RE: Title V rulemaking - final package

From: Logan Paul S

Sent: Fri May 04 12:22:26 2012

To: WESTBROOK Esther

Subject: RE: Title V rulemaking - final package

Importance: Normal

Good question; short answer is no. I can explain further if you’d like – call me on my mobile at 503.269.6270. But short answer is no.

Thanks for your flexibility. I wish I’d thought of this earlier, but Larry has more experience with SOS and legislative counsel on these types of rulemakings with more than one rule adoption, and can anticipate these problems better for that reason. I think his advice is very sound. Best to spend a little more time now, and save a lot of potential headache later.

Paul

Paul Logan

Oregon Department of Justice, 971.673.1943

From: WESTBROOK Esther [mailto:WESTBROOK.Esther@deq.state.or.us]

Sent: Friday, May 04, 2012 10:15 AM

To: Logan Paul S

Subject: RE: Title V rulemaking - final package

Do we have any issues resulting from changing the approach from what was publicly noticed?

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

Sent: Friday, May 04, 2012 10:04 AM

To: WESTBROOK Esther

Subject: RE: Title V rulemaking - final package

Importance: High

Esther,

I just talked with Larry Knudsen, and he has concerns with this approach. As we’d discussed a few months ago, he has experience with this type of rulemaking, in which one rulemaking proposal ends up with two separate rule adoptions by the EQC. His concern is that the current approach, in which we adopt the 2013 fees but also note that they’re not final, will cause problems and friction with SOS and/or legislative counsel, because it makes it appear like the EQC is adopted unfinished rules, or rules that really aren’t rules. Conceptually, he thinks that SOS and/or legislative counsel might get wrapped around the axle and just kick the rules back. I’d defer to his experience on this, and agree with his that it’s better to make revisions now than to battle with SOS and/or legislative counsel later.

To address Larry’s concerns, we’d suggest not adopting the 2013 fees at the June EQC meeting. That is, we’d suggest not adopting -0030(3), -0040(2), and -0050(2). Instead, we’d adopt those rules in December. As I understand it, there’d be no harm in that, because you wouldn’t be invoicing those fees until 2013 anyway. In place of those rule sections, I’d suggest the following notes.

I’m sorry for the last minute suggested changes, but I think Larry’s right that it’s better to make revisions now than to battle with SOS and/or legislative counsel later. I’m going to be in a meeting until 10:30, but will be available after that if you’d like to talk.

For the annual fee:

NOTE: As indicated in the rulemaking proposed in February 2012, the fee for the period of November 15, 2013 to November 14, 2014, and for each annual period thereafter, will be based on the 2012 increase in the consumer price index and will be adopted by the Environmental Quality Commission in a future rule revision.

For the emission fee:

NOTE: As indicated in the rulemaking proposed in February 2012, the emission fee per ton of each regulated pollutant emitted during calendar year 2012, and for each calendar year thereafter, will be based on the 2012 increase in the consumer price index and will be adopted by the Environmental Quality Commission in a future rule revision.

For special activity fees:

NOTE: As indicated in the rulemaking proposed in February 2012, the specific activity fees for an Oregon Title V Operating Permit program source as of January 1, 2013 will be based on the 2012 increase in the consumer price index and will be adopted by the Environmental Quality Commission in a future rule revision.

Paul Logan

Oregon Department of Justice, 971.673.1943

From: WESTBROOK Esther [mailