(2) Except as required by federal law, a program and rules adopted under this section may not require a person in control of an air contamination source to reduce risk associated with toxic air contaminant emissions from that source unless:

(a) The air contamination source is one for which a person is otherwise subject to regulation under ORS 468A.040, 468A.050, 468A.055 or 468A.155 or is subject to the federal operating permit program pursuant to ORS 468A.310; and

(b) Subject to periodic review by the Department of Environmental Quality, the total demonstrated public health risk from toxic air contaminant emissions from the air contamination source exceeds the benchmark for excess lifetime cancer risk or the benchmark for excess noncancer risk.

(3) For purposes of administration by the department of rules adopted under this section, rather than evaluating and regulating the public health risks from toxic air contaminant emissions from an air contamination source based on modeling for the potential to emit toxic air contaminants and land use zoning, a person in control of the air contamination source may elect to have the emissions from the air contamination source evaluated and regulated based on modeling for one or both of the following:

(a) Public health risk due to toxic air contaminant emissions from the air contamination source’s actual production or, for a new or reconstructed air contamination source, the reasonably anticipated actual production by the new or reconstructed air contamination source.

(b)(A) The impacts by toxic air contaminants on locations where people actually live or normally congregate. There is a presumption that people actually live or normally congregate in locations in the manner allowed by the land use zoning for the location, based on the most recent zoning maps available.

(B) A person in control of an air contamination source subject to rules adopted under this section may rebut the presumption in subparagraph (A) of this paragraph by submitting to the department documentation that the department determines is adequate to rebut the presumption. If the department determines that the documentation is adequate to rebut the presumption, the department shall adjust modeling inputs according to the documentation submitted.

(C) Documentation required under this paragraph must be updated annually by the person in control of the air contamination source.

(D) Documentation required under this paragraph may include a request by the person in control of the air contamination source for the department to exclude certain zoned areas from the modeling used for purposes of evaluating the toxic air contaminant emissions from the air contamination source. A request under this subparagraph must be based on documentation that the area to be excluded is not being used in a manner allowed by the land use zoning applicable to the area at the time the modeling is to be performed. If the department grants a request under this subparagraph, the person in control of the air contamination source shall annually submit to the department, as part of the update required under subparagraph (C) of this paragraph, documentation showing that the excluded zoned areas continue to not be used in a manner allowed by the land use zoning applicable to the area.

(4)(a) A person in control of an air contamination source subject to a program and rules adopted under this section may elect to have the public health risks from toxic air contaminant emissions from the air contamination source evaluated using air monitoring, if:

(A) The person submits to the department an air monitoring plan and the department approves the submitted air monitoring plan; and

(B) A modeled risk assessment using methods approved by the department is submitted to the department in advance of the commencement of the final, approved air monitoring plan.

(b) The department shall work with a person in control of an air contamination source to develop public information concerning an approved air monitoring plan and the timeline for the approved air monitoring plan.

(c) The department may not require a person in control of an air contamination source that elects to complete air monitoring under an approved air monitoring plan pursuant to this subsection to, pursuant to a program and rules adopted under this section, reduce public health risk from toxic air contaminants emitted by the air contamination source unless the results of the air monitoring:

(A) Validate the modeling completed pursuant to subsection (3) of this section; or

(B) Otherwise lead the department to reasonably conclude that the public health risks from toxic air contaminants emitted by the air contamination source exceed the benchmark for excess lifetime cancer risk or the benchmark for excess noncancer risk.

(d) Notwithstanding paragraph (c) of this subsection, if the results of the modeling completed pursuant to subsection (3) of this section indicate that the public health risks from toxic air contaminants emitted by the air contamination source exceed four times the benchmark for excess lifetime cancer risk or four times the benchmark for excess noncancer risk, a person in control of an air contamination source may not, pending completion of the approved air monitoring plan, delay implementation of any public health risk reduction measures that are required by the department pursuant to a program and rules adopted under this section.

(5)(a) Except as required under ORS 468.115, 468.936, 468.939, 468.951 or 468.996, or federal law, the department may not, pursuant to a program and rules adopted under this section, require an existing air contamination source that employs toxics best available control technology on all significant emission units to undertake additional measures to limit or reduce toxic air contaminant emissions.

(b) Notwithstanding paragraph (a) of this subsection and subsection (6)(d) of this section, the department may require an existing air contamination source that employs toxics best available control technology on all significant emission units to undertake additional measures to limit or reduce toxic air contaminant emissions if the public health risks from toxic air contaminants emitted by the air contamination source are greater than four times the benchmark for excess lifetime cancer risk or are greater than two times the benchmark for excess noncancer risk.

(6)(a) Toxics best available control technology described in subsection (5) of this section must be a toxic air contaminant emissions limitation or emissions control measure or measures based on the maximum degree of reduction of toxic air contaminants that is feasible, determined for each air contamination source on a case-by-case basis, taking into consideration:

(A) What has been achieved in practice for:

(i) Air contamination sources in the same class as the air contamination source to which the toxic air contaminant emissions limitation or control measure will apply, as classified under ORS 468A.050; or

(ii) Processes or emissions similar to the processes or emissions of the air contamination source;

(B) Energy and health or environmental impacts not related to air quality; and

(C) Economic impacts and cost-effectiveness, including the costs of changing existing processes or equipment or adding equipment or controls to existing processes and equipment.

(b) Toxics best available control technology may be based on a design standard, equipment standard, work practice standard or other operational standard, or a combination thereof.

(c) In assessing the cost-effectiveness of any measure for purposes of determining toxics best available control technology for an air contamination source, the department must assess only the economic impacts and benefits associated with controlling toxic air contaminants.

(d) For an air contamination source that exists as of the date that a program and rules adopted under this section first become effective, compliance with emission control requirements, work practices or limitations established by a major source National Emission Standard for Hazardous Air Pollutants adopted by the United States Environmental Protection Agency after 1993 is deemed to be toxics best available control technology, provided that:

(A) The emission control requirements, work practices or limitations result in an actual reduction to the emissions of the hazardous air pollutants regulated under the National Emission Standard for Hazardous Air Pollutants; and

(B) There are no other toxic air contaminants emitted by the air contamination source that:

(i) Are regulated under a program and rules adopted by the Environmental Quality Commission pursuant to subsection (1) of this section;

(ii) Are not controlled by the emission control requirements, work practices or limitations established by a major source National Emission Standard for Hazardous Air Pollutants; and

(iii) Materially contribute to public health risks. [2018 c.102 §3]