Division 11 Rulemaking Presentation to the EQC

Chairwoman Hampton, Commissioners

For the record my name is Larry McAllister. I am the Agency Rules Coordinator.

The proposed amendments of this rulemaking affect two rules within Division 11 of the department’s administrative rules. Since these rules within Div 11 regulate the department’s rulemaking procedures, today’s proposed amendments only impact the department’s rulemaking process.

The combined amendments will improve the department’s disclosure process. They will allow, under specific circumstances, an opportunity for Title V stakeholders to a hearing before the EQC. And then finally, the amendments will require a minimal level of additional public noticing.

These amendments are necessary to align the two rules in Division 11 with statutory changes made by the 2007 legislature.

A little background may be useful.

I intend to explain the Department’s disclosure process, followed by a very brief description of our noticing procedures during rulemaking – and how both these processes will be modified as a result of today’s proposed amendments.

As a side note, I will refer to the department’s “Title V permit program.” As you know, Title V of the federal Clean Air Act requires that each major industrial source of air pollution obtain and comply with an operating permit. The Title V program was the focus of the statutory changes.

Ok…Within Division 11, the two rules being amended are rule # 0029 and #0010.

Rule # 0029 defines the department’s procedures for disclosing the relationship between proposed rules and applicable federal requirements. This disclosure process serves stakeholders by informing them when a proposed rule may “differ” from applicable federal requirements. The Commission established this disclosure policy for rulemaking in 1994.

The current Disclosure process requires the Department’s rule writers to complete a form containing 11 question intended to disclose the relationship between propose rule and federal requirements and reveal any potential justification for any differences (hand out #1). Once completed this document is made available to the public/stakeholders.

Today’s proposed amendments will modify rule # 0029 in a couple important ways. The content of the disclosure information is being improved by eliminating many of questions (going from 11 to 3) while allowing the Department to provide broader and more pertinent information about why a rule may be “different from” or “in addition to” applicable federal requirements. (handout #2). The new format also requires rule writers to describe what alternatives rulemakings were considered and the reasons why those alternatives were not pursued.

The Department expects the new disclosure process will provide a better understanding of the relationship between a proposed rule and applicable federal requirements without adding significantly to the Department’s workload.

Today’s amendments will also insert an additional component into rule #0029 unrelated to disclosure. The amendments will (under specific circumstances) grant a hearing before you, the Commission, for parties impacted by proposed rules affecting the Title V permit program. When requested, these hearings would be an additional opportunity to comment to the Commission but are only required to be granted under the following conditions:

•  the proposed rulemaking only applies to the Title V permit program

•  the request for a hearing is received within 14 days of the rule being “noticed”

•  the request comes from 10 or more persons or an association with at least 10 members

•  those requesting the hearing describe how they will be directly harmed by the proposed rule

This opportunity for a hearing before the Commission is not available if the rulemaking already has a scheduled hearing before the EQC.

The remaining amendment in Division 11 is rule # 0010. This rule defines the procedures the Department must implement when notifying (noticing) the public of a proposed rule.

Changes to rule #0010 are minor and are only necessary to accommodate noticing the Commission hearings granted under the new requirements of rule 0029.

So again in summary, today’s combined amendments will improve the department’s disclosure process. They will allow, under specific circumstances, an opportunity for Title V stakeholders to a hearing before the EQC. And then finally, the amendments will require a minimal level of additional public noticing.

I want to clarify that not all of today’s amendments will affect all department rulemakings. The statutory changes made by the legislature only apply to rulemakings associated with the department’s Title V permit program. However, because the department’s disclosure and noticing procedures are agency wide the department is recommending that these amendments associated with disclosure and noticing apply to all department rulemakings.

For the amendments to rule 0029 that will allow new hearings before the Commission; the department recommends the granting of such hearings apply only to rulemakings related to the Title V permit program. Its felt that limiting this new opportunity for hearings to Title V allows the department to track the costs and benefits before expanding this procedure to all rulemakings.

Before closing I want to touch briefly on an issue presented by a commenter. The comment regarded the new opportunity for a hearing before the Commission granted to stakeholders who might be “directly harmed” by proposed rules related to the Title V permit program.

The commenter noted that it would be relatively easy for a Title V facility to describe how a proposed rule might impact its operating costs, but it could be difficult for the public to define direct harm. The commenter felt the proposed language created a barrier to public involvement by restricting who might be eligible to request a hearing before the EQC.

This new opportunity for a hearing before the Commission is only one of several avenues for the public to comment, and in no way imposes a barrier to the public to demonstrate harm before commenting on a rule.

DEQ always holds public hearings and the comments from those hearings are always summarized and included in your meeting packets. Comments are, of course, also accepted by email and regular mail throughout the rule’s public comment period. Additionally, the public can (during the public comment period) provide comment during the public forum at each Commission meeting.

Under these new provisions for the Title V permit program, when a Commission hearing is granted, anyone, regardless of who requested the hearing, could provide comments.

Finally, the AQ division, when feasible and appropriate will schedule hearings before the Commission on proposal when the rulemaking is deemed to be controversial or of particular interest to the public, or requested by the regulated community or the public.

The Department will reevaluate this process after its impacts are better understood and determine if this opportunity should be expanded.

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That concludes my presentation and I am available to answer your questions.