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MINUTESAIR QUALITY COUNCIL

October 8, 2003Department of Environmental QualityMultipurpose Room 707 N. Robinson

Oklahoma City OklahomaAPPROVED January 14, 2004

Notice of Public Meeting The Air Quality Council convened for its regular meeting at 9:00 a.m. October 8, 2003, in the Multipurpose Room of the Department of Environmental Quality, 707 North Robinson, Oklahoma City, Oklahoma. Notice of the meeting was forwarded to the Office of the Secretary of State giving the date, time, and place of the meeting on December 5, 2002 and amended on June 18, 2003. At least twenty-four hours prior to the meeting, agendas were posted on the entrance doors at the DEQ Central Office in Oklahoma City.

As protocol officer, Ms. Beverly Smith convened the hearings by the Air Quality Council in compliance with the Oklahoma Administrative Procedures Act and Title 40 CFR Part 51, and Title 27A, Oklahoma Statutes, Sections 2-5-201 and 2-5-101 - 2-5-118. She entered the Agenda and the Oklahoma Register Notice into the record. Ms. Smith announced that the court reporter was not available for the meeting but would be providing transcripts from recorded tape. She added that forms were at the sign-in table for anyone wishing to comment on any of the rules. Ms. Sharon Myers called the meeting to order. Roll was called and a quorum confirmed.

MEMBERS PRESENTDavid BraneckyBill BreischGary KilpatrickBob Lynch Gary MartinSharon MyersSandra RoseRick TreemanJoel Wilson

MEMBERS ABSENT

OTHERS PRESENT Sign-in sheet is attached as an official part of these Minutes

DEQ STAFF PRESENTEddie TerrillBeverly SmithScott ThomasPam DizikesKendall CodyJoyce SheedyMax PriceCheryl BradleyMichelle MartinezLisa DonovanPat SullivanLeon AshfordDawson LasseterGary KurtzMyrna Bruce

Approval of Minutes Ms. Myers called for approval of the July 16, 2003 Minutes. Hearing no discussion, she called for a motion to approve the Minutes as presented. Mr. Branecky made the motion with Mr. Treeman making the second.

Roll call.Rick Treeman YesSandra Rose YesBill Breisch YesGary Kilpatrick YesDavid Branecky Yes

Bob Lynch YesJoel Wilson YesGary Martin YesSharon Myers YesMotion carried.

Schedule of Meetings Calendar Year 2003 Mr. Terrill advised that the dates proposed were selected following the schedule set by the Environmental Quality Board for its meetings. Mr. Terrill stated that he preferred that Council not change the dates, but that locations could be changed. Mr. Wilson made motion to accept the dates and locations as proposed but move the October meeting to Broken Bow. Ms. Rose made the second. The 2004 dates approved were: January 14 in Oklahoma City; April 14 in Tulsa; July 21 in Oklahoma City; and October 20 in Broken Bow.



Ms. Smith convened the hearings and called upon Dr. Joyce Sheedy for the first presentation.

OAC 252:100-5 Registration, Emissions Inventory and Annual Operating Fees OAC 252:100-7 Permits for Minor Facilities

Dr. Sheedy advised that the proposal would establish a new permit exempt facility category. She advised that the Council heard this rulemaking on April 16, 2003 and July 16, 2003 and that workgroups met on May 23, July 8, July 29 and August 19. Dr. Sheedy detailed the concerns expressed during those meetings. Dr. Sheedy entered into record comments from EPA Region 6 and from OIPA that had been received too late to provide within the Agenda packet. Dr. Sheedy and Mr. Terrill fielded questions and comments from the Council. Ms. Myers reiterated that the staff’s recommendation was to continue this hearing to the next meeting. Mr. Branecky made the motion to continue with Mr. Kilpatrick making that second.



OAC 252:100-13 Open Burning

Staff presentation was made by Ms. Lisa Donovan. She pointed out changes recommended to clarify the scope of the conditions for open burning, and housekeeping measures and corrections made while the rule is open. Ms. Donovan detailed the changes proposed and, along with Mr. Terrill, answered questions and responded to comments. Ms. Myers called for motion to continue the hearing at staff’s recommendation. Mr. Martin made the motion. Mr. Wilson made the second.



OAC 252:100-41 Control of Emission of Hazardous Air Pollutants and Toxic Air Contaminants

Mr. Max Price advised that staff recommended updating the incorporations by reference to include new and amended NESHAP standards contained in 40 CFR Part 61 and 63. He listed the standards proposed for incorporation. Hearing no discussion, Ms. Myers called for motion to approve as presented and forward to the Environmental Quality Board for permanent adoption. Mr. Wilson made the motion and the second was by Mr. Kilpatrick.



Appendix E Primary Ambient Air Quality Standard Appendix F Secondary Ambient Air Quality Standards

Mr. Leon Ashford presented staff’s recommendation stating that the Department proposed the addition of the 0.08 ppm 8-hour ozone standard to both the Primary and Secondary Ambient Air Quality Standards contained in Appendices E and F. He added that the Department is the delegated authority to administer the federal Clean Air Act requirements and Oklahoma is required to provide a State Implementation Plan that includes measures to achieve acceptable air quality. Mr. Terrill indicated that the PM 2.5 standard was inadvertently left out of this proposal so would be brought before the Council at a later meeting. Ms. Myers mentioned that staff’s recommendation was for Council to adopt the rule as written and forward to the Environmental Quality Board for permanent rulemaking. Mr. Wilson made the motion and Mr. Treeman made the second.



State 111(d)/129 Plan for Commercial and Industrial Solid Waste Incinerators

Ms. Lisa Donovan advised that although no formal Council approval is required, federal regulations require that a public hearing be held to receive comments from the Council and public on the proposed plan. She advised that the proposed 111(d) plan would implement Emission Guidelines for Commercial and Industrial Solid Waste Incineration Units. Ms. Donovan listed all the necessary components of the Plan and provided copies for those who wanted to see it in its entirety. Ms. Donovan and Mr. Lasseter fielded questions and comments regarding the Plan.

Petition for rulemaking - Decision whether to refer petition to staff to initiate rulemaking

Ms. Pam Dizikes, Air Quality Division Legal Counsel, advised that a petition for rulemaking had been received seeking amendments for fugitive dust requirements in subchapter 29. She advised that Council’s role was to make the determination whether rulemaking should be recommended for formal rulemaking proceeding, whether to let this petition die, or to give specific instructions to staff on how they should proceed with this particular request. Ms. Myers called upon several people to present their viewpoints regarding this rulemaking request. Ms. Myers then called for questions of the presenters and/or Mr. Terrill. Following considerable discussion, Mr. Branecky moved that this petition be recommended for rulemaking and that staff review the petition and present staff’s position with respect to the proposed revisions at Council’s January meeting. Mr. Kilpatrick seconded that motion.



Division Director’s Report Mr. Terrill advised that he would be prepared to discuss a proposed approach to rulemaking hearings on the EPA’s revised New Source Review at the January meeting. He said that he would be attending the STAPPA meeting next week and expected that a model rule would be presented at that meeting.

He stated that the Repair and Maintenance rulemaking would be before the Council for rulemaking at a later date.

As a final item, Mr. Terrill updated the Council on the Early Action Compact stating that they are on track to meet the March 31st deadline to identify a control strategy for EPA.

NEW BUSINESS - None

ADJOURNMENT - 12:15 p.m. Next meeting scheduled for January 14, 2004.

1

1 DEPARTMENT OF ENVIRONMENTAL QUALITY 2 STATE OF OKLAHOMA 3

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5 * * * * *

6 TRANSCRIPT OF PROCEEDINGS

7 OF THE AIR QUALITY ADVISORY COUNCIL

8 OF PUBLIC HEARING ON ITEM NOS. 1-5A

9 OAC 252:10-5

10 REGISTRATION, EMISSIONS INVENTORY AND

11 ANNUAL OPERATING FEES

12 OAC 252:100-7

13 PERMITS FOR MINOR FACILITIES

14 HELD ON OCTOBER 8, 2003, AT 9:00 A.M.

15 IN OKLAHOMA CITY, OKLAHOMA

16 * * * * *

17

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19 REPORTED BY: Christy A. Myers, CSR20

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24 MYERS REPORTING SERVICE (405) 721-2882 25

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1 2 MEMBERS OF THE COUNCIL 3

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5 1. MR. DAVID BRANECKY - MEMBER

6 2. MR. BILL BREISCH - MEMBER

7 3. MR. GARY KILPATRICK - MEMBER

8 4. DR. BOB LYNCH - VICE CHAIRMAN

9 5. MR. GARY MARTIN - MEMBER

10 6. MS. SHARON MYERS - CHAIR

11 7. MS. SANDRA ROSE - MEMBER

12 8. MR. RICK TREEMAN - MEMBER

13 9. MR. JOEL WILSON - MEMBER

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2 STAFF MEMBERS

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4 MS. MYRNA BRUCE - SECRETARY

5 MR. EDDIE TERRILL - DIVISION DIRECTOR

6 MS. SCOTT THOMAS - AQD

7 DR. JOYCE SHEEDY - AQD

8 MS. PAM DIZIKES - LEGAL

9 MS. KENDAL CODY - LEGAL

10 MS. LISA DONOVAN - AQD

11 MR. MAX PRICE - AQD

12 MS. BEVERLY BOTCHLET-SMITH - AQD

13 MS. MICHELLE MARTINEZ - AQD

14 MS. CHERYL BRADLEY - AQD

15 MS. PAT SULLIVAN - AQD

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Christy A. Myers Certified Shorthand Reporter

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1

2 PROCEEDINGS

3

4 MS. MYERS: Let's get started,

5 please. Myrna, would you call roll?

6 MS. BRUCE: Let me get my

7 technical things going here.

8 MS. MYERS: And before we get

9 started would you please make sure all

10 pagers and cell phones are off.

11 MR. TERRILL: Let me just mention

12 before we go on the record, we don't have a

13 court reporter here today, because she had

14 a conflict and couldn't be here today. So

15 it will be just like she's here but we

16 couldn't get her here today. And the last

17 time we had someone sit in for her it was a

18 nightmare. The minutes were not very good.

19 So we decided to have her transcribe the

20 meeting rather than risk somebody that

21 didn't understand the lingo.

22 MS. BRUCE: Roll call. Mr.

23 Treeman.

24 MR. TREEMAN: Here.

25 MS. BRUCE: Ms. Rose.


5

1 MS. ROSE: Here.

2 MS. BRUCE: Mr. Breisch

3 MR. BREISCH: Here.

4 MS. BRUCE: Mr. Kilpatrick.

5 MR. KILPATRICK: Here.

6 MS. BRUCE: Mr. Branecky.

7 MR. BRANECKY: Here.

8 MS. BRUCE: Ms. Myers.

9 MS. MYERS: Here.

10 MS. BRUCE: Dr. Lynch.

11 DR. LYNCH: Here.

12 MS. BRUCE: Mr. Wilson.

13 MR. WILSON: Here.

14 MS. BRUCE: And, Mr. Martin.

15 MR. MARTIN: Here.

16 MS. MYERS: The next item on the

17 Agenda is approval of the minutes. Is

18 there any discussion or comments?

19 MR. BRANECKY: I move the minutes

20 be approved.

21 MS. MYERS: We have a motion for

22 approval. Do we have a second?

23 MR. TREEMAN: Second.

24 (Off-the-record comments)

25 MS. BRUCE: Mr. Treeman, approval


6

1 of the minutes please, sir.

