this category: 159, 160, 161, 164, 171, 173, 175, 176, 178, 179, 181, 185, 191, 192, 219, 220, 221, 223, 225, 236, 247, 254, 257, 334, 337, 340, 349

Comment Category #50: Comment template - see comment #168

Description: Comments that contain text in common with comment #168

Response: See categories and responses associated with comment #168.

Response Type: category for tracking only, no agency response required

Item G 001223 11/15/2018 ATTACHMENT G G-36 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 37 of 285

Comments linked to this category: 168, 169, 180, 182, 214, 328, 336, 339

Comment Category #51: Comment template - see comment #262

Description: Comments that contain text in common with comment #262

Response: See categories and responses associated with comment #262.

Response Type: category for tracking only, no agency response required

Comments linked to this category: 138, 262, 263, 267, 285, 287, 288, 289, 290, 291, 292, 293, 294, 295, 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,

Comment Category #52: Comment template - see comment #266

Description: Comments that contain text in common with comment #277

Response: See categories and responses associated with comment #266.

Response Type: category for tracking only, no agency response required

Comments linked to this category: 266, 283, 343, 346

Comment Category #53: Comment template - see comment #31

Description: Comments that contain text in common with comment #31

Response: See categories and responses associated with comment #31.

Response Type: category for tracking only, no agency response required

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

Comment Category #54: Comment template - see comment #510

Description: Comments that contain text in common with comment #510

Response: See categories and responses associated with comment #510.

Response Type: category for tracking only, no agency response required

Item G 001224 11/15/2018 ATTACHMENT G G-37 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 38 of 285

Comments linked to this category: 510, 512

Comment Category #55: Comment template -see comment #598

Description: Comments that contain text in common with comment #598

Response: See categories and responses associated with comment #598.

Response Type: category for tracking only, no agency response required

Comments linked to this category: 310, 311, 312, 313, 740, 734, 735, 733, 738, 732, 737, 736

Comment Category #56: Comment template - see comment #812

Description:

Response: See categories and responses associated with comment #812.

Response Type: category for tracking only, no agency response required

Comments linked to this category: 812, 813

Comment Category #57: Comment template - see comment #871

Description: Comments that contain text in common with comment #871

Response: See categories and responses associated with comment #871.

Response Type: category for tracking only, no agency response required

Comments linked to this category: 850, 857, 862, 868, 870, 871, 874, 877, 878, 881, 883, 885, 889, 894, 895, 896, 898, 900, 902, 904

Comment Category #58: Comment template - see comment #92

Description: Comments that contain text in common with comment #92

Response: See categories and responses associated with comment #92.

Response Type: category for tracking only, no agency response required

Comments linked to this category: 92, 94

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 435, 594, 631, 667

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 11/15/2018 ATTACHMENT G G-39 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 40 of 285 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.

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

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: 867

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.

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 824, 837, 21, 31, 910, 111, 193, 441, 452, 499, 511, 517, 524, 538, 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.

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

Item G 001228 11/15/2018 ATTACHMENT G G-41 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 42 of 285 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.

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.

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: 832, 491, 552

Comment Category #63: Community engagement - community should have input on agenda for meeting

Description: Community meeting agendas should be formed collaboratively with community stakeholders.

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.

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 926

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

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 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.

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

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

Comments linked to this category: 910, 115, 193, 215, 552, 661

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.

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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.

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: 812, 837, 839, 300, 488, 769

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 11/15/2018 ATTACHMENT G G-44 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 45 of 285 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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 824, 846, 240, 244, 300, 428, 485, 505, 552, 594, 616, 631

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.

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

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 926

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 11/15/2018 ATTACHMENT G G-46 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 47 of 285 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.

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: 815, 824, 825, 858, 859, 910, 924, 911

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.

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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: 867

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.

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: 594

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.

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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.

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: 856, 867, 880, 893, 908, 505, 916, 918, 927

Comment Category #72: Community engagement - general support

Description: DEQ needs meaningful, robust community engagement that incorporates best practices for protecting vulnerable populations.

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

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

Item G 001236 11/15/2018 ATTACHMENT G G-49 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 50 of 285

Response Type: yes, no rule change needed

Comments linked to this category: 913

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.

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

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

Comments linked to this category: 637

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.

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

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

Comments linked to this category: 538, 582, 604

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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.

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. DEQ will include local public health departments in all public notifications from facilities regarding both potential health risks and opportunities for community engagement.

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

Response Type: yes, no rule change needed

Comments linked to this category: 499, 637

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.

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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.

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

Comments linked to this category: 855, 585

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 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. 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".

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

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

Comments linked to this category: 867, 888, 916

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 824, 14, 31, 910, 93, 111, 115, 215, 275, 300, 309, 452, 499, 538, 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.

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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.

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: 594, 631

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.

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

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Response Type: yes, no rule change needed

Comments linked to this category: 552, 788

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.

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 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.

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

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Comments linked to this category: 259, 447, 552

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.

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 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 822, 538, 637

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.

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 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 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: 29

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.

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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.

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 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 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: 435, 594

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 11/15/2018 ATTACHMENT G G-58 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 59 of 285 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 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: 825

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.

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

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 31, 170, 197, 441, 452, 511, 524, 552, 582, 599, 661, 700, 768, 686, 802, 695

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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.

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: 159, 163, 166, 168, 188, 190, 210, 216, 266, 277, 279, 301, 302, 310, 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.

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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.

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: 9, 143, 147, 150, 197, 206, 207, 248, 249, 262, 268, 321, 406, 478, 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.

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: 22, 142, 217, 235, 259, 262, 268, 284, 297, 299, 300, 474, 506, 515, 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.

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

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

Comments linked to this category: 22, 259, 297, 300, 301, 515, 602

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 300

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 11/15/2018 ATTACHMENT G G-62 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 63 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 839, 85, 108, 132, 240, 259, 423, 428, 485, 516, 654, 769, 792, 771

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 822, 829, 259, 533, 566, 599, 727, 756

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 11/15/2018 ATTACHMENT G G-63 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 64 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 31, 62, 367, 551, 566

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.

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

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

Comments linked to this category: 824, 832, 843, 206, 296

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.

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: 435, 594, 629, 631, 667

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

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Oregon and these changes would be incorporated into existing permits during a permit renewal or modification.

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: 17, 74, 80, 113, 118, 132, 142, 162, 206, 211, 226, 240, 256, 265, 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.

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

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

Comments linked to this category: 280, 300, 308, 597, 613

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

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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.

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.

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.

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: 552

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.

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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.

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.

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 242, 250, 552

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.

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.

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.

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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.

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

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

Comments linked to this category: 242

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.

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.

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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.

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.

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

Comments linked to this category: 552

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 11/15/2018 ATTACHMENT G G-70 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 71 of 285 sanctions would be imposed by the court; thus, DEQ’s ability-to-pay process, using ABEL, INDIPAY and MUNIPAY would never be used.

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: 667

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.

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.

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.

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

Comments linked to this category: 250

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 11/15/2018 ATTACHMENT G G-71 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 72 of 285 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 11/15/2018 ATTACHMENT G G-72 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 73 of 285 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.

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

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

Comments linked to this category: 867, 871, 880, 884, 887, 888, 893, 903, 908, 301, 432, 500, 502, 594, 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.

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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.

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: 867

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.

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

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

Comments linked to this category: 552

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 11/15/2018 ATTACHMENT G G-74 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 75 of 285 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.

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 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 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: 552

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867

Comment Category #110: Definitions - define "economic harm"

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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.

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: 637

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 11/15/2018 ATTACHMENT G G-76 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 77 of 285 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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867

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.

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: 867, 888

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 11/15/2018 ATTACHMENT G G-77 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 78 of 285 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.

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.

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.

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: 552

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."

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

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

Comments linked to this category: 810, 851, 859, 867, 888

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.

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867

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.

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

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

Comments linked to this category: 851, 859, 867

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

Item G 001266 11/15/2018 ATTACHMENT G G-79 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 80 of 285 reasonably be anticipated to cause, adverse effects to human health and are listed in OAR 340-245-8020 Table 2.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 631

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 552

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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.

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

Comments linked to this category: 867

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.

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

Comments linked to this category: 867

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.

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: 818, 858, 147, 440, 760

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.

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: 833, 867, 880, 882, 137, 141, 159, 163, 166, 168, 177, 184, 188, 190, 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

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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.

DEQ will not make changes to the rule in response to this comment.

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

Comments linked to this category: 7, 831, 9, 22, 845, 90, 189, 259, 262, 268, 282, 321, 469, 513, 555, 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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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: 629

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;

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• 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.

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

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

Comments linked to this category: 867

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.

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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 rules in response to this comment.

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

Comments linked to this category: 629

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.

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: 888, 610

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.

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 915

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 11/15/2018 ATTACHMENT G G-87 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 88 of 285 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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 851, 859, 880, 888, 244, 535, 616, 627, 631

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 851, 859

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.

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: 867

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

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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

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 846, 858, 571, 755

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.

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

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Response Type: yes, no rule change needed

Comments linked to this category: 812, 815, 822, 824, 829, 9, 832, 837, 22, 132, 138, 158, 165, 170, 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 855

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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.

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

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

Comments linked to this category: 867, 888, 629, 667

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.

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

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Response Type: yes, no rule change needed

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 108, 519

Comment Category #138: Environmental Justice - DEQ has not met its obligations

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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.

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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 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.

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: 846, 250, 276, 491, 552, 571

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.

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

Item G 001283 11/15/2018 ATTACHMENT G G-96 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 97 of 285 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.

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: 217

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 812, 822, 824, 825, 835, 22, 846, 847, 31, 51, 197, 217, 242, 250, 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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867

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 11/15/2018 ATTACHMENT G G-98 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 99 of 285 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.

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

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

Comments linked to this category: 841

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 841, 888

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

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: 887, 892

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.

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 217

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

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(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.

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

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

Comments linked to this category: 502, 639

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.

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 841, 859, 867, 888

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.

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

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

Comments linked to this category: 867, 871, 884, 887, 888, 903, 908

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 11/15/2018 ATTACHMENT G G-103 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 104 of 285 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.

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

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

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.

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: 842, 851

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 11/15/2018 ATTACHMENT G G-105 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 106 of 285 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.

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867, 871, 880, 884, 888, 893, 907, 908, 927, 912, 928, 918

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.

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: 842, 851, 859, 867, 888

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.

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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.

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: 867

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.”

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867

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

Item G 001296 11/15/2018 ATTACHMENT G G-109 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 110 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 244, 639

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.

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

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

Comments linked to this category: 867

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.

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

Comments linked to this category: 244

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.

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

Response Type: yes, no rule change needed

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 11/15/2018 ATTACHMENT G G-111 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 112 of 285 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.

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

Comments linked to this category: 244, 415

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.

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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.

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

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

Comments linked to this category: 888, 631

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.

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: 300, 566, 792

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.

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 244

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.

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 841

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."

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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.

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: 908

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.

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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.

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: 888

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.

DEQ will not make changes to the rule in response to this comment.

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

Comments linked to this category: 321, 438, 759, 802

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 11/15/2018 ATTACHMENT G G-117 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 118 of 285 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

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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.

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: 25, 871, 888, 188, 432, 631, 639, 912

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.

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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.

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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 11/15/2018 ATTACHMENT G G-121 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 122 of 285 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.

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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.

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: 827, 25, 867, 888, 903, 228, 301, 432, 500, 594, 615, 616, 623, 626, 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.

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

Comments linked to this category: 215, 403, 407, 794

Comment Category #170: General opposition - miscellaneous comments

Description:

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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.

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: 137, 141, 159, 163, 168, 177, 184, 187, 190, 210, 212, 216, 228, 230, 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 2, 4, 814, 816, 817, 818, 819, 822, 828, 7, 834, 11, 835, 836, 14, 15, 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

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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.

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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.

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: 880, 888, 893, 908, 928, 927

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 11/15/2018 ATTACHMENT G G-126 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 127 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 409, 497, 594, 610, 626, 639, 667, 791, 793

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 11/15/2018 ATTACHMENT G G-127 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 128 of 285 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."

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: 301, 432

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 610, 623, 665

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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.

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 22, 26, 111, 128, 206, 224, 242, 244, 250, 262, 265, 488, 491, 499, 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 11/15/2018 ATTACHMENT G G-129 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 130 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 867, 499, 611, 615, 623, 921

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 11/15/2018 ATTACHMENT G G-130 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 131 of 285 emissions that DEQ learns about that were not captured in the initial screening, and efficient allocation of DEQ resources.

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: 162, 726, 725, 727, 730

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;

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● 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.

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: 610, 611, 615, 764

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.

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 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.

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 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.

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

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

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Comments linked to this category: 301, 409, 432, 446, 598, 627, 665, 673

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.

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

Response Type: not applicable- this concept has been dropped in the revised rules

Comments linked to this category: 242, 244, 502, 571

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 11/15/2018 ATTACHMENT G G-133 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 134 of 285 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.

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

Response Type: not applicable- this concept has been dropped in the revised rules

Comments linked to this category: 189

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.

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

Response Type: not applicable- this concept has been dropped in the revised rules

Comments linked to this category: 765

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 11/15/2018 ATTACHMENT G G-134 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 135 of 285 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 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.

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.

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

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(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.

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

Response Type: not applicable- this concept has been dropped in the revised rules

Comments linked to this category: 409, 499, 552, 626

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.

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: 162, 764

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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.

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, 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 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.

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

Response Type: not applicable- this concept has been dropped in the revised rules

Comments linked to this category: 1, 244, 499

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 11/15/2018 ATTACHMENT G G-137 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 138 of 285 including in the CAO program in 2019. The extensive work and expenses will be made even more burdensome if sources cannot plan.

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 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.

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.

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

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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.

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: 867, 888

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.

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

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

Comments linked to this category: 817, 825, 831, 9, 11, 12, 109, 149, 151, 183, 186, 193, 201, 206, 215, 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.

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: 667

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.

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 188, 447, 509

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.

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As a result, the cumulative risk from all TEUs is evaluated during the same 24-hr period under the same meteorological conditions.

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

Response Type: yes, no rule change needed

Comments linked to this category: 906, 665

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.

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: 906, 907, 188, 348, 665, 742, 733, 772, 752

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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.

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: 631

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 11/15/2018 ATTACHMENT G G-143 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 144 of 285 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.

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: 851, 859

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 509, 803

Comment Category #196: Modeling - supports modeling as a means for estimating emissions

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 586, 791

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 315, 689, 770

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:

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 616

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.

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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.

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

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

Comments linked to this category: 841, 238, 419, 435, 500, 502, 594, 631, 647, 667

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.

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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.

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: 217, 654

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 11/15/2018 ATTACHMENT G G-148 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 149 of 285

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.

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: 808, 821, 823, 272, 805

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.

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

Comments linked to this category: 319

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 11/15/2018 ATTACHMENT G G-149 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 150 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 824, 837

Comment Category #204: Permit denial - DEQ may deny a permit without explicitly provid•ing 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.

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: 667

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 11/15/2018 ATTACHMENT G G-150 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 151 of 285

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

Response Type: yes, no rule change needed

Comments linked to this category: 921

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 913

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 11/15/2018 ATTACHMENT G G-151 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 152 of 285

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 613

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.

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

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

Comments linked to this category: 867

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 11/15/2018 ATTACHMENT G G-152 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 153 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 667

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.

Response Type: yes, no rule change needed

Comments linked to this category: 817, 825, 259, 308, 551

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 244

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.

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: 9, 201, 224, 240

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.

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 183, 186, 552

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 839, 151, 240, 552

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.

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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.

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

.

Response Type: yes, no rule change needed

Comments linked to this category: 839

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.

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

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

Comments linked to this category: 259

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.

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: 838, 74

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 11/15/2018 ATTACHMENT G G-157 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 158 of 285

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.

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: 629

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 812, 837, 217

Comment Category #220: Public Hearing Testimony - oral comments from Coos Bay public hearing 11/16/2017

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Description: Transcribed oral testimony from the Coos Bay public hearing on 11/16/2017

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 937, 933, 935, 936, 934

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:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 762, 760, 756, 757, 763, 758, 759, 761

Comment Category #222: Public Hearing Testimony - oral comments from Eugene public hearing 12/7/2017

Description: Transcribed oral testimony from the Eugene public hearing

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 755, 735, 736, 738, 753, 737, 740, 734, 754, 752, 746, 750, 749, 745, 748, 744, 739, 733, 741, 747, 742, 732, 743, 751

Comment Category #223: Public Hearing Testimony - oral comments from Eugene public hearing 8/1/2018

Description: Transcribed oral testimony from the Eugene public hearing on 8/1/2018

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 915, 917, 914, 916, 923, 919, 920, 921, 918, 922

Comment Category #224: Public Hearing Testimony - oral comments from Medford public hearing 11/15/2017

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Description: Transcribed oral testimony from the Medford public hearing

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 310, 311, 312, 313, 314

Comment Category #225: Public Hearing Testimony - oral comments from Pendleton public hearing 11/28/2017

Description: Transcribed oral testimony from the Pendleton public hearing

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 764

Comment Category #226: Public Hearing Testimony - oral comments from Portland public hearing 7/12/2018

Description: Transcribed oral testimony from the Portland public hearing on 7/12/2018

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 929, 928, 932, 925, 931, 930, 926, 927, 924

Comment Category #227: Public Hearing Testimony - oral comments from Portland public hearing at Convention Center 12/2/2017

Description: Transcribed oral testimony from the Portland public hearing at the Convention Center

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 784, 793, 797, 792, 774, 775, 776, 779, 780, 782, 783, 785, 786, 787, 788, 789, 790, 794, 795, 796, 778, 777, 781, 791

Comment Category #228: Public Hearing Testimony - oral comments from Portland public hearing at PCC 11/29/2017

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Description: Transcribed oral testimony from the Portland public hearing at PCC

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 798, 805, 801, 802, 799, 803, 804, 806, 807, 800

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:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 766, 768, 773, 771, 772, 767, 765, 769, 770

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:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 728, 726, 725, 729, 727, 731, 730

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,

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DEQ will schedule a public hearing when the notice is sent out without waiting for a request for a hearing.

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: 300

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.

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

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

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Comments linked to this category: 215, 259, 552

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 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. 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.

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: 224

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.

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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: 213, 389, 798

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 11/15/2018 ATTACHMENT G G-164 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 165 of 285 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

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: 812, 31, 867, 910, 94, 104, 111, 117, 128, 149, 155, 163, 251, 252, 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.

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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.

Response Type: yes, no rule change needed

Comments linked to this category: 242, 499, 566, 657, 703, 911

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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.

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: 818, 843, 108, 284, 286, 498, 506, 513, 551, 663, 789, 806, 728, 678, 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.

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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.

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: 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.

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

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

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Comments linked to this category: 910, 607

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.

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: 259, 580, 764, 677

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.

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 921

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 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." The current proposed long-term goal is now consistent with the current Risk Action Levels for existing sources.

DEQ changed the proposed rules in response to this comment.

Response Type: yes, no rule change needed

Comments linked to this category: 764

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.

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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.

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: 303

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.

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: 7, 31, 36, 74, 88, 108, 113, 117, 118, 128, 147, 154, 162, 197, 199, 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

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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.

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: 13, 867, 880, 79, 903, 906, 908, 137, 141, 158, 190, 210, 211, 213, 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.

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

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

Comments linked to this category: 818, 6, 828, 829, 7, 831, 832, 835, 836, 839, 16, 19, 20, 845, 847, 31, 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 825, 828, 831, 832, 835, 837, 845, 846, 847, 858, 149, 200, 240, 561, 917, 794, 919, 921, 783, 929, 913

Comment Category #248: Purpose - protect public health and strengthen rules

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 812, 818, 822, 828, 831, 11, 834, 12, 836, 837, 838, 839, 843, 22, 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

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 827, 833, 29, 867, 880, 213, 216, 260, 268, 342, 344, 347, 352, 424, 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.

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: 138, 359, 413, 474, 660, 693, 768, 677, 755

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 11/15/2018 ATTACHMENT G G-175 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 176 of 285 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.

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: 134, 370, 396, 420, 430, 496, 510, 530, 569, 577, 581, 608, 638, 664, 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.

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: 405, 411, 417, 471, 479, 767

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.

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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.

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: 362

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 459

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.

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: 470

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

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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.

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: 3, 5, 133, 224, 327, 407, 411, 412, 416, 805

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 6, 12, 206, 235, 242, 259, 260, 262, 280, 281, 297, 300, 303, 308, 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

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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.

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: 812, 824, 825, 828, 831, 9, 12, 13, 837, 22, 846, 858, 886, 890, 107, 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.

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Response: Senate Bill 1541, adopted into law by the 2018 Legislature, established public health 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.

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: 867, 880, 159, 301, 342, 432, 500, 505, 594, 598, 611, 615, 616, 626, 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),

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• 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).

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: 928, 927

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 11/15/2018 ATTACHMENT G G-181 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 182 of 285 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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 871, 880, 884, 888, 908, 912

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 11/15/2018 ATTACHMENT G G-182 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 183 of 285 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.

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

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

Comments linked to this category: 491, 552, 637, 686

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.

Response: Senate Bill 1541, adopted into law by the 2018 Legislature, established public health 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. SB 1541 sets the RALs for existing sources at 50/5 and for new sources at 10/1.

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

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

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Comments linked to this category: 21, 111, 115, 117, 128, 162, 170, 193, 206, 215, 252, 259, 261, 270, 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.

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: 908

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.

Response: 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 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.

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

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

Comments linked to this category: 7, 9, 11, 13, 16, 21, 117, 122, 128, 193, 206, 224, 242, 244, 250, 259, 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.

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: 825, 913

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.

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

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

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Comments linked to this category: 497

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

Response: Senate Bill 1541, adopted into law by the 2018 Legislature, established public health 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. SB 1541 sets the RALs for existing sources at 50/5 and for new sources at 10/1.

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

Response Type: yes, no rule change needed

Comments linked to this category: 935, 934

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."

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: 572, 600, 631

Comment Category #270: RBCs - 215 air toxics may not be enough

Description: RBCs: 215 chemicals may not be enough

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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).

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: 315

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 11/15/2018 ATTACHMENT G G-187 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 188 of 285 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.

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: 657

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.

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: 22, 847, 297, 315, 509, 515, 552, 602, 791

Item G 001375 11/15/2018 ATTACHMENT G G-188 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 189 of 285

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.

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: 917, 921

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.

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DEQ will not revised the rules in response to this comment.

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

Comments linked to this category: 616

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 most current and protective science available."

Item G 001377 11/15/2018 ATTACHMENT G G-190 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 191 of 285

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: 888, 634

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 11/15/2018 ATTACHMENT G G-191 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 192 of 285 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.

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: 867, 616

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 11/15/2018 ATTACHMENT G G-192 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 193 of 285 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."

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: 888, 600, 631, 634

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 11/15/2018 ATTACHMENT G G-193 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 194 of 285 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."

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: 855, 585, 631, 634, 652

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.

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: 855, 342, 585, 611, 616, 644

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.

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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).

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

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

Comments linked to this category: 435, 611

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 11/15/2018 ATTACHMENT G G-195 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 196 of 285 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.

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

Comments linked to this category: 855, 585

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 most current and protective science available."

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: 585

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.

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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."

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

Response Type: yes, no rule change needed

Comments linked to this category: 539

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 11/15/2018 ATTACHMENT G G-197 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 198 of 285 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 11/15/2018 ATTACHMENT G G-198 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 199 of 285 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."

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: 888, 907, 616, 631, 634

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 11/15/2018 ATTACHMENT G G-199 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 200 of 285 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.

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: 855, 585, 616

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 11/15/2018 ATTACHMENT G G-200 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 201 of 285 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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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

Response Type: yes, no rule change needed

Comments linked to this category: 847, 613

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,

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• 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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 629, 631, 640

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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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: 208, 329, 330, 331, 332, 600, 631

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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.

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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: 888, 906, 657, 665

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 most current and protective science available."

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: 888, 631, 634, 652

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.

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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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

(see p140 http://www.euro.who.int/__data/assets/pdf_file/0009/128169/e94535.pdf)

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: 855, 869, 585, 600, 610, 631

Comment Category #292: RBCs - further review of RBCs and TRVs

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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 frequency of 5 days/week for 50 weeks, or 250 days/year (instead of 260 days/year) for workers, and 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.

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: 855, 585, 918

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.

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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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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: 906, 665

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.

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

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

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Comments linked to this category: 631, 634

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 most current and protective science available."

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: 855, 585, 634

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 11/15/2018 ATTACHMENT G G-208 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 209 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 869, 572, 600

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 11/15/2018 ATTACHMENT G G-210 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 211 of 285 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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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: 833, 888, 906, 435, 462, 634, 665

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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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: 888, 462, 634

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 462

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 11/15/2018 ATTACHMENT G G-212 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 213 of 285 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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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: 600

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.

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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.

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: 855, 888, 585, 616, 631, 634

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 11/15/2018 ATTACHMENT G G-214 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 215 of 285 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 11/15/2018 ATTACHMENT G G-215 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 216 of 285 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).

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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: 833, 864, 888, 435, 494, 539, 631, 634, 652

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.

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: 864, 494, 631

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.

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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.

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: 616

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.”

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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 11/15/2018 ATTACHMENT G G-218 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 219 of 285 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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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.

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: 855, 585

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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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

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

Comments linked to this category: 888, 631, 634

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.

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 930

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 11/15/2018 ATTACHMENT G G-221 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 222 of 285 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."

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

Response Type: yes, no rule change needed

Comments linked to this category: 616, 631, 634

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.

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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.

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: 888, 188, 279, 301, 307, 432, 500, 505, 594, 610, 611, 615, 623, 624, 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 11/15/2018 ATTACHMENT G G-223 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 224 of 285 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."

