question about EQC quorum

From: MCALLISTER Larry [Larry.Mcallister@state.or.us]

Sent: Friday, June 22, 2007 4:27 PM

To: Logan Paul S; MCALLISTER Larry

Cc: Knudsen Larry

Subject: RE: SB 107 notice requirements

thanks Paul for the additional feedback

You made a comment that got me thinking. The new statute will pertain to/apply to any facility required to pay Title V fees. That could be a much broader number of rulemakings than simply rules pertaining to Title V fees. I don't know what range of facility types that pay Title V fees, but I will need to get some sense about other DEQ rules that may also impact these Title V facilities. That is somewhat disappointing.

Regarding the scheduling of these hearings...The actual date of notice is the day that DEQ sends out notice to interested parties by either mail or email. That is why we have a form that certifies when that mailing goes out. We actually start counting the days of the comment period from the date of the certification. Almost always, the mailing goes out before the Bulletin is published.

Regardless, I agree with you that the language in SB 107, section 3(3)(a) regarding the timing of the hearing, references 183.335(1) which among other timeframes, points to the noticing in the Bulletin - so we would be at the end of the month before we could set a hearing - at the earliest.

In the above scenario, we would just have to step back from the expected rulemaking schedule and plug into the EQC schedule as soon as possible. This no doubt would delay the rulemaking. But less risky than not having a quorum.

Larry M.

-----Original Message-----

From: Logan Paul S [mailto:paul.s.logan@doj.state.or.us]

Sent: Friday, June 22, 2007 2:13 PM

To: MCALLISTER Larry

Cc: Knudsen Larry

Subject: RE: SB 107 notice requirements

Larry,

I think you're right that for possibly contentious rulemakings, you'd want to schedule a hearing in advance pursuant to Section 3 (5) of the bill. But at the same time, you're also right that at some point there will be hearing request that DEQ didn't plan on. And remember that the statement regarding applicable federal requirements and the EQC hearing both apply broadly to the adoption, amendment or repeal of any rule that applies to any Title V facility. Thus these requirements don't apply to rules that address Title V only, but rather to any rule that applies to a Title V facility.

As the rulemaking notice in the SOS bulletin is published on the first of the month, a group has until the 15th to request a hearing. The EQC must give notice of the hearing at least 14 days before the hearing, so the earliest hearing would be on the 29th of that month. That would be a fast turnaround on notice. If the regularly scheduled EQC meeting were before the 29th of that month, then you'd have to either wait two months for the next regularly scheduled EQC meeting, or schedule a special hearing. This year, all EQC meetings fall before the 29th. Therefore, if you were trying to plan rulemakings to avoid a surprise hearing problem, you'd want to publish notice on the 1st of the month preceding the next month's EQC meeting. That might be difficult or objectionable for a number of reasons, but it would help minimze the problems of surprise hearing requests.

I realize this is going to be a difficult scheduling issue. You could always accept the risk of holding the hearing in front of less than a quorum, but in my mind there is a legal risk. Let's see what Larry K. has to add.

Paul

Paul Logan

Oregon Department of Justice

971.673.1943

-----Original Message-----

From: MCALLISTER Larry

Sent: Friday, June 22, 2007 12:52 PM

To: Logan Paul S; MCALLISTER Larry

Cc: Knudsen Larry

Subject: RE: SB 107 notice requirements

Thanks Paul for the feedback.

From my perspective as the rules guy - it is the scheduling of such hearings that may be challenging. Obviously, with Title V rulemakings that are likely to trigger this hearing, we will want to incorporate a hearing in front of the Commission from the get go to avoid having to arrange a Commission hearing on the fly.

But at some time we may be surprised by a request for a hearing, and then either have to negotiate a hearing in front of less than a quorum or delay the rulemaking until the Commission schedule can accommodate the additional hearing.

I understand yesterday's EQC meeting went until 7pm, and then of course is continuing today. I don't expect we will hear back from Mr.. Knudsen until early next week.

Thanks Paul,

Larry

-----Original Message-----

From: Logan Paul S [mailto:paul.s.logan@doj.state.or.us]

Sent: Friday, June 22, 2007 12:20 PM

To: MCALLISTER Larry

Cc: Knudsen Larry

Subject: RE: SB 107 notice requirements

Larry,

Very good question. I'm copying Larry K. on this response because he advises the EQC and needs to be apprised of EQC related advice. Larry K., please let us know if you have anything to add.

The statute of course doesn't answer the question explicitly, but I think the hearing needs to be in front of the entire EQC or a quorum. It'd be unreasonable to demand that the entire EQC must be present for the hearing, given that the statute doesn't say that, and because the EQC commonly conducts its business with a quorum and less than all members present. This is reinforced by the fact that DEQ statutes direct the EQC to do a number of things in statute, such as adopt rules, and although the statutes don't explicitly state that the EQC can do so by a quorum, that's common practice.

On the other hand, there'd be risk to holding the hearing in front of less than a quorum, since the statute refers to the EQC and not members of the EQC. Additionally, the purpose of the statute is to give affected parties the opportunity to educate the EQC about the effects of the rule before adoption/amendment/repeal, and if less than a quorum receive this information, those members by themselves might not be able tochange the EQC's intended actions based upon the information they received. In other words, if only one member gets the information, he or she can't vote to change the intended action by himself or herself. Two would work if only a quorum of three members is present to conduct EQC business, but not enough if four or five members are present.

But if you want to hold a hearing in front of less than a quorum, then as a practical matter, you could negotiate it with any particular group that requests a hearing. For example, if the next regularly scheduled EQC meeting would be in an inconvenient place for the group to travel to, or at an inconvenient time, then you could ask them to agree to a hearing in front of less than all EQC members that is more convenient, with the understanding that the members present would share the information with the entire commission. You'd essentially be asking them to waive their right to a hearing in front of a quorum. This practical solution might well be the best answer.

Paul

Paul Logan

Oregon Department of Justice

971.673.1943

-----Original Message-----

From: MCALLISTER Larry

Sent: Thursday, June 21, 2007 12:51 PM

To: Logan Paul S

Subject: FW: SB 107 notice requirements

Hi Paul

A question about the language in SB107 (attached) came up this morning.

When a hearing is requested according to section 3(3) is there any way that hearing could be in front of 1 or 2 members of the EQC rather than the full Commission? Just wondering, thinking that would give the process a little leeway related to scheduling those hearings. Or is the language's intent pretty clear that such a requested hearing would be in front of a quorum of the commission?

Your thoughts?

Larry

503 229-6412

-----Original Message-----

From: GINSBURG Andy [mailto:Andy.Ginsburg@state.or.us]

Sent: Monday, June 18, 2007 7:00 PM

To: MCALLISTER Larry; Logan Paul S

Cc: GINSBURG Andy

Subject: SB 107 notice requirements

Larry and Paul,

Attached is a first draft of rule amendments to implement Section 3 of SB 107. I also included a revision to the existing form for differing from federal requirements to incorporate the changes and simplify the form. I took most of the detail out of the form and moved it to the instructions.

Larry, this is a starting point for our meeting with the team on 6/26. Can you send it to them along with background information about what we are doing before the meeting? Remember, we want all of the rule coordinators and some rulewriters from various programs who have experience with the existing form.

Paul, could you look at the rule compared to the statute and make sure it does the trick? You'll get another look at it later, but at least let us know if you see any major problems with the way I've structured it.

Thanks.

Andy

Andy Ginsburg

Air Quality Administrator

Oregon Department of Environmental Quality

ginsburg.andy@deq.state.or.us

503/229-5397

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