2 MR. TREEMAN: Aye.


4 MS. ROSE: Yes.

5 MS. BRUCE: Mr. Breisch.

6 MR. BREISCH: Yes.


8 MR. KILPATRICK: Yes.


10 MR. BRANECKY: Yes.


12 DR. LYNCH: Yes.


14 MR. WILSON: Yes.

15 MS. BRUCE: Mr. Martin.

16 MR. MARTIN: Yes.


18 MS. MYERS: Yes.

19 The next item on the Agenda is

20 setting the meeting schedule for calendar

21 year 2004.

22 MR. TERRILL: What you've got

23 there is the DEQ Board set their Agenda at

24 their last meeting and that's what you see

25 down below. What we did is we just


7

1 selected the dates that allowed us to do

2 our notices and the things we have to do

3 prior to the meeting.

4 We just threw in the locations. If

5 you all want to move one or two, that's

6 your prerogative. I would like for you not

7 to move the dates, though, because the

8 dates are pretty firm that we need to have

9 them there in order to meet all the notice

10 requirements. The locations are totally up

11 to you all.

12 We're going to keep it at four for

13 next year. We may very well have to have

14 some special meetings for New Source Review

15 discussions or Early Action Compact rule

16 changes that we need to make, so we may end

17 up having two, three, or four other special

18 meetings dispersed around our regularly

19 scheduled meetings.

20 MS. MYERS: Any discussion or

21 suggestions from the Council on meetings or

22 places to hold meetings?

23 MR. TERRILL: I don't know that

24 you all have to -- if you all decide that

25 you just want to accept the dates, we can


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1 move the locations at a later time. If we

2 were going to move the January 14th

3 meeting, we would need to know that because

4 sometimes it is difficult to get a place to

5 have them. But if you all wanted to think

6 about the ones later in the year, you don't

7 have to designate the locations at this

8 point, just the dates.

9 MR. BREISCH: Do you need a

10 motion to accept the dates or what?

11 MR. BRANECKY: Just the dates?

12 MR. TERRILL: Whatever is your

13 pleasure. We have somebody who wants to

14 speak.

15 MR. BUD GROUND: I wonder if you

16 could tell us what those dates are?

17 MS. MYERS: Wednesday, January

18 14th, currently proposed to be held in

19 Oklahoma City. Wednesday, April 14th,

20 proposed to be held in Tulsa. Wednesday,

21 July 21st, proposed to be held in Oklahoma

22 City. Wednesday, October 20th, proposed to

23 be held in Oklahoma City, but I'd sure like

24 it to be Broken Bow.

25 MR. WILSON: I second that.


9

1 MR. BRANECKY: And seriously, I

2 realize that a lot of our air quality

3 issues are in Tulsa and Oklahoma City but

4 there are issues outside those areas and I

5 would also not oppose moving one of those

6 to some other place in the State. We can

7 decide that now or later, right?

8 MS. MYERS: Yes. Whatever is the

9 pleasure of the Council.

10 MR. WILSON: It's not too

11 difficult to scratch out Oklahoma City and

12 put Broken Bow down there, is it?

13 MS. MYERS: Right. Any

14 discussion?

15 MR. BRANECKY: Are you proposing

16 that?

17 MR. WILSON: I'm proposing that.

18 MS. MYERS: Is that a motion?

19 MR. WILSON: I'll move that we

20 change the proposed Agenda location of the

21 October 20th Council meeting to Broken Bow.

22 MS. ROSE: Second.

23 MS. MYERS: We have a motion and

24 a second. Myrna, would you call roll?

25 MS. BRUCE: Mr. Treeman.


10

1 MR. TREEMAN: Yes.


3 MS. ROSE: Yes.


5 MR. BREISCH: Yes.






11 DR. LYNCH: Yes.


13 MR. WILSON: Yes.


15 MR. MARTIN: Yes.


17 MS. MYERS: Yes.

18 The next item on the Agenda is the

19 public rulemaking hearings. And at this

20 point I will turn it over to our new

21 hearing officer, Beverly.

22 MS. BOTCHLET-SMITH: Good

23 morning. I am Beverly Botchlet-Smith. I

24 am Environmental Program Manager with the

25 Air Quality Division and I'll be serving as


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1 Protocol Officer for today's meeting.

2 These hearings will be convened by

3 the Air Quality Council in compliance with

4 the Oklahoma Administrative Procedures Act

5 and Title 40 of the Code of Federal

6 Regulations, Part 51, as well as the

7 authority of Title 27A of the Oklahoma

8 Statutes, Section 2-2-201, Sections 2-5-101

9 through 2-5-118.

10 These hearings were advertised in

11 the Oklahoma Register for the purpose of

12 receiving comments pertaining to the

13 proposed OAC Title 252, Chapter 100 rules,

14 as listed on the Agenda and will be entered

15 into each record along with the Oklahoma

16 Register filing.

17 If you wish to make a statement, it

18 is very important that you complete the

19 form at the registration table, and you

20 will be called upon at the appropriate

21 time.

22 And, as Eddie mentioned, when the

23 meeting date was changed from the 15th to

24 the 8th, our Court Reporter had a conflict.

25 She will not be here today and she will be


12

1 providing transcripts from our tape

2 recordings.

3 Council and staff making

4 presentations, please talk into the

5 microphones. Audience members, please come

6 to the podium to make any comments and

7 please state your name prior to making

8 those comments.

9 At this time we will proceed with

10 what's marked as Agenda Item No. 5A on the

11 Hearing Agenda. OAC 252:100-5,

12 Registration, Emissions Inventory and

13 Annual Operating Fees; and OAC 252:100-7,

14 Permits for Minor Facilities.

15 We call on Dr. Joyce Sheedy of our

16 staff to give our position on the rule.

17 DR. JOYCE SHEEDY: Madam Chair,

18 Members of the Council, ladies and

19 gentlemen.

20 The proposal to establish a new

21 permit exempt facility category was first

22 presented at the Air Quality Council

23 meeting on April 16, 2003. The hearing was

24 continued to the July 2003 Air Quality

25 Council meeting and again to the October


13

1 2003 Air Quality Council meeting to allow

2 time for input from a workgroup convened to

3 study the proposed revision. The workgroup

4 met on May 23, July 8, July 29, and August

5 19 of 2003.

6 Workgroup participants expressed

7 concern about the time and expense involved

8 in preparing and submitting an emission

9 inventory once every three years. They

10 sought further modification to the proposed

11 rule changes for small-scale oil and gas

12 production operators, by offering to

13 provide the Division existing survey data

14 to serve as a substitute for emission

15 inventory data required to be submitted for

16 each facility. As of this date, we have

17 been unable to obtain any survey

18 information that might serve as a

19 substitute for the emission inventory

20 information that is necessary to meet

21 federal program requirements.

22 The proposed revision creates a

23 Permit Exempt Facility category for

24 facilities with actual emissions of 40 tons

25 per year or less of each air pollutant


14

1 emitted and potential emissions less than

2 the threshold levels for PSD and Title V.

3 Owners and operators of facilities

4 that qualify for this category will not be

5 required to obtain air quality permits,

6 will not be required to pay annual

7 operating fees, and will only have to

8 submit an emission inventory once every

9 three years.

10 These facilities, however will

11 remain subject to all other applicable

12 State and federal air quality rules and

13 regulations.

14 The changes necessary to add a

15 permit exempt facility category are located

16 in Sections 2.1 and 2.2 of Subchapter 5,

17 Registration, Emission Inventory and Annual

18 Operating Fees; and in Sections 1.1, 2, 3,

19 15, and 18 of Subchapter 7, Permits for

20 Minor Facilities.

21 We believe a permit exempt facility

22 category will reduce the time staff spends

23 on permits for minor facilities without any

24 appreciable lessening of the control of air

25 pollutant emissions. The proposed revision


15

1 will also provide relief for owners and

2 operators of those minor facilities that

3 will no longer be required to obtain

4 permits.

5 While we have these sections open we

6 are also proposing to make some

7 nonsubstantive formatting changes for

8 uniformity and some language changes for

9 clarity.

10 Substantive changes to the proposed

11 revision since the July Air Quality Council

12 meeting include:

13 (1) The addition of new paragraph

14 5-2.1(a)(5) on page one in Subchapter 5,

15 clarifying that the Director may require a

16 special inventory when necessary.

17 (2) Changes to Subchapter 7 that

18 allow a permit exempt facility to be

19 located in a nonattainment area, former

20 nonattainment area or EAC unless the

21 facility is subject to OAC 252:100-39-47.

22 This has been accomplished by changes to

23 the definition of permit exempt facility in

24 Section 7-1.1. We propose to add a new

25 paragraph (E) on page eight that excludes


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1 major stationary sources in nonattainment

2 areas from being permit exempt facilities

3 and to revise what was paragraph (G) and is

4 now paragraph (H) on page nine, to exclude

5 facilities subject to Section 47 of

6 Subchapter 39 from being permit exempt

7 facilities.

8 (3) We also propose to add new

9 subsection 7-2(g) on page eleven,

10 clarifying that the methods of calculation

11 to be used in determining if a permit is

12 required or what type of permit is required

13 are those contained in OAC 252:100-5-2(d).

14

15 And (4) we replaced "less than 40

16 tons per year with 40 tons per year or less

17 throughout the revision.

18 Unless requested to do so, I will

19 not go through each of the other proposed

20 changes, since we are not requesting the

21 Council to recommend the proposed revision

22 to the Board for adoption as a permanent

23 rule at this time.

24 On September 23, 2003 we received a

25 letter dated September 22, 2003 from Don


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1 Whitney of Trinity Consultants containing

2 comments on the proposed revision. A copy

3 of the letter is in the Council packet and

4 the letter will be made part of the public

5 hearing record.

6 In the letter, Mr. Whitney points

7 out that in 252:100-5-2.1(a)(3) on page

8 one, the first letter of each word in the

9 title is capitalized while other titles in

10 this section have only the first letter of

11 the first word capitalized. He recommended

12 that only the first letter of the first

13 word be capitalized for consistency. We

14 agree with this comment and this error will

15 be corrected.

16 Mr. Whitney suggested that in

17 252:100-5-2.1(f) on page four, that the

18 first sentence be reworded for clarity as

19 follows: "A responsible official shall

20 certify the truth, accuracy, and

21 completeness of the emission inventory."

22 Staff will consider this change. It

23 doesn't alter the meaning of the

24 subsection, but merely puts the sentence in

25 the active voice rather than the passive


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1 voice.

2 Mr. Whitney pointed out that in the

3 definition of de minimis facility in

4 252:100-7-1.1, on pages seven and eight,

5 that subparagraph (C) has been deleted from

6 the proposed definition, therefore,

7 reference to it should be removed from the

8 first sentence of the definition. We agree

9 with Mr. Whitney's comment and this error

10 will also be corrected.

11 Mr. Whitney identified what he

12 considered to be an inconsistency with the

13 "permit continuum" concept in comparing the

14 definitions of de minimis facility and

15 permit exempt facility. Paragraph (B) of

16 the definition of de minimis facility

17 states that a facility may be de minimis if

18 among other things, "The facility is not

19 subject to the federal NSPS (40 CFR Part

20 60) or the federal NESHAP (40 CFR Parts 61

21 and 63) while paragraph (G) of the

22 definition of permit exempt facility states

23 that a facility may be a permit exempt

24 facility if, among other things, it: "is

25 not subject to an emission standard,


19

1 equipment standard, or work practice

2 standard in the federal NSPS (40 CFR Part

3 60) or the federal NESHAP (40 CFR Parts 61

4 and 63)." Mr. Whitney stated that in

5 keeping with the "permit continuum"

6 concept, the exclusion for a smaller "de

7 minimis facility" should be at least as

8 broad as a larger "permit exempt facility,"

9 and suggested that the wording of paragraph

10 (B) in the definition of de minimis

11 facility be replaced with that of paragraph

12 (G) in the definition of permit exempt

13 facility.

14 We will consider this comment

15 further; however, we would note that there

16 are differences other than the exemption

17 from the requirement to obtain a permit

18 that might necessitate a difference in

19 treatment of these two categories. It

20 should be kept in mind that while both

21 permit exempt facilities and de minimis

22 facilities are exempt from the requirements

23 to obtain a permit and to pay an annual

24 fee, permit exempt facilities remain

25 subject to all other applicable air quality


20

1 rules and regulations and must also submit

2 an emission inventory once every three

3 years. While a de minimis facility on the

4 other hand is not required to submit an

5 emission inventory and is subject to only

6 four air quality rules: Subchapter 13,

7 Open Burning; Subchapter 25, on Visible

8 Emissions; Subchapter 29, Control of

9 Fugitive Dust; and Subchapter 41, Emission

10 of Hazardous or Toxic Air Contaminants.

11 This means essentially that unless we

12 receive a complaint about a de minimis

13 facility based on one of these four rules,

14 we will have little or no contact with

15 these facilities. This being the case, we

16 want to be certain that there is no

17 requirement such as a reporting

18 requirements, recordkeeping requirement or

19 notification requirement as in some of the

20 NSPS and NESHAP that must be checked by us.

21 Mr. Whitney's remaining comments

22 were related to Subchapters 4 and 8, which

23 are not being revised at this time and to

24 Subchapter 41, which is being handled by

25 Mr. Max Price of our office.


21

1 A letter was received from Tom

2 Diggs, Air Planning Section, Region 6, EPA,

3 via FAX on October 1, 2003. Mr. Diggs

4 stated that his Section had reviewed the

5 proposed changes to Subchapter 5, Emission

6 Inventory and had no comments. He

7 indicated that the Region 6 Air Permitting

8 Section would send their comments, if any,

9 in a separate letter. Mr. Diggs' letter

10 was received too late to be included in the

11 Council packet but will be made part of the

12 hearing record.

13 And this morning we received a

14 letter from OIPA in which I think basically

15 they reminded us that there are still

16 unresolved issues to be discussed on this

17 rule. This, too, was too late to be in the

18 Council packet but will be made part of the

19 hearing record.

20 MR. BRANECKY: Will those be

21 included in our next packet, those comment

22 letters, or how do we get a copy of those

23 comment letters -- assuming this will be

24 continued to our next meeting.

25 DR. JOYCE SHEEDY: Does this go


22

1 in the next packet?

2 MR. SCOTT THOMAS: We can put

3 them in the next packet.

4 DR. JOYCE SHEEDY: Or we could

5 have copies made today, if you like.

6 MR. BRANECKY: I think we need to

7 see them. I'd like to anyway.

8 DR. JOYCE SHEEDY: We'll get some

9 copies made now.

10 Because this rulemaking increases

11 the threshold for requiring a permit, it is

12 anticipated that EPA will require a

13 demonstration that the proposed revision

14 will not violate applicable portions of the

15 control strategy or interfere with the

16 attainment or maintenance of the NAAQS. We

17 are now presenting that demonstration at

18 public hearing as the Technical Support

19 Document. Since this document was made

20 available for public review, we have

21 discovered that we can refine the numbers

22 somewhat using plant classification codes

23 that are in the emission inventory.

24 This document shows that there were

25 2,054 facilities listed on the Air Quality


23

1 Emission Inventory for year of record (YOR)

2 1999. Owners and operators of these

3 facilities reported emissions of 133,311

4 tons per year of SOx; 198,091 tons per year

5 of NOx; 72,895 tons per year of CO; 25,135

6 tons per year of Particulate Matter; 14,947

7 tons per year of PM-10; and 58,431 tons per

8 year of VOC. This was a total of 504,809

9 tons per year of emissions for all

10 pollutants reported for 1999.

11 Of these 2,054 facilities, 1,356

12 were non-Part 70 facilities. Owners and

13 operators of 1,161 of these non-Part 70

14 facilities reported emissions of 40 tons

15 per year or less of each pollutant

16 reported.

17 In turn, owners and operators of 741

18 of these facilities reported emissions of

19 less than 5 tons per year of each pollutant

20 reported. Some of these facilities would

21 be de minimis and, therefore, the owners or

22 operators would be unlikely to be

23 interested in the facility being a permit

24 exempt facility.

25 Using facility classifications


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1 supplied by Emission Inventory, we removed

2 from the list major sources (those

3 facilities have actual emissions of any

4 pollutant reported of 100 tons per year or

5 greater). We removed facilities that were

6 Part 70 sources by rule. We removed

7 synthetic minor sources, and we removed

8 facilities with a potential to emit greater

9 than the trigger levels for Part 70. We

10 also removed those facilities with

11 emissions less than 5 tons per year of each

12 pollutant reported. There were 420

13 facilities remaining that for 1999 reported

14 emissions of greater than 5 tons per year

15 and less than or equal to 40 tons per year

16 of each pollutant reported. This is 20.45

17 percent of the facilities that reported

18 emissions for the 1999 emission inventory.

19 It appears that it would be mainly from

20 this pool of facilities that permit exempt

21 facilities would come. These facilities

22 include facilities classified as true

23 minors, undetermined, and insignificant.

24 Owners and operators of these

25 facilities reported the following emissions


25

1 on the year of record 1999 emissions

2 inventory. They reported emissions of 85

3 tons per year of SOx, which is 0.06 percent

4 of all the sulfur oxide emissions reported

5 for 1999. They reported emissions of 4,364

6 tons per year of NOx, which is 2.18 percent

7 of all the NOx reported for 1999. They

8 reported emissions of 3,637 tons per year

9 of CO, which is 5 percent of the CO

10 reported for 1999. They reported 1,035

11 tons per year of Particulate Matter, which

12 is 4.12 percent. And they reported

13 emissions of 592 tons per year of PM-10,

14 which is 3.96 percent of all the PM-10

15 reported for 1999. And they reported

16 emissions of 3,446 tons per year of VOC,

17 which is 6 percent of all the VOC emissions

18 reported for 1999. This is a total of

19 13,159 tons per year of pollutants for

20 which fees could be waived if the permit

21 exempt facility category is established.

22 This represents 2.61 percent of the total

23 emissions reported in YOR 1999 emission

24 inventory.

25 Based on the 2003 fee rate of $22.28


26

1 per ton of regulated pollutant emitted, the

2 fees lost if all these facilities could

3 qualify for permit exempt facility status

4 would be approximately $293,000.00.

5 While our numbers are based on

6 emission inventory data, we are aware that

7 there are a number of facilities with

8 emissions greater than 5 tons per year of

9 any one air pollutant that are not on the

10 inventory. We have been told that there

11 are numerous oil and gas production

12 facilities that have emissions of at least

13 one air pollutant that are greater than 5

14 tons per year and emissions of each

15 pollutant emitted that are less than or

16 equal to 40 tons per year, and that the

17 permitting and inventory requirements are a

18 hardship for these small operators. We do

19 not believe that the fees generated by

20 these facilities would cover the costs of

21 permitting, inventorying and inspecting

22 them.

23 Since there remain unresolved

24 issues, Staff requests that the Council

25 continue this hearing until the January


27

1 2004 meeting. Thank you.

2 MS. BOTCHLET-SMITH: Do we have

3 questions from the Council for Dr. Sheedy.

4 MR. BRANECKY: I have a couple of

5 questions. To me it's important to

6 understand, for everybody to understand, if

7 we do this, there will be no detriment to

8 the environment. Is that true?

9 DR. JOYCE SHEEDY: This is --

10 MR. BRANECKY: There will no

11 increase in emissions?

12 DR. JOYCE SHEEDY: There should

13 not be because these sources will still

14 remain subject to the regulations.

15 MR. BRANECKY: Okay. I just

16 wanted to make sure everybody understood

17 that. The other question I had and this

18 was in the draft technical support

19 document. You talk about loss of revenues

20 of $316,000 by not feeing these sources.

21 And you also talk about that that loss will

22 be made up through the elimination of staff

23 time shifting over to major sources.

24 DR. JOYCE SHEEDY: This is one of

25 the things we're anticipating that should


28

1 be.

2 MR. BRANECKY: I have two

3 questions. Are there issues with major

4 sources that are not currently being

5 addressed? And two, will that result in a

6 necessary increase in fees for the major

7 sources by shifting that work load over to

8 the major sources?

9 DR. JOYCE SHEEDY: I hope not.

10 I'm probably going to defer that.

11 MR. TERRILL: Let me answer that,

12 Joyce. Most of you that are familiar with

13 our permit continuum that our previous

14 Executive Director came up with and we

15 believe very strongly in, the whole focus

16 shifts towards where the most likely public

17 health risk resides. And that's in the

18 larger facility, the facilities that have

19 toxic emissions and those type of things.

20 Our focus is already moving towards that

21 anyway because of the permit continuum and

22 this is just a way for us to do that.

23 Now, does that mean we're going to

24 shift these folks to doing nothing but

25 inspections of large sources and permitting


29

1 of large source? No. We've got a lot of

2 other things that we've got to do, like,

3 toxics is coming, and we've got to decide

4 what we're going to do and how we're going

5 to do it.

6 It will allow us to shift our

7 resources to looking at other areas related

8 to major sources and smaller sources that

9 have toxics issues without having worry

10 about issuing a permit to these one

11 thousand minor sources that we're not going

12 to do anything with anyway but write a

13 permit and fee them.

14 So it's not just a shift in

15 inspection emphasis, it's a shift in our

16 resources to look at other issues that we

17 believe are a greater public health risk

18 than what these minor sources present.

19 So, no, we don't think that we'll --

20 this in and of itself should not result in

21 an increase of Title V fees. Other things

22 might, but not this.

23 MS. MYERS: Joyce, I've got a

24 question on the first page of the proposed

25 rule under Subchapter 5, paragraph 5, under


30

1 Special Inventories. What kind of special

2 purposes would necessitate a request from

3 the Director or from the Division?

4 DR. JOYCE SHEEDY: Well, I'm

5 guessing here but I would anticipate that

6 if we had a non-attainment problem, for

7 instance, that we might need a special

8 inventory or all VOC sources in a certain

9 area or something like that. Eddie, do you

10 have any --

11 MR. TERRILL: Yes. We left this

12 in here and it's possible -- in fact, it's

13 pretty likely that we'll adjust that

14 language as we prepare to bring this rule

15 back in January. We believe that most of

16 the issues have been worked out -- they

17 don't all reflect in this document but we

18 believe the majority of the issues have

19 been worked out except for how we're going

20 to assure ourselves that if we have need to

21 look at a particular area of the State for

22 these sources that we're exempting that we

23 can get, if necessary, an accurate

24 inventory. An example would be, as the

25 Regional Haze Rule moves forward and we


31

1 start anticipating having State

2 Implementation Plans implemented or

3 submitted by the end of 2007, we could

4 have, for instance, Colorado doing their

5 analysis and saying that there's

6 apparently, based on their inventories and

7 their projections of what the emissions are

8 coming into their State, they've got

9 impacts on Class I areas and there are

10 sources in western Oklahoma that are

11 impacting them.

12 Well, most likely if what they've

13 done is they've made an assumption about

14 the oil and gas production in that area,

15 and we have to be able to respond, you

16 know, yeah, they are creating this problem

17 in them meeting their Regional Haze SIP or

18 no they are not. Because if they are, then

19 we've got to take steps in our SIP to make

20 sure that we reduce the emissions from

21 whatever sources to whatever levels we have

22 to do in order to satisfy their requirement

23 or disprove their claim.

24 So it's more of a precautionary

25 step, if you will. It could be that we


32

1 never have to implement this but before I'm

2 willing to sign off on this agreement and

3 move forward on this rule, I want to have

4 some agreed-upon-method for us to go back

5 and get these inventories should we need

6 them. So it will probably be tied to

7 language such as "demonstrated need" of

8 some sort. It'll be more specific than

9 just "by discretion" to decide I want a

10 statewide inventory of all the small

11 sources. Because if we don't have a

12 purpose for it, it's kind of ridiculous to

13 do it. But we may need it at some point.

14 MS. MYERS: Thank you.

15 MR. WILSON: I've got a question.

16 Joyce, I take it that all a facility has to

17 do, if they meet the requirements of a

18 permit exempt facility is that they have to

19 send in a notice requesting termination of

20 their permit. Am I reading that correctly?

21 DR. JOYCE SHEEDY: At this point,

22 I think that is right. We would need to

23 know, if they are a source that has a

24 permit, that they don't want to keep it.

25 MR. WILSON: If you've identified


33

1 and narrowed down these facilities to four

2 hundred and some-odd facilities, why don't

3 you send them a notice that says, look,

4 we're terminating your permit and you're

5 now permit exempt and here are the

6 requirements under a permit exempt

7 facility.

8 DR. JOYCE SHEEDY: Well, it's not

9 as easy as looking at our inventory to

10 determine which ones of those actually have

11 permits.

12 MR. WILSON: You know, you said

13 that you don't really have a lot of contact

14 with these facilities. And I really

15 suspect that they don't have a lot of

16 contact with you.

17 DR. JOYCE SHEEDY: I expect

18 that's right.

19 MR. WILSON: So I'm wondering how

20 are they going to know to send you all a

21 note? Because you're interested in really

22 getting them off of the list of how you

23 manage this. And so the only way that that

24 is going to happen is if they take the

25 action and send you the note.


34

1 DR. JOYCE SHEEDY: This is

2 probably an area that we need to give

3 further thought to in what would be the

4 easiest way for them and for us to get

5 their permits made null and void. I don't

6 know that we just want to do that without

7 their saying yes, we don't want to permit,

8 because they may have some need that we are

9 not aware of to have a permit.

10 MR. WILSON: I think you said the

11 right thing, I mean to me, and that is you

12 need to think a little bit more about how

13 all of this is going to happen.

14 DR. JOYCE SHEEDY: Yes. How we

15 actually -- the mechanics of how it's going

16 to be done.

17 MR. WILSON: Yeah. You wouldn't

18 want to decrease your staff expecting all

19 of them to send you a note and then have

20 only a half a dozen of them by the end of

21 the year apply for this.

22 I have another question. Last

23 Council meeting we covered some of this and

24 I had brought up the issue about why you

25 want to exclude facilities that are subject


35

1 to NSPS and NESHAP from this. And if I've

2 read what you've had and heard what you've

3 presented, correctly, there are not a lot

4 of facilities out there that are subject to

5 NSPS or NESHAP that would qualify for being

6 a permit exempt facility if it were

7 allowed.

8 DR. JOYCE SHEEDY: I'm not sure I

9 could say that. I mean, just because

10 you're an NSPS facility doesn't mean you

11 necessarily have large emissions.

12 MR. WILSON: Okay. In your

13 presentation this morning, you had

14 mentioned that you would like to keep those

15 facilities from being permit exempt

16 facilities. And I'll quote, "must be

17 checked on by us."

18 And I'm wondering, can't you check

19 on them anyhow?

20 DR. JOYCE SHEEDY: I'll give you

21 the reasoning that our staff -- this was

22 discussed within our staff about this

23 issue. When they're subject to an NSPS

24 although the NSPS itself does not require a

25 permit, there are certain inspections and


36

1 things that we continue to have to do. And

2 recordkeeping, sometimes they have to send

3 us in things. And this represents, on one

4 hand, an expense so that maybe they need to

5 be paying annual fees. And our own

6 inspectors feel that it is certainly easier

7 for them if the NSPS requirements are

8 spelled out in a permit and they feel that

9 it is actually easier for the facility as

10 well. And I think that's the main reasons

11 that we have said if the NSPS requires

12 anything greater than -- for instance, I

13 think, Kb has some tanks that are less than

14 ten thousand-five or six hundred gallon

15 capacity and the only thing they have to do

16 is keep a record on site of the dimensions

17 of their tank and its capacity. Anything

18 as simple as that we felt they don't need

19 to have a permit.

20 MR. WILSON: That's why in this

21 language you are talking about an NSPS or

22 NESHAP facility is subject to some sort of

23 a standard or control requirement.

24 DR. JOYCE SHEEDY: Yes.

25 Something that requires us to inspect or to


37

1 receive reports and that sort of thing.

2 MR. WILSON: Okay.

3 MR. TERRILL: Let me give you

4 another reason. Actually, there's a couple

5 of them but the main reason is when this

6 goes down to the EPA -- actually we want

7 comments back from EPA before it goes down

8 there -- it has to be looked at by two

9 groups, the rules group and the permits

10 group. Well, the rules group -- this is

11 really not their issue even though it'll be

12 going down as a SIP change -- but to the

13 permit folks, this is a big issue with them

14 and we did hear from them, tangentially, I

15 guess, a couple of days ago and they do

16 have significant concerns about this rule

17 which I suspected they would all along. It

18 just took them six months to figure out

19 what those concerns were and it will

20 probably take them another two months to

21 get them to us.

22 They would not approve this as a SIP

23 change if we took that out of there. And

24 our enforcement folks feel like -- and I

25 agree with them -- that probably half to


38

1 two-thirds of the folks that are subject to

2 an NSPS or NESHAP that might be permit

3 exempt would take that to mean that they

4 are exempt from everything. And that's

5 going to create an enforcement problem for

6 them that's unnecessary for us and them so

7 we don't want to leave them out. Plus we

8 couldn't get it through EPA. And I suspect

9 there's going to be a lot of hoops that

10 we're going to have to jump through between

11 now and next January to meet the permitting

12 requirements. So we'll just have to see

13 what they push back with. But that's a

14 couple more reasons.

15 MS. BOTCHLET-SMITH: Any other

16 questions from the Council?

17 MR. TREEMAN: I've got one. I'm

18 for this, you know, I'm definitely for it

19 but there's one question that I have. If a

20 person's out there and he's right now

21 emitting ten tons, what's going to be a

22 disincentive for him not to go on and take

23 his emissions up to thirty-nine and still

24 be permit exempt. Do you see that being a

25 problem?


39

1 MR. TERRILL: I don't think so

2 because unless they -- they don't have any

3 control equipment that they could remove

4 that we're aware of. It would just be an

5 increase in business. That would be a good

6 thing, I would think, for them.

7 We just don't anticipate that being

8 a problem that somebody is going to -- to

9 be honest with you, one of the real

10 driver's for this is that three years ago

11 when we raised the minor source fees to

12 match the major source fees, I made a

13 commitment to the small business folks that

14 were in our system, with a minor source

15 permit, that we would go out and level the

16 playing field for them and get those folks

17 who don't know anything about air quality

18 and the need for a permit to come in and do

19 all the things they're having to do. And

20 that just turned out to be a lot more work

21 than it was worth. And we just didn't feel

22 like we were gaining any environmental

23 benefit from it. And it was causing us to

24 spend a lot of resources that we felt like

25 we're not getting any environmental gain


40

1 for us either. And so that's what really

2 started this notion of this permit exempt

3 thing, but we just don't believe that it is

4 going to result in an increase in emissions

5 at all, because I suspect we don't know

6 about half to three quarters of the

7 facilities out there anyway. And we just

8 don't have the resources to go out and look

9 for them. And if they don't know about us,

10 they're not going to do anything

11 deliberately just to increase their

12 emissions. It's going to be part of what

13 they do and then if they do, if it creates

14 some kind of a nuisance problem or

15 something like that, we can still under our

16 existing rules pull them into the fold and

17 take care of that problem if we get a

18 citizen complaint.

19 DR. JOYCE SHEEDY: That's right.

20 They're still subject to all the other

21 existing rules.

22 DR. LYNCH: I'd like to make one

23 comment. The tables that staff put

24 together and provided are really helpful

25 for me to be able to see it all on one


41

1 page. I appreciate that.

2 MS. MYERS: Any other questions

3 or comments from the Council or from the

4 public? Recommendation from staff on this

5 rule is to continue until next Council

6 meeting; is that correct?

7 DR. JOYCE SHEEDY: Yes, that is.

8 MS. MYERS: I guess that at this

9 time, we can entertain a motion.

10 MR. BRANECKY: So move.

11 MR. KILPATRICK: Second.

12 MS. MYERS: We have a motion and

13 a second to continue this rule to the next

14 Council meeting in January.

15 Myrna would you call roll, please.


17 MR. TREEMAN: Yes.


19 MS. ROSE: Yes.


21 MR. BREISCH: Yes.






42


2 DR. LYNCH: Yes.


4 MR. WILSON: Yes.


6 MR. MARTIN: Yes.


8 MS. MYERS: Yes.

9

10 (End of Agenda Item No. 5A)

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43

1

2

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4

5

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8 AGENDA ITEM NO. 5B

9

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13

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44

1 PROCEEDINGS

2

3 MS. BOTCHLET-SMITH: Okay. The

4 next item on the Agenda is Item 5B OAC

5 252:100-13, Open Burning. Ms. Lisa Donovan

6 will give the staff position on the

7 proposed rule.

8 MS. LISA DONOVAN: Members of the

9 Council, ladies and gentlemen, the

10 Department is proposing amendments to OAC

11 252:100-13, Open Burning.

12 The purpose of the changes is to

13 clarify the scope of the conditions that

14 allow for open burning. While the rule is

15 open, there are also a couple of

16 housekeeping measures and corrections that

17 will be made.

18 During the spring Legislative

19 session, a new law was proposed regarding

20 open burning for the purposes of fire

21 training. A copy of the law is included in

22 the Council packet and is available on the

23 table in the back.

24 The law establishes requirements for

25 municipal fire departments wishing to


45

1 conduct fire training. It includes

2 conditions for notification of a planned

3 fire training activity, and inspection and

4 removal of asbestos, asphalt and lead

5 containing materials prior to the training

6 taking place. It also addresses waste

7 disposal following the burn.

8 The law was signed by the Governor

9 on May 21, 2003 and will become effective

10 on November 1, 2003. The Department

11 proposes to incorporate this statute by

12 reference into Subchapter 13.

13 The following changes and additions

14 to the Open Burning rule are also proposed:

15 Definitions of "fire training", "human-made

16 structure", and "yard brush" will be added

17 to section 13-2, to address terms in use in

18 the rest of the rule.

19 Section 13-7 has been restructured,

20 and additions made to clarify the

21 acceptable conditions under which open

22 burning may occur. 13-7(a) refers to State

23 Statute Title 27A section 2-5-106.1, the

24 new fire training law. 13-7(a) also

25 exempts industrial and commercial


46

1 facilities and fire training schools that

2 conduct on-site fire training from the

3 requirements of the statute.

4 New section 13-7(h) allows for the

5 burning of yard brush on the property where

6 the waste is generated.

7 Revisions are also proposed for

8 section 13-9 to correct an error in the

9 numbering, to clarify the general

10 conditions and requirements for allowed

11 open burning, and to correct an omission of

12 the exemption for hydrocarbon flares from

13 the prohibition against burning between

14 sunset and sunrise.

15 New section 13-9(e) prohibits open

16 burning during a state or local burn ban.

17 Notice of the proposed rule changes

18 was published in the Oklahoma Register on

19 September 1, 2003 and comments were

20 requested from the public. The EPA

21 supported the proposed changes in comments

22 received in a letter dated October 1, 2003.

23

24 Staff has been made aware of two

25 inconsistencies in the rule. The first


47

1 involves hydrocarbon flares. 13-9(e)

2 currently prohibits all open burning during

3 a burn ban. An exemption for flaring will

4 be added. The second inconsistency is

5 between the definitions of land clearing

6 operation and yard debris. Staff hasn't

7 had a chance to look into this but we will

8 make appropriate changes for the next time

9 Subchapter 13 is presented.

10 This is the third time for the Air

11 Quality Council to consider these

12 amendments and staff suggests that the

13 Council continue the hearing on the

14 proposed rule to its next meeting.

15 MS. BOTCHLET-SMITH: Questions

16 from the Council for Ms. Donovan.

17 MR. BRANECKY: I have one

18 question. It just kind of jumped out at me

19 this morning. You allow the burning of

20 yard brush, and yard brush includes broken

21 branches and shrubbery and tree trimmings,

22 it includes everything but the stump. Why

23 can't you burn the stump if you can burn

24 everything but? What's the difference?

25 MS. LISA DONOVAN: I have no


48

1 problem with burning the stump, it's just

2 not included.

3 MR. TERRILL: It just got left

4 out.

5 MR. BRANECKY: It says "does not

6 include tree stumps".

7 MR. TERRILL: It would smoulder

8 for a long time.

9 MR. BRANECKY: It's because you'd

10 have to add some fuel to burn the stump?

11 I'm just curious.

12 MR. TERRILL: We probably could

13 have passed this rule today, but the more

14 we looked at this -- especially the

15 relaxation for open burning rule to allow

16 generated yard waste to be burned, the more

17 we looked at studies that are out there,

18 the more concerned we got about what we

19 were doing.

20 And you know this is going on anyway

21 and this is another one of those instances

22 where we took a look at what was actually

23 happening out in the rural areas and even

24 in some cities where the city may issue a

25 burn permit to allow folks to do that and


49

1 it's kind of -- to what degree should we go

2 to protect people from themselves. And a

3 lot of this burning, the real exposure is

4 more to the person who is actually doing

5 the burning than it is to the neighbors

6 unless they are in such a place that the

7 smoke is going directly into a home or

8 something like that.

9 But what we thought we would do is

10 just leave this open for three or four

11 months or until the next meeting, until

12 January, and do some further study and hope

13 to get some feedback from the public and

14 the Council as to whether or not we are --

15 our concerns are unwarranted -- that's

16 their choice -- if they want to expose

17 themselves to it or if we really should be

18 a big brother, if you will, and prohibit

19 it. It's going to happen anyway and what

20 we're really looking at here is the yard

21 clippings and that sort of thing. I really

22 don't believe that the limbs themselves are

23 that big an issue and it does reduce the

24 amount of landfill material and so it

25 allows for other things to go to the


50

1 landfill. So as long as it doesn't create

2 a nuisance for their neighbor we don't

3 believe that's a problem but we do have

4 some concerns about grass clippings.

5 Because of the amount of chemicals that are

6 applied to lawns these days and that sort

7 of thing that just concerns us. So we're

8 hoping feedback, if we don't get any we'll

9 make our own best determination and make a

10 recommendation in January for passage of

11 some sort of rule.

12 MR. BRANECKY: Do that many

13 people burn grass clippings?

14 MR. TERRILL: Apparently, so.

15 MR. BRANECKY: Do they?

16 MR. TERRILL: I don't but I guess

17 some people do.

18 MR. GARY KURTZ: They smoke a

19 lot, too.

20 MR. BRANECKY: Yeah. I can

21 understand that.

22 MS. MYERS: I've got one question

23 on it that needs to be considered before we

24 bring it back. Subparagraph (h) for yard

25 brush, it says that yard brush may be


51

1 burned on the property where the waste was

2 generated. Does that have anything to do

3 with, within city limits? There's some

4 fairly large pieces of property within city

5 limits but I'm not sure that we want open

6 burning of yard waste within the city

7 proper. That's a question, do we need to

8 address that some how?

9 MS. LISA DONOVAN: That is true.

10 MS. MYERS: It may be addressed

11 in city ordinances but there needs to be

12 some reference. When you're just saying

13 that it could be burned on the property

14 where it's generated if somebody doesn't

15 know enough to go look up city ordinance to

16 find out, they're going to say, well, the

17 state says I can do that.

18 MS. LISA DONOVAN: Right. We did

19 add this time around to maybe cover this

20 but we probably do need to look into this.

21 In 13-7, where not prohibited by local

22 ordinances the following are allowed. But

23 that may be something we need to add.

24 MR. BREISCH: So there is a

25 possibility of coupling this where there is


52

1 a dwelling, so you don't get a big piece of

2 vacant property where people can go burn.

3 MR. TERRILL: I see. That's a

4 good point.

5 MS. MYERS: Well, in some

6 instances you may have an acre to three

7 acres within city limits, still close

8 enough to neighbors to be of concern. So

9 that's my question.

10 DR. LYNCH: I have a comment. I

11 think I may have brought this up before

12 about -- 13-7 section (e), about burning of

13 domestic refuse where no collection and

14 disposable service is reasonably available.

15 Does that mean if a county has some sort of

16 dumpster program, is that reasonable -- is

17 that reasonably available?

18 MS. LISA DONOVAN: I think the

19 way we generally interpret that is

20 curbside-type pickup.

21 MR. TERRILL: I think it's pretty

22 much if there's any service available at

23 all, you're not supposed to be burning it.

24 DR. LYNCH: So that's every

25 county is required to have some sort of


53

1 domestic refuse collection system?

2 MR. TERRILL: They are not

3 required. If they don't have something

4 then there's nothing for those folks to do.

5 And I'd rather them burn it than dump it on

6 the roadside in a bar ditch somewhere.

7 DR. LYNCH: Isn't there some

8 legislation that required county

9 commissioners to establish some sort of a

10 program.

11 MR. TERRILL: There may very well

12 have been. I don't know. We can check

13 that out.

14 DR. LYNCH: If I lived in

15 Cherokee county and I was twenty miles from

16 a dumpster, I'd say that's not reasonable.

17 If I lived there. Being here, I'd say

18 that's reasonable.

19 MR. TERRILL: That rule has been

20 on the books for thirty-five or forty

21 years.

22 DR. LYNCH: See, I think that's

23 essentially unenforceable.

24 And the other question I had was in

25 the law that was written about all asphalt,


54

1 asbestos, and lead-containing material

2 shall be removed. Who certifies that a

3 hundred percent of this stuff has been

4 removed?


6 anybody -- we're creating a form that

7 they're supposed to go through and they're

8 supposed to notify us and we'll try to go

9 out and take a look. I don't know if

10 there's going to be any certification but

11 we felt like what we got was better than

12 what we were going to get, meaning they

13 wouldn't have to remove anything, so it was

14 kind of a compromise -- the language if you

15 will.

16 We will try to get out there and

17 take a look either through our ECLS offices

18 or through our staff to verify that

19 especially the asbestos, they have to make

20 a NESHAP notification -- we generally

21 inspect all of those for asbestos. Now

22 lead-based paint, we haven't exactly

23 figured out how we're going to do that yet.

24 But we're going to try to get out on all

25 those to verify that, yeah, they've made a


55

1 good faith effort to remove all we can see.

2 DR. LYNCH: You might think about

3 altering that language not to say all,

4 because that means 100 percent and they

5 can't get all of it.

6 MR. TERRILL: That's the goal.

7 DR. LYNCH: They can't get there.

8 It's impossible.

9 MR. TERRILL: I think we made

10 some suggestions like that but it didn't --

11 MS. MYERS: Under 13-9(c) it

12 refers to only when atmospheric conditions

13 will readily dissipate contaminants. What

14 are the guidelines for that? When the

15 winds blowing real good?

16 MS. LISA DONOVAN: Well, yes, and

17 no. Of course, you don't want to burn when

18 there are strong winds because you have a

19 chance of blowing fire. We put that in

20 there to serve notice for people to be

21 aware of atmospheric conditions and that's

22 why we put in the ozone language also. We

23 cannot say you cannot burn on an ozone day,

24 we just say, please, don't, please, think

25 about it. And that's why we also put the


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1 atmospheric conditions language in there.

2 MS. MYERS: You may want to take

3 a look at rewording that a little again.

4 The word "only" is somewhat limiting but

5 not defined.

6 MS. LISA DONOVAN: Okay.

7 MR. TERRILL: And we may end up,

8 if we decide to allow other things, we may

9 do some outreach and some public education

10 through our website and other areas to

11 educate folks about some of the hazards of

12 burning this stuff in their backyard. So

13 at least if they chose to do so, they have

14 the information that they can use to make

15 their own informed decision as to the

16 potential hazards they expose themselves

17 to.

18 But, like I say, we would like some

19 feedback from the Council and the audience

20 if they have thoughts on this matter of how

21 to make this a workable rule and still

22 protect public health, too.

23 MS. BOTCHLET-SMITH: Are there

24 any questions from the public? Sylvia.

25 MS. SYLVIA PRATT: My name is


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1 Sylvia Pratt. Am I understanding this to

2 say that this rule will ban people that

3 live in the rural areas from burning their

4 own household trash? Is that the intent?

5 MR. TERRILL: No. We're not

6 making any changes to that rule. That's

7 one that's been there for. The trash

8 service part of it, that's been in there, I

9 guess, from the beginning of the rule,

10 itself, back in the '70s. I think it was

11 designed originally to get rid of the burn

12 barrels and that sort of thing. And I

13 don't know that we've ever had, other than

14 dumps where folks have had dumps where

15 they've been burning, I don't know that

16 we've had any issues with this in twenty

17 years. So I don't anticipate this to

18 change anything -- any practices that is

19 going on now.

20 MS. SYLVIA PRATT: But the way it

21 reads?

22 MR. TERRILL: That's the way it's

23 always read. If you have trash service

24 that is reasonably available to you and you

25 can make your own determination as to what


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1 reasonable is, you are not supposed to be

2 burning it.

3 MS. SYLVIA PRATT: Well, what if

4 there's a trash service halfway across the

5 county and they'll come and pick up for $20

6 a month, and people on fixed incomes and

7 farmers that are barely making it, that's a

8 lot of money to them. Is that reasonable?

9 How do you decide reasonable?

10 MR. TERRILL: I don't know how

11 they decided reasonable back thirty years

12 ago.

13 If we got a complaint on it, we

14 would go out and investigate and we would

15 treat it on a case-by-case basis but to be

16 honest with you, I don't know because it

17 hasn't come up. I don't think we've had a

18 complaint about open burning relative to

19 disposal of trash from a household, at

20 least in the time I've been here -- and I

21 would be willing to bet we haven't had one

22 in fifteen years, twenty years. It just

23 doesn't come up.

24 So that probably says that if it's

25 going on, the neighbors don't care and we


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1 don't get called on, then we're not going

2 to go look at it.

3 MS. SYLVIA PRATT: I don't know.

4 It just seems rather silly to have a rule

5 that you're not going to enforce. Unless,

6 you -- the way I read it right now, it

7 makes most of my neighbors criminals. You

8 know, rule breakers.

9 MR. TERRILL: Well, if we get a

10 complaint then we'll go out and investigate

11 it but like I said, I don't even think

12 we've looked at this part as part of it

13 because this is not something we're

14 changing. This is the way the rule has

15 been for thirty years, so we didn't even

16 think about that until somebody brought it

17 up.

18 But I don't know how to respond to

19 that. We just don't, I guess, understand

20 that there is a problem because we don't

21 get any complaints about it. And we aren't

22 out looking for it. Our ECLS folks that

23 are out, if they see something like that

24 going on, would probably say something. So

25 it must not be creating a nuisance problem


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1 or a public health problem or I think we

2 would have heard about it.

3 MS. SYLVIA PRATT: Well, in most

4 cases I doubt that it is but it's just --

5 I've lived in a rural area since 1975 and I

6 had no idea that it basically was against

7 the law.

8 MR. TERRILL: You weren't

9 supposed to burn trash? Yeah. That's been

10 like that for, like I said, thirty years.

11 And if you have a suggestion to change that

12 rule to clarify it we're glad to hear it.

13 I don't know that we'll make that motion

14 because if we don't perceive a problem,

15 there's really no need to change it. But

16 if you have some suggestions on how to word

17 this so it would be more reflective of the

18 real world, send them to me and we'll take

19 a look at it. We might make changes as

20 part of our January meeting. And we'll

21 take a look at it. It just never dawned on

22 us, that this was needed.

23 MR. WILSON: Eddie, I think her

24 comments are on record now. She's

25 expressed a concern about prohibiting or


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1 having a regulation in place that's not

2 really serving any purpose.

3 Sylvia, I don't want to speak on

4 your behalf but I think you've just

5 provided your comment on that issue.

6 MR. TERRILL: This kind of goes

7 under the category of be careful what you

8 wish for because we may decide that we

9 can't make changes to this rule if there's

10 a problem that we'll need to go out and

11 look for.

12 I'll be real surprised if EPA would

13 accept this as a rule change because this

14 goes back to like the foundations of air

15 quality when burn barrels were there and

16 so, you know, we'll take a look at it.

17 MS. LISA DONOVAN: And if anybody

18 is interested, I have a stack of documents

19 of things that we've looked at. It's

20 mostly specifically about leaves and yard

21 debris but there is some information in

22 there about household waste and burning and

23 why this is a big push from EPA and across

24 the country to get rid of it. I have that

25 with me today if anybody wants to take a


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1 look at it.

2 MR. WILSON: You mentioned that

3 and I don't know how big the stack is but

4 sometimes that information in our packets

5 would be really helpful. Because it gives

6 us an idea without us having to find it on

7 our own of the background that's behind the

8 development of these regulations. So if

9 you see something as you're putting these

10 things together, there's plenty of room in

11 this thing for that to be attached.

12 MS. LISA DONOVAN: Would you

13 prefer to have it in electronic form?

14 Because a lot of it is electronic

15 documents.

16 MR. WILSON: It's electronic.

17 That maybe a way to distribute it there,

18 but we'd like to see it.

19 MS. LISA DONOVAN: I can make

20 some copies of it today or I can send it

21 out electronic -- which ever.

22 MR. WILSON: We promise not to

23 print them out and burn them. How about

24 that.

25 MS. LISA DONOVAN: Very good.


63

1 DR. LYNCH: Eddie, what would

2 happen if someone called and said, my

3 neighbor is burning trash and there is

4 trash service available, what would you do?

5 MR. TERRILL: That would be

6 handled through ECLS and I don't want to

7 speak totally for them but I suspect they

8 would determine whether or not trash

9 service was reasonably available --

10 DR. LYNCH: Let's say it was.

11 MR. TERRILL: -- and then they

12 would issue them a warning letter and

13 require them to take that trash to a --

14 DR. LYNCH: And what happens if

15 they don't.

16 MR. TERRILL: I guess that it

17 would be possible that they would get an

18 order -- a penalty from ECLS. Normally,

19 that stuff is worked out though.

20 DR. LYNCH: So can they issue a

21 fine or do they --

22 MR. TERRILL: They could.

23 DR. LYNCH: How big is that fine?


25 it's statutorily set. They may have a


64

1 matrix that they go by up there. I know

2 that they do for what I call the

3 traditional open burning which is --

4 somebody collects it on their property from

5 their neighbors and burns it and we get a

6 complaint, they have a standardized amounts

7 for that but I'm sure it would be somewhat

8 less. It's just a matter of education more

9 than anything else when you are talking

10 about a residential owner.

11 But, like I said, we don't get any

12 complaints about this, and that's really

13 what would generate us to look into it.

14 And the fact that we haven't got any in,

15 for like I said, a residential burning in

16 twenty years or so, tells me that it

17 probably is going on, like you say. But

18 it's an accepted practice and nobody thinks

19 anything about it until somebody moves into

20 the neighborhood from out of town.

21 MR. WILSON: I have just a couple

22 of more. They are not questions but

23 they're just things I think you should take

24 a look at. The definition of fire

25 training. In that first line the word "at"


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1 -- "set at" -- the word "at" I don't really

2 understand why it's there.

3 MS. LISA DONOVAN: That's a typo.

4 Thank you.

5 MR. WILSON: The "human-made

6 structure" is there a reason why we added

7 that modifier? Do we want to exclude

8 beaver dams or rat nests or something.

9 MS. LISA DONOVAN: That was

10 something that was changed in the

11 Legislative process and so we made that

12 change also.

13 MR. WILSON: Blame it on the

14 feds. Another comment I had. Under

15 general conditions and requirements for

16 allowed open burning. If you read that

17 first sentence on the second line it says

18 "may be conducted as" -- I just scratch

19 those out and put "is". Saves some paper,

20 I guess. And to look at some of the uses

21 of the word "may" in determining

22 particularly in incinerators and yard

23 brush. Maybe that's all right there but

24 we've had problems in the past where we get

25 a little sloppy on our "mays" and "cans"


66

1 and "shalls". They're in here quite a bit.

2 And I have one question on this

3 about having in here "when not prohibited

4 by local ordinances" and also the reference

5 to the burn ban. Let's say, for example,

6 somebody gets caught burning during the

7 burn ban. Now that this language is in

8 here, can they also be fined by DEQ as a

9 result of having this in the air quality

10 regulations.

11 MR. TERRILL: They could get

12 fined but our general practice is to issue

13 a warning letter and say, you know, these -

14 - most of it is education because generally

15 they don't know. But if we get a second

16 one then that tells me that they do know

17 because we've got it, we've issued a

18 warning letter, and we might take some sort

19 of action then. But I don't know that

20 we've ever on any of these issued a

21 penalty, assuming it's just a small -- if

22 someone's bringing stuff in, then we may

23 have a penalty associated with that. But

24 just an individual that didn't know or

25 whatever, it's educational the first time


67

1 and the second time it's possibly a small

2 penalty.

3 MS. LISA DONOVAN: And, Joel, I

4 think, we added those statements -- we've

5 had issues before where we've discussed

6 these type of rules, how, many people

7 aren't familiar with the rules so they

8 might not know to look here and look there

9 and look here and look there for something,

10 and that's why we put those in there. So

11 even if they weren't thinking about a burn

12 ban before, if they looked at this rule,

13 they might go "Oh, there might be a burn

14 ban." Or, "Oh, I might need to check local

15 ordinances."

16 MR. WILSON: And I can understand

17 the utility to that. I just didn't want

18 that great big stick that you don't swing

19 very often to get bigger.

20 MR. TERRILL: What happened to

21 the trust factor?

22 MR. WILSON: It's not appropriate

23 here.

24 MR. TERRILL: I agree.

25 MR. WILSON: You're here to


68

1 protect the public health and the

2 environment and not to make sure that

3 people don't burn during the burn ban.

4 MR. DON WHITNEY: Don Whitney.

5 Back to the ozone alert day, I think, I

6 would recommend that that ought to be a

7 stronger prohibition if we're going to, in

8 this rule, propose during a state or local

9 burn ban, the same kind of strong language

10 ought to be there for an ozone alert day

11 since that's what all our air rules are

12 geared towards. I think we should be

13 stronger about that.

14 MR. BRANECKY: What kind of

15 language would you propose.

16 MR. DON WHITNEY: Just the same

17 prohibition like we have for the local burn

18 ban down there in paragraph (e).

19 MR. BRANECKY: Prohibiting

20 burning on ozone alert days.

21 MR. DON WHITNEY: Yes.

22 MR. SCOTT THOMAS: You would have

23 a problem with that somewhere where the

24 ozone alert is called and what areas are of

25 concern. Because we have call alerts for


69

1 Tulsa. We've called them generally for

2 Tulsa, we don't generally call them for

3 specific areas and there might be a day

4 when there's a burn ban in Tulsa, a burn

5 ban in Lawton -- I mean an ozone alert and

6 a statewide ozone alert in the panhandle

7 that wouldn't be --

8 MR. TERRILL: We'd have to think

9 how to do that because that would be kind

10 of hard to enforce I would think. But

11 we'll take a look at it.

12 MR. RICK ABRAHAM: My name is

13 Rick Abraham and I've heard the Council

14 make reference to creating a nuisance and

15 with regard to this rule change and the

16 previous one -- and are you under the

17 impression that there is a regulation which

18 maybe serves as a safety net where id

19 conditions create a nuisance, that the

20 Agency can take action -- air pollution

21 nuisance?

22 I think what you said with the

23 previous was, you could bring them into the

24 fold if they were in fact creating

25 nuisances because of air pollution.


70

1 MR. WILSON: Actually, I think

2 that's a really good question.

3 MR. RICK ABRAHAM: Here's the

4 question, I think. It's a question to you

5 which I think you need to direct to staff

6 because I'm here to speak to another issue

7 -- air pollution issue and proposed rule

8 change. Our understanding from staff is

9 that the DEQ does not -- deliberately does

10 not pursue violations on the basis that

11 nuisances are created. They leave it up to

12 citizens to use the courts to do that.

13 And I think their -- I mean, the

14 Agency investigates and often finds

15 nuisance conditions created by air

16 pollution but I just want you to know that

17 we've been told that there is not that

18 safety net. That's not something you can

19 fall back on to go after a company if

20 you're given an exemption and for some

21 reason it creates a nuisance, the agency is

22 not pursuing those violations. And they

23 certainly have not in the case we will be

24 talking about. I don't know if that is the

25 general practice or something -- but I


71

1 don't know what your understanding is

2 because our understanding is that is not a

3 safety net. The Agency does not enforce

4 nuisance violations.

5 MR. TERRILL: Do you all want Pam

6 to talk to that or not?

7 MR. WILSON: I'll talk to that.

8 You know, there are nuisance laws in this

9 state that are outside of what this DEQ

10 manages, wants to manage, enforces. Those

11 laws are written on the books to protect

12 people from nuisances. The DEQ needs to

13 get involved when there are issues of

14 public health and issues around the

15 environment.

16 Me, sitting on this Council, I

17 wouldn't want to get involved in trying to

18 review proposed regulations or some other -

19 - in some way manage the issues of

20 nuisance.

21 We try to draw some sort of a line

22 between what has been determined to be a

23 threat to people's health or the

24 environment, and then we build on that --

25 the EPA does that for us -- we build on


72

1 that to create rules that protect people in

2 this state and that industry in this state

3 can live with.

4 And I heard Eddie's statement, when

5 he said that, bring them into the fold,

6 around the nuisance issue. I'm not sure

7 that's really what he meant. I think he

8 was talking more on a health issue or a

9 public health issue. I don't want to speak

10 too much for you, Eddie, but I picked up on

11 the same use of the words there and thought

12 well, no, we are not here to try to deal

13 with issues of nuisance unless the nuisance

14 is a public health.

15 MR. RICK ABRAHAM: I think you

16 are mistaken. I think you need to read the

17 law and read your rules because -- read the

18 definition of air pollution. If air

19 pollution interferes with the use and

20 enjoyment of people's property, that's

21 within the jurisdiction of this Agency. If

22 it threatens public health, I mean, read

23 the nuisance law which under -- I believe

24 is under the Texas Agricultural Act and

25 there is a separate law. It is also within


73

1 the jurisdiction of this Agency to deal

2 with nuisance created by air pollution from

3 a facility that this Agency regulates.

4 MR. WILSON: Does anybody here

5 have the definition of air pollution?

6 MR. RICK ABRAHAM: Well, look,

7 there are several definitions which take

8 the same language out of nuisance law and

9 put it into your own law.

10 MR. TERRILL: I think you are

11 right, Joel. I was referring to the

12 complaint system. When we get a complaint,

13 that brings them in more so than a nuisance

14 so it was just a mis-speak on my part.

15 MS. BOTCHLET-SMITH: Pam, did you

16 have something to add?

17 MS. DIZIKES: I don't think that

18 I could say it better than Joel. Thank

19 you. But I will mention that we do have a

20 petition for rulemaking today and if the

21 Council recommends that we go forth with

22 the formal rulemaking, we will be sure to

23 address those issues at that time.

24 MS. MYERS: I think at this time

25 we are not going to resolve the issues that


74

1 are being discussed. The rule is coming

2 back again in January. Rather than get

3 bogged down in arguments and discussion at

4 this point, perhaps what we need to do is

5 ask the staff for recommendation on this

6 rule and proceed.

7 MS. LISA DONOVAN: We'd like to

8 continue it to January.

9 MS. MYERS: Okay. Staff would

10 like to continue this rule. Do we have a

11 motion?

12 MR. MARTIN: I make a motion to

13 continue it to the next meeting.

14 MS. MYERS: We have a motion, do

15 we have a second.

16 MR. WILSON: I'll second it.

17 MS. MYERS: Myrna, would you call

18 roll, please.




22 MS. ROSE: Yes.





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5 DR. LYNCH: Yes.


7 MR. WILSON: Yes.


9 MR. MARTIN: Yes.


11 MS. MYERS: Yes.

12 (End of Item No. 5B)

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1 PROCEEDINGS

2

3 MS. BOTCHLET-SMITH: The next

4 item on the Agenda is Item No. 5C, OAC

5 252:100-41, Control of Emission of

6 Hazardous Air Pollutants and Toxic Air

7 Contaminants. And we call on Mr. Max Price

8 of staff to present the staff position.

9 MR. MAX PRICE: Madam Chairman,

10 Members of the Council, ladies and

11 gentlemen.

12 The proposed revisions to OAC

13 252:100-41-15 will update the

14 incorporations by reference of specific

15 National Emission Standards for Hazardous

16 Air Pollutants (NESHAP) in 40 CFR Part 61

17 and the Maximum Achievable Control

18 Technology (MACT) standards for hazardous

19 air pollutants in 40 CFR Part 63 to the

20 versions that existed on July 1, 2003.

21 The U.S. Environmental Protection

22 Agency delegated DEQ the authority to

23 implement and enforce these standards. We

24 update the references in Agency rules

25 annually to keep them current.


78

1 The new part 63 MACT standards

2 proposed for incorporation are: AAAA (4A)

3 Municipal Solid Waste Landfills. JJJJ (4J)

4 Paper and Other Web Coating. OOOO (4O)

5 Printing, Coating, and Dyeing of Fabrics

6 and Other Textiles. QQQQ (4Q) Surface

7 Coating of Wood Building Products. RRRR

8 (4R) Surface Coating of Metal Furniture,

9 WWWW (4W) Reinforced Plastic Composites

10 Production. BBBBB (5B) Semiconductor

11 Manufacturing. CCCCC (5C) Coke Ovens:

12 Pushing, Quenching, and Battery Stacks.

13 FFFFF (5F) Integrated Iron and Steel

14 Manufacturing. JJJJJ (5J) Brick and

15 Structural Clay Products. KKKKK (5K) Clay

16 Ceramics Manufacturing. LLLLL (5L) Asphalt

17 Processing and Asphalt Roofing

18 Manufacturing. MMMMM (5M) Flexible

19 Polyurethane Foam Fabrication Operations.

20 NNNNN (5N) Hydrochloric Acid Production.

21 PPPPP (5P) Engine Test Cells/Stands. QQQQQ

22 (5Q) Friction Materials Manufacturing.

23 SSSSS (5S) Refractory Products

24 Manufacturing.

25 After July 31, 2002, EPA published


79

1 amendments and/or corrections to the

2 following subparts which had already been

3 incorporated by reference into OAC 252:100-

4 41-15. 40 CFR Part 61, Subpart FF (2F)

5 Benzene Waste Operations. 40 CFR Part 63,

6 Subpart A General Provisions. 40 CFR Part

7 63, Subpart MM (2M) Chemical Recovery

8 Combustion Sources at Kraft, Soda, Sulfite,

9 and Stand-alone Semichemical Pulp Mills.

10 40 CFR Part 63, LLL (3L) Portland Cement

11 Manufacturing Industry. 40 CFR Part 63,

12 Subpart MMM (3M) Pesticide Active

13 Ingredient Production. 40 Part CFR 63,

14 Subpart RRR (3R) Secondary Aluminum

15 Production. 40 CFR Part 63, Subpart VVV

16 (3V) Publicly Owned Treatment Works. 40

17 CFR Part 63, Subpart SSSS (4S) Surface

18 Coating of Metal Coil. And 40 CFR Part 63,

19 Subpart XXXX (4X) Rubber Tire

20 Manufacturing.

21 We received one comment that is not

22 included in your packet from EPA. It will

23 ultimately be put in your packet and will

24 be made part of the record because it's the

25 same sheets of the comments that Dr. Sheedy


80

1 presented. I'll go ahead and read the

2 comment to make sure it gets on the record.

3 EPA: "We agree with the updates to

4 make the State Regulations consistent with

5 the National Emission Standards for

6 Hazardous Air Pollutants as of July 1,

7 2003."

8 To which we reply: "Thank you very

9 much."

10 We also got one comment from Don

11 Whitney and it had to do with our

12 terminology "incorporated by reference"

13 versus "adopted by reference". And as I

14 wrote Don back in an e-mail, I will look at

15 that. That probably needs to be changed

16 but we don't need to do it now, we can wait

17 until next time because this is a yearly

18 thing. And it appears -- those two terms

19 appear in our rules in different places so

20 I need to look at the context and make sure

21 that the consistency is all through the

22 rules not just in this one part. So we'll

23 take care of that later.

24 Although this is the first time the

25 Council will consider the proposed


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1 amendments, staff suggests that the Council

2 vote to recommend to the Environmental

3 Quality Board permanent adoption of the

4 proposed rules because they are routine

5 changes.

6 MS. MYERS: Any questions from

7 the Council? From the public? Staff has

8 recommended that we approve this as

9 written. Do we have a motion?

10 MR. WILSON: So moved.

11 MR. MARTIN: Second?

12 MS. BRUCE: Who was the second,

13 please?

14 MS. MYERS: Gary.

15 MS. BRUCE: Gary.

16 MS. MYERS: Myrna, would you call

17 the roll please?

18 MR. BRUCE: Mr. Treeman.



21 MS. ROSE: Yes.






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4 DR. LYNCH: Yes.


6 MR. WILSON: Yes.


8 MR. MARTIN: Yes.


10 MS. MYERS: Yes.

11 (End of Item No. 5C)

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3 MS. BOTCHLET-SMITH: Okay. The

4 next item on the Agenda is Item No. 5D,

5 Appendix E Primary Ambient Air Quality

6 Standards and Appendix F Secondary Ambient

7 Air Quality Standards. And Mr. Leon

8 Ashford will present the staff position on

9 the proposed appendices.

10 MR. LEON ASHFORD: Madame

11 Chairman, the Council, ladies and

12 gentlemen.

13 Staff proposes to update Appendix E

14 Primary Ambient Air Quality Standards and

15 Appendix F Secondary Air Quality Standards

16 to include the eight-hour ozone standard.

17 In both appendices a note will be inserted

18 indicating that the average of the annual

19 fourth highest daily eight-hour maximum

20 over a three year period is not to be at or

21 above this level. The level is 0.085 parts

22 per million.

23 The National Ambient Air Quality

24 Standards or NAAQS specify the maximum

25 acceptable levels of pollutants for outdoor


85

1 air. The Clean Air Act requires EPA to set

2 National Ambient Air Quality Standards for

3 pollutants considered harmful to the

4 public, health, and the environment.

5 National Ambient Air Quality

6 Standards have been established for six

7 primary criteria pollutants. Those

8 pollutants are carbon monoxide, nitrogen

9 dioxide, lead, sulfur dioxide, ozone, and

10 particulates.

11 The Clean Air Act further requires

12 separate standards for human health and for

13 other environmental risks. Accordingly

14 there are two types of National Ambient Air

15 Quality Standards. The primary standards

16 set limits that are protective of human

17 health and the secondary standards protect

18 the welfare and economic reasons.

19 The Department of Environmental

20 Quality as the Oklahoma Agency designated

21 to administer the federal Clean Air Act

22 requirements in Oklahoma is required to

23 draw up a State Implementation Plan that

24 includes measures to achieve acceptable air

25 quality. That is air quality that meets


86

1 the National Ambient Air Quality Standards.

2

3 Comments received from EPA is that

4 this action is appropriate.

5 Staff recommends that the Council

6 forward this action to the Board for

7 permanent adoption.

8 MS. BOTCHLET-SMITH: Questions

9 from the Council.

10 MR. BRANECKY: Leon, you made a

11 statement in your remarks that the standard

12 should not be at or above 0.085?

13 MR. LEON ASHFORD: That's

14 correct.

15 MR. BRANECKY: Is that going to

16 be confusing in the footnote on the

17 standards where it talks about not

18 achieving 0.08? And I understand --

19 MR. LEON ASHFORD: Yes.

20 MR. BRANECKY: -- the difference

21 but will that be -- do we need to make that

22 statement in the footnote to make that

23 clear to somebody who is reading this?

