Environmental activist groups recently petitioned the Oregon Environmental Quality Commission (the “EQC”) to enact far-reaching rules that would regulate air emissions from so-called indirect sources in cities and metropolitan districts with populations of 50,000 or more. The petition identifies an indirect source as any facility, building, structure, or installation that attracts mobile sources (vehicles), and includes construction sites, hospitals, development projects, office buildings, ports, warehouses, retail facilities, and schools. Construction and operating permits would be required for certain indirect sources.
Construction permits would be required for projects that exceed certain sizes (e.g., a permanent commercial, industrial, or residential structure of at least 10,000 square feet) or values (over $1 million and exceeding certain air pollutant emission thresholds for particulate matter ("PM"), nitrous oxides ("NOx") and greenhouse gases). A construction permit would limit average hourly and daily emissions from certain vehicles; if the limits could not be met, then the permit applicant must reduce construction emissions by certain percentages. An operating permit may also be required for a new and existing indirect source that meets certain emission thresholds due to mobile source activity associated with the indirect source, or that exceeds other criteria related to vehicle trips, aggregate engine power, or diesel and gas consumption used in any 24-hour period. The applicant must show that the average emissions from mobile sources associated with the source meet certain emission standards for PM, NOx, and greenhouse gases; if the emissions exceed those standards, the source must implement a mitigation plan to meet the required reductions.
While the Oregon Department of Environmental Quality ("DEQ") has rules on indirect sources already, those rules are much narrower than the petitioned rules and are focused on large projects that could cause a violation of a national air ambient quality standard ("NAAQS") or a SIP provision under the Clean Air Act; under those rules, DEQ has required very few indirect source projects in Oregon to mitigate emissions, because most projects have not exceeded the federal standards. The petitioned rules would be significantly broader in scope and would add significant costs and uncertainty to covered development projects and indirect sources.
This petition is highly controversial and will undoubtedly spur litigation. Indirect source rules implemented in California resulted in litigation that ended in the Ninth Circuit. The court found that the Clean Air Act did not preempt the state rules on indirect sources, but under different rules and facts from those at issue in the Oregon petition.
What You Can Do
The EQC will have an informational session and allow for public comments during their meeting this Friday, January 24 (8:30 a.m. to 3 p.m.), followed by a public comment period. The meeting will be held at the Hillsboro Civic Center, Main Auditorium located at 150 E. Main Street in Hillsboro.
We urge interested parties to attend and comment on the impacts of such a rule and to submit written comments during the public comment period. Please contact us with any questions or for help in drafting comments. Our attorneys have significant expertise in Clean Air Act issues and permitting and can help analyze the impacts of this proposal.