Administrative Advocacy

Neighbors for Clean Air provides oversight of the actions of the Oregon Department of Environmental Quality (DEQ) and the Environmental Quality Commission (EQC). DEQ issues permits for sources of air pollution and enforces the terms of those permits. The EQC has authority to make changes to the regulations which effect the required content of those permits. NCA reviews both DEQ’s proposed permits and any EQC rule changes.

Currently, Oregon’s air quality regulatory system is undergoing a major reform process called Cleaner Air Oregon. You can find more information about the process and how you can participate here.

The Permitting Process

NCA regularly reviews permits proposed by DEQ. For most types of permits, DEQ is required to issue a proposed permit and provide a public comment period. NCA staff review these permits to ensure that DEQ has included all applicable requirements, that any changes to the permit or the facility comport with the Clean Air Act, and that the permit is internally consistent (cross references can get broken, making the permit difficult to understand or enforce). Any problems found are submitted as a public comment to DEQ for them to review before issuing a final permit. For instance, a public comment letter submitted by NCA (and a subsequent Notice of Intent to Sue) alerted DEQ to the fact that it had incorrectly permitted the D1X expansion at Intel in Hillsboro.

However, NCA’s work often revolves around community education. The existing regulations, both state and federal, determine the content of air permits. Generally, a requirement that is not included in an existing regulation does not need to be included in a permit. For instance, in Northwest Portland many neighbors argued that ESCO should install a leak detection system on their baghouses so that they could take corrective action quicker in the event that the control device failed. However, since existing regulations did not require a source like ESCO to install a leak detection system, DEQ could not unilaterally require it through a permit condition. However, through a Good Neighbor Agreement, ESCO agreed to install a leak detection system and ask DEQ to have the operation of that system be a condition of their permit. While over simplified, this example does point to the limits of the permitting process and where a collaborative approach is helpful.

However, there are some provisions that provide DEQ a bit more leeway. For instance, under its nuisance authority, DEQ can create a Best Work Practices Agreement that contains conditions not otherwise required by regulations. Similarly, under the Air Toxics Program, DEQ theoretically could create new requirements for sources in a specific industry, or a specific source, or even covering a geographic area. The last is the only one that DEQ has thus far attempted under the auspices of the Portland Air Toxics Solution project. Unfortunately that project resulted in no concrete recommendations to the EQC for rulemaking.

What Is A Title V Permit?

Perhaps the most well know type of air permit is a Title V permit. So what is a Title V permit and why is it so well known?

Title V permits are required by Title V of the Clean Air Act. This section was adopted in 1990 and applies to “major” sources. Major sources are sources that either a) emit or has the potential to emit more than 100 tons per year of a single pollutant or b) are classified as major sources under the National Emissions Standards for Hazardous Air Pollutants (NESHAP) Program (Section 112 of the Clean Air Act). To be major under Section 112, a source must either emit or have the potential to emit more than 10 tons of any one hazardous air pollutant or more than 25 tons of total hazardous air pollutants.

So what do Title V permits require? Aside from procedural requirements (and procedural rights for citizens), Title V does not actually add substantive requirements. Title V was intended to roll up all existing requirements that were found in regulations and any construction or operation permits that a source has received. Prior to Title V, environmentalists, regulators, and even the source itself would have to seek out multiple sources to find all the requirements that the source was subject to. Title V merely condensed this.

Note, however, that some states (including Oregon) have combined their construction permit program with Title V for major sources. So if a modification triggers the need for a construction permit, DEQ can issue a Title V modification for an existing major source that fulfills the requirement to get a construction permit (making it a substantive change). This type of variation is part of what makes the Clean Air Act so hard to generalize about; there is almost always an exception to the general rule.