Why this is Important

The proposed amendments to rules within Division 11 are needed to align those rules with statutory changes made by Senate Bill 107, Section 3 during the 2007 legislative session.

Department Recommendation / EQC Motion

The Department recommends that the Environmental Quality Commission (EQC) adopt the proposed amendments to OAR 340-011-0010 and -0029 (as presented in Attachment A) to ensure the Department accurately implements the language and intention of Section 3 of Senate Bill 107 enacted by the 2007 legislature.

Background and Need for Rulemaking

The pertinent rules in Division 11 provide direction to the Department of Environmental Quality’s (Department’s) rulemaking process. The result of this rulemaking will modify a portion of the Department’s own rulemaking procedures.

The changes to Division 11 rules are a reflection of language in Section 3 of Senate Bill 107. The statute language was crafted by Associated Oregon Industries in conjunction with the Department, at a time the Department’s Air Quality program was promoting fee increases to its Title V permit program (Title V of the federal Clean Air Act requires that each major industrial source of air pollution obtain and comply with an operating permit).

These proposed rule revisions modify the Department’s procedure for disclosing the relationship between future proposed rulemakings and applicable federal requirements. The changes are intended to both streamline the Department’s disclosure process and ensure the regulated community knows what alternatives were considered by the Department when proposing a rule that is “different from or in addition to” federal requirements.

These amendments also afford individuals, associations and businesses the opportunity to request and participate in hearings before the EQC when revisions are proposed to rules that apply to facilities regulated by the Department’s Title V permit program.

This rulemaking is needed to align the rules within Division 11 with Senate Bill 107 Section 3. It is important that these rule revisions are completed before the Department revises the Title V rules scheduled for mid-2008.

Effect of Rule

This rulemaking will primarily affect the Department’s rulemaking procedure. Specifically, this rulemaking amends OAR 340-011-0029 to modify the Department’s disclosure procedures and allows stakeholders an additional opportunity for a hearing before the EQC. OAR 340-011-0010 will be amended to include additional public noticing procedures required by -0029. The proposed rule revisions are procedural only and will not affect Oregon’s environmental quality directly.

Disclosure procedure:

Every rulemaking effort by the Department includes disclosing the relationship between the proposed rule and any applicable federal requirements. The intent of this disclosure is to identify and justify when a proposed rule might be more “stringent” than federal regulations.

To date, the Department has accomplished this disclosure during rulemaking by completing a lengthy form that consists of several questions. Collectively these questions are intended to explain why a proposed rule’s requirements may need to differ from federal requirements.

The proposed amendment to OAR 340-011-0029(1)(a) (see Attachment A, page 2) removes Table 1 (“the disclosure statement”) from the rule and indicates the new content of the Department’s disclosure statement. The new disclosure statement is now required to explain whether the proposed rule’s intended action imposes requirements “different from, or in addition to” applicable federal requirements. Essentially, the disclosure statement has been streamlined from consisting of nearly a dozen questions, to three questions. The revised document containing the disclosure statement will be removed from rule and requires the Department to disclose:

1) If the intended action impose actions different from or in addition to federal requirements;

2) If yes, the reason(s) why the actions are different from or in addition to federal requirements; and

3) Identify of any alternatives considered and the reasons those alternatives were not pursued.

The Department anticipates the new disclosure document and process will provide a better understanding of the proposed rule’s relationship with applicable federal requirements.

Opportunity for hearing before the EQC:

The proposed revisions to OAR 340-011-0029(3) (see Attachment A, page 3) add the criteria for granting a hearing before the EQC for those anticipating being directly harmed by rule changes to the Title V permit program.

Such a hearing will be granted if the following criteria are met:

a) the proposed rulemaking applies to a source subject to Title V permits;

b) a request for a hearing is received by the Department within 14 days of public notice from 10 persons or an association with at least 10 members; and

c) the request describes how the persons are directly harmed by the proposed rulemaking.

This opportunity to request a hearing before the EQC is not available if the rulemaking notice already has a public hearing scheduled before the EQC.

The effect of these amendments will allow stakeholders, who feel they will be harmed by rules affecting Title V permit program, an additional opportunity to discuss the proposed rules before the EQC.

Noticing procedure during rulemaking:

Revisions to OAR 340-011-0010 (see Attachment A, page 1) will modify the Department’s procedure for noticing the public. These minor revisions are necessary to accommodate additional noticing requirements, when necessary, for those requested public hearings granted before the EQC (requested by those indicating they are being harmed by proposed rules to the Title V permit program).

Senate Bill 107 Section 3 only requires the above amendments for rulemakings that apply to the Department’s Title V program. The Department has chosen to incorporate the noticing and disclosure requirements for all agency rulemakings to avoid any confusion within the Department’s rulemaking process and to promote full public disclosure for all Department rulemakings.

Commission Authority

The Commission has authority to take this action under Oregon Revised Statutes 468.020 and 468A.025

Stakeholder Involvement

The Department worked closely with stakeholders (primarily Associated Oregon Industries) during the legislative session in crafting the applicable portions of Senate Bill 107 that are reflected in these rule revisions. Prior to going out for public comment, the draft rules and a request for feedback were submitted to both Associated Oregon Industries and the Northwest Environmental Defense Center. Neither office commented on those draft rules.

The Department did not solicit input from an Advisory Committee since this rulemaking is in response to legislative action and did not address any policy issues.

Public Comment

A public comment period was open from September 14, 2007 through October 26, 2007. Evening public hearings were held in Bend, Eugene and Portland in mid-October. One written public comment was received. Attachment B provides a summary of that comment.

Key Issues

A potential concern is whether any party who anticipates being harmed by revisions to Title V rules is eligible to request a hearing before the EQC. As written, does the proposed rule (which reflects the language in Senate Bill 107) restrict who is eligible to request such a hearing before the EQC?

This concern has been voiced both internally and by the public. The rule requires those requesting a hearing to describe how they are being “directly harmed” by the proposed rule. It would be reasonable for a facility permitted and operating with the Title V program to describe how a rule will impact its operating costs; it will be more difficult for the public to define that direct harm.

It is anticipated that any reasonable request for a hearing from this rule would be considered by EQC. It is also expected that anytime the Department proposes rules for the Title V program, a public hearing will be scheduled before the EQC so that all parties can discuss their concerns.

Next Steps

If the EQC adopts the proposed rules, the Department will submit the rules to the Secretary of State to become effective before the end of February 2008.

Current rule writers will be informed of the necessary changes in both rulemaking documents and procedures, including a review of upcoming Title V rulemaking efforts. The changes in rulemaking procedures will be reflected in the Department’s rulemaking instructions. No additional resources will be needed to implement these changes.

Attachments

A.  Proposed Rule Revisions (redlined version)

B.  Summary of Public Comments and Agency Responses

C.  Presiding Officer’s Report on Public Hearings

D.  Relationship to Federal Requirements document

E.  Statement of Need and Fiscal and Economic Impact

F.  Land Use Evaluation Statement

Available Upon Request

1.  New Relationship to Federal Requirements (disclosure) form

2.  Proposed Rulemaking Announcement

3.  Legal Notice of Hearing

4.  Written Comment Received