24 Because if we have an ozone alert day and

25 somebody hears that we're at 0.084 and we


87

1 know that's okay but according to this it

2 shows that we are in violation.

3 MR. LEON ASHFORD: The standard

4 says --

5 MR. BRANECKY: Not understanding

6 the rounding --

7 MR. LEON ASHFORD: Right.

8 MR. BRANECKY: -- Is what I'm

9 saying. Do we need to make that more

10 clear?

11 (Inaudible comments)


13 any comments from the public? Further

14 questions from the Council?

15 MS. MYERS: And again, staff

16 recommendation was to adopt.

17 MR. LEON ASHFORD: Yes.

18 MR. TERRILL: Let me mention

19 something here. We inadvertently left out

20 the PM 2.5 standard and we probably won't

21 take this to the Board in November because

22 we want to take both of these -- both the

23 ozone and the PM 2.5 at the same time.

24 David, we'll take a look at your comment

25 and if we need to adjust that we'll do that


88

1 when we bring this rule back with PM 2.5.

2 It could be we may decide not to -- if we

3 don't believe we need to make your

4 correction, and we decide not to bring the

5 2.5 back until it becomes a little bit

6 clearer if EPA is going to review the

7 standard and possibly propose a new one, we

8 may just go ahead and take it without

9 bringing the 2.5 back. But we may bring it

10 back in January. So we'll take a look at

11 that.

12 MR. BRANECKY: If you do

13 anything, I would suggest that the number

14 be left alone in the table but the footnote

15 explain it a little better.

16 MS. MYERS: At this time, staff

17 has recommended that we adopt the rule as

18 written. I'll entertain a motion from the

19 Council.

20 MR. WILSON: Before we do that,

21 did we solicit for comments from the

22 audience?

23 MS. BOTCHLET-SMITH: We did.

24 MR. WILSON: We did. Okay. Then

25 I will move to adopt this.


89

1 MS. MYERS: We have a motion. Do

2 we have a second?

3 MR. TREEMAN: Second.

4 MS. MYERS: Myrna would you call

5 the roll, please?


7 MR. TREEMAN: Yes.


9 MS. ROSE: Yes.








17 DR. LYNCH: Yes.


19 MR. WILSON: Yes.


21 MR. MARTIN: Yes.


23 MS. MYERS: Yes.

24 (End of Item No. 5D)

25


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1

2

3

4

5


7 ITEM NO. 5E

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


91

1 PROCEEDINGS

2

3 MS. BOTCHLET-SMITH: The next

4 item on the Agenda is No. 5E State

5 111(d)/129 Plan for Commercial and

6 Industrial Solid Waste Incinerators. Lisa

7 Donovan will present.

8 MS. LISA DONOVAN: Members of the

9 Council, ladies and gentlemen.

10 EPA published the Emission

11 Guidelines for Commercial and Industrial

12 Solid Waste Incineration or CISWI Units in

13 the Federal Register on December 1, 2000.

14 The Federal Plan covers those emissions

15 sources for which a State or Tribal agency

16 does not have an EPA-approved emissions

17 control plan in effect. EPA published the

18 final rule for Federal Plan Requirements

19 for Commercial and Industrial Solid Waste

20 Incinerators Constructed on or before

21 November 30, 1999, on October 3, 2003. The

22 Federal Plan becomes effective on November

23 3, 2003. The Federal Plan no longer

24 applies when a State Plan is approved.

25 The DEQ has prepared a draft State


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1 111(d)/129 Plan in accordance and

2 compliance with 40 CFR 60, Subpart B, to

3 address air emissions from existing CISWI

4 in the State of Oklahoma. In the interest

5 of saving paper, there are five complete

6 copies of the State Plan available for

7 review today. Copies of the text of the

8 plan and selected appendices are available

9 on the table and were provided in the

10 Council packets.

11 As required under Sections 111(d)

12 and 129, the DEQ has adopted a state rule

13 that implements the provisions of the

14 emissions guidelines and is "at least as

15 protective" as the guidelines promulgated

16 by the EPA. Oklahoma's current CISWI rules

17 were adopted by the Environmental Quality

18 Board on February 28, 2003 and became

19 effective on June 12, 2003.

20 A State Plan must demonstrate the

21 State's legal authority to carry out the

22 provisions of the plan. Section II of the

23 plan does this.

24 The State Plan must include an

25 inventory of the existing Commercial and


93

1 Industrial Solid Waste Incinerators in the

2 State. For the purposes of this Plan, an

3 "existing commercial and industrial solid

4 waste incinerator" is each individual

5 incinerator for which construction was

6 commenced on or before November 30, 1999.

7 Existing CISWI units that are modified or

8 reconstructed on or after June 1, 2001

9 becomes subject to New Source Performance

10 Standards, 40 CFR 60, Subpart quadruple C

11 (CCCC), and cease to be subject to the

12 provisions of this State Plan.

13 The list of existing CISWI units

14 includes seven sources, but is not limited

15 to those listed in the source inventory.

16 Should another source be discovered after

17 the public hearing on the State Plan has

18 been held, there will be no need to reopen

19 the State Plan. The source inventory that

20 I have referred to is provided as Appendix

21 C.

22 A State Plan must also include an

23 inventory of emissions for these

24 facilities. The emissions from six of the

25 CISWI units were estimated using stack-


94

1 sampling results when available or the AP-

2 42 emissions factors for refuse combustors

3 other than municipal waste. None of the

4 units have any add-on air pollution control

5 devices. There was no information

6 available to make an emission estimate on

7 the seventh incinerator, so this facility

8 is not included in the emission inventory.

9 Appendix D contains the emissions

10 inventories for these facilities.

11 A State Plan must also include

12 emission limitations that are at least as

13 protective as those in the federal

14 guidelines. The State Plan has included

15 emission limitations for existing CISWI in

16 the enforceable mechanism, OAC 252:100-17,

17 Part 9 and has incorporated by reference

18 Table 1 of 40 CFR 60 quadruple C (CCCC).

19 The standards mirror the federal guidelines

20 and are neither less nor more stringent.

21 The emission limitations are applicable to

22 all existing CISWI, even those that are not

23 operating unless they are rendered

24 inoperable. A unit is rendered inoperable

25 if its waste charge door is welded shut,


95

1 stack is removed, combustion air blowers

2 are removed, or burners or fuel supply is

3 removed. A unit may be rendered inoperable

4 by other means, but the DEQ will make those

5 determinations on a case-by-case basis.

6 The State Plan must include a

7 compliance schedule, including increments

8 of progress for compliance schedules which

9 extend beyond one year after the State Plan

10 approval. OAC 252:100-17-75(c) includes

11 these schedules and will be applicable to

12 all existing facilities. The State Plan

13 must include testing, monitoring,

14 recordkeeping and reporting requirements.

15 Sections 68, 69, 70, 71, and 72 of

16 Subchapter 17 establish these requirements

17 by incorporating relevant parts of the

18 federal rule.

19 The Plan must also include operator

20 training and qualification requirements, at

21 least as protective as those in federal

22 guidelines. Section 66 of the State rule

23 incorporates the federal requirements by

24 reference.

25 The State Plan must have


96

1 requirements for development of a waste

2 management plan, at least as protective as

3 those in the federal guidelines. These,

4 too, have been incorporated from the

5 federal rule by reference and are included

6 in Section 67.

7 The State Plan must provide a record

8 of public hearings on the Plan. The

9 hearing records for the July 17, 2002,

10 October 16, 2002, and January 15, 2003 Air

11 Quality Council meetings when the state

12 incinerator rule was considered are

13 included in Appendix E. Records from

14 today's hearing will be added when they

15 become available.

16 The State Plan must provide for

17 annual State progress reports. Section 12

18 of the Plan addresses these reports. And

19 the Plan must also establish a due date for

20 Title V permit applications. Title V

21 permit applications for Part 70 sources

22 that are not otherwise a Part 70 source are

23 due by December 1, 2003. This requirement

24 is stated in section 73 of the State rule.

25 The notice for today's hearing was


97

1 published in the Daily Oklahoman on

2 September 8, 2003 and comments were

3 requested from the public. Staff has

4 received no comments from the public. In a

5 letter received October 1, 2003, the EPA

6 stated that the draft plan was found

7 complete and had no additional comments.

8 A few changes to the source

9 inventory have been made since the Plan was

10 posted and the Council packets were made.

11 We have received updated information from

12 several of the facilities and we have made

13 the changes as necessary to the draft Plan.

14 Although Council approval of this

15 Plan is not required because it is not a

16 rulemaking action, staff would like to hear

17 any comments that the Council members and

18 the public may have on the proposed Plan.

19 Thank you.


21 any comments from the Council? Any

22 comments from the public.

23 MS. SYLVIA PRATT: Sylvia Pratt.

24 I just have a question. Looking at the

25 emissions inventory back here compared to


98

1 the Solid Industrial Waste Incinerator

2 source inventory, I noticed there are seven

3 on the source inventory and on the

4 emissions inventory there are only six.

5 The one's for OPUBCO aren't included. I'm

6 just curious if there's a reason for that

7 or --

8 MS. MYERS: I believe Lisa

9 addressed that, if she'll just answer

10 again.

11 MS. LISA DONOVAN: Right. We

12 didn't have the information available, we

13 had information for six but not the

14 seventh.

15 MR. DAWSON LASSETER: I'm Dawson

16 Lasseter, could I add something to that

17 maybe to help answer her question. That

18 last facility that's not listed here, burns

19 waste oil from fleet vehicles and they burn

20 about five hundred gallons a year. So any

21 emissions would be a hundredth of a ton or

22 less of PM. So it's a very small facility.

23 MS. MYERS: Thank you.

24 MS. BOTCHLET-SMITH: Other

25 comments from the public? Comments from


99

1 the Council?

2 MS. MYERS: And as I understand

3 this is an informational presentation only.

4 There is no action required of the Council.

5 And I guess that ends the formal

6 part of our rulemaking process today. Is

7 that correct?

8 MS. BOTCHLET-SMITH: Yes, that's

9 correct.

10 MS. MYERS: At this time, this is

11 the last of the formal rulemaking process

12 for this Council meeting. We would like to

13 take about a ten minute break and then

14 we'll be going into the petition for

15 rulemaking. We have several people who

16 want to speak to the petition for

17 rulemaking and I would ask each of you to

18 limit your comments to five minutes,

19 please. And if there are no further

20 comments at this time, we'll take a ten

21 minute break.

22 (End of Proceedings)

23

24

25


100

1

2 C E R T I F I C A T E

3 STATE OF OKLAHOMA ) ) ss: 4 COUNTY OF OKLAHOMA )

5 I, CHRISTY A. MYERS, Certified

6 Shorthand Reporter in and for the State of

7 Oklahoma, do hereby certify that the above

8 proceedings is the truth, the whole truth,

9 and nothing but the truth; that the

10 foregoing proceedings were tape recorded

11 and thereafter transcribed under my

12 direction; that said proceedings were taken

13 on the 8th day of October, 2003, at

14 Oklahoma City, Oklahoma; and that I am

15 neither attorney for nor relative of any of

16 said parties, nor otherwise interested in

17 said action.

18 IN WITNESS WHEREOF, I have hereunto

19 set my hand and official seal on this, the

20 27th day of October, 2003.

21 ______________________22 CHRISTY A. MYERS, C.S.R. Certificate No. 0031023

24

25

Christy A. Myers

Certified Shorthand Reporter

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