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

Comments linked to this category: 436, 631

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 138, 297, 515

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 22, 138, 259, 300, 308, 515, 600, 651

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

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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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

DEQ will not make changes to the rule in response to this comment.

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

Comments linked to this category: 640

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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 frequency of 5 days/week for 50 weeks, or 250 days/year (instead of 260 days/year) for workers, and 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.

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

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

Comments linked to this category: 640

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.

Also, see response to comment categories "RBCs - TRV hierarchy should be changed" and "RBCs - use most current and protective science available."

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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: 849, 852, 854, 600, 631

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.

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: 665

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

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(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."

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

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

Comments linked to this category: 812, 824, 832, 837, 858, 887, 888, 893, 908, 552, 615, 626, 631, 925, 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.

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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 Recommended Procedures for Conducting Toxic Air Contaminant Health Risk Assessments.

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

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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.

Also, see response to comment category "RBCs - use most current and protective science available."

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

Response Type: yes, no rule change needed

Comments linked to this category: 22, 847, 864, 869, 871, 880, 884, 887, 888, 908, 436, 462, 515, 539, 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.

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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 Recommended Procedures for Conducting Toxic Air Contaminant Health Risk Assessments.

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.

Also, see response to comment category "RBCs - use most current and protective science available."

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

Response Type: yes, no rule change needed

Comments linked to this category: 812, 825, 837, 22, 846, 858, 890, 910, 107, 265, 402, 418, 513, 535, 615, 626, 645, 807, 756, 761, 911

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 244

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."

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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.

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

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

Comments linked to this category: 629

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 capital cost of new components exceeds 50 percent of the fixed capital cost that would have been 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.

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

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

Comments linked to this category: 631, 665

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.

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: 809

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 11/15/2018 ATTACHMENT G G-234 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 235 of 285 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.

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: 855, 585

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)].

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: 918

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.

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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.

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: 867, 84, 279, 301, 307, 432, 500, 505, 594, 598, 610, 611, 615, 623, 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.

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: 907, 594

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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.

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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.

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

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

Comments linked to this category: 841

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.

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DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 841

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 594, 629

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 11/15/2018 ATTACHMENT G G-239 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 240 of 285 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.

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

Comments linked to this category: 851, 859

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 841

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.

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 629, 918

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:

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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)."

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: 552

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.

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: 300, 645

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 242

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

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 847

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.

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: 240, 643

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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.

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: 502, 639

Comment Category #340: Risk Assessment - supports assessing cumulative risk across multiple chemicals emitted by a facility

Description: Commenter support approach to cumulative risk

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

Response Type: yes, no rule change needed

Comments linked to this category: 300, 315, 682, 726

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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.

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: 906, 665

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 11/15/2018 ATTACHMENT G G-246 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 247 of 285 that are not adjacent to an industrial facility will need to be evaluated for potential impacts from emissions.

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: 906, 665

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 629

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.

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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.

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: 867

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.

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: 665, 799

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.

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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.

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

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

Comments linked to this category: 552, 594, 667

Comment Category #347: Risk Reduction Plan or TBACT Plan Requirements - 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 11/15/2018 ATTACHMENT G G-249 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 250 of 285 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.

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 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.

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

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

Comments linked to this category: 631, 728

Comment Category #348: Risk Reduction Plan or TBACT Plan Requirements - 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 11/15/2018 ATTACHMENT G G-250 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 251 of 285

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.

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: 825, 846, 858, 910, 552, 926, 913

Comment Category #349: Risk Reduction Plan or TBACT Plan Requirements - 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. . . .”

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

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.

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

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

Item G 001438 11/15/2018 ATTACHMENT G G-251 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 252 of 285

Comments linked to this category: 552, 631

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.

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: 867

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 11/15/2018 ATTACHMENT G G-252 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 253 of 285

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: 867

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."

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867

Comment Category #354: Rule Language - do not use permissive language

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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.

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: 812, 552

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.

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: 111, 215, 509

Item G 001441 11/15/2018 ATTACHMENT G G-254 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 255 of 285

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.

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: 903, 626

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.

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

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

Comments linked to this category: 888

Item G 001442 11/15/2018 ATTACHMENT G G-255 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 256 of 285

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.

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: 867, 880, 884, 594, 927, 667

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 11/15/2018 ATTACHMENT G G-256 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 257 of 285

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.

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: 888, 631

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 667

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 11/15/2018 ATTACHMENT G G-257 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 258 of 285 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 11/15/2018 ATTACHMENT G G-258 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 259 of 285 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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 856, 867, 190, 210, 279, 301, 302, 307, 333, 342, 355, 432, 435, 495, 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 11/15/2018 ATTACHMENT G G-259 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 260 of 285 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.

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: 616

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.

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: 855

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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."

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: 855

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.

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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.

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

Comments linked to this category: 855, 867, 871, 887, 888, 908, 912

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.

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: 162

Comment Category #367: Submittal deadlines - allow more time

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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.

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

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

Comments linked to this category: 842, 851, 859, 867, 871, 880, 884, 887, 888, 908, 244, 505, 594, 610, 624, 631, 665, 912

Comment Category #368: Submittals - do not require modeling if source test data is submitted

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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.

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: 867

Comment Category #369: Support 12/22/2017 City of Portland comments

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 242, 244

Comment Category #370: Support American Forest & Paper Association comments

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 850, 610

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Comment Category #371: Support Beyond Toxics comments

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 820, 825

Comment Category #372: Support Clean Corvallis Air comments

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 20, 321

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:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 112, 571, 613, 661, 696

Comment Category #374: Support Eastside Portland Air Coalition comments (comment #22)

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 839, 22, 53, 83, 118, 315, 506, 607, 621

Item G 001452 11/15/2018 ATTACHMENT G G-265 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 266 of 285

Comment Category #375: Support League of Women Voters comments

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 308

Comment Category #376: Support Multnomah County comments

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 661

Comment Category #377: Support NCASI comments

Description: Support National Council for Air and Stream Improvement, Inc. comments

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 850, 610, 616, 623

Comment Category #378: Support Northwest Pulp & Paper Association comments

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 850, 903, 610, 623

Comment Category #379: Support Oregon Business and Industry Comments

Description:

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Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 833, 880, 435

Comment Category #380: Support Oregon Forest and Industry Council (OFIC) comments

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 435, 610, 623

Comment Category #381: Support Oregonians for Fair Air Regulations

Description:

Response:

Response Type: category for tracking only, no agency response required

Comments linked to this category: 827, 850, 857, 862, 868, 870, 877, 878, 881, 882, 883, 884, 885, 889, 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.

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: 859

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 915

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.

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: 851, 859

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.”

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

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

Comments linked to this category: 867

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 855, 300, 505, 585, 598, 610, 615, 616, 623, 624, 626, 631, 665, 667

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

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 629

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 11/15/2018 ATTACHMENT G G-270 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 271 of 285 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.

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: 825

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."

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: 812, 815, 824, 837, 925, 924

Comment Category #390: TBACT - do not require TBACT on all significant TEUs

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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.

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

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

Comments linked to this category: 908, 435, 594, 667

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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.

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

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

Comments linked to this category: 884, 888, 893, 908, 912, 918

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.

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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.

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: 851, 859, 871, 888, 893, 908

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 11/15/2018 ATTACHMENT G G-274 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 275 of 285 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.

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

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

Comments linked to this category: 867, 888, 435, 594, 631, 667

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. "

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 594, 616, 624, 631, 667

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.

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 867

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.

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

Comments linked to this category: 867, 888

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 839, 921

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.

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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.

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: 390, 667

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 915, 911

Comment Category #400: TEU - Definition is unclear

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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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 811, 888, 631

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.

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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: 867, 629

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.

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: 812, 815, 824, 832, 837, 409, 505, 924, 925, 667, 770, 922

Comment Category #403: Title V Permit Shield should extend to Air Toxics Permit Addendum

Item G 001467 11/15/2018 ATTACHMENT G G-280 Attachment G: Public comment categories and agency responses Nov. 15-16, 2018, EQC meeting Page 281 of 285

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.

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

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

Comments linked to this category: 867, 887, 888, 610, 616, 624, 631

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 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 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.

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: 856, 880, 888, 908

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 812, 815, 832, 837, 910, 925, 924

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.

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

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

Comments linked to this category: 867

Comment Category #407: TRVs - already protective of sensitive populations

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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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 855, 867

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.

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

Response Type: yes, no rule change needed

Comments linked to this category: 867

Comment Category #409: TRVs - toxicity reference values should be consistent between regulations

Description:

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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.

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: 856

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.

DEQ changed the proposed rules in response to this comment.

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

Comments linked to this category: 499, 502, 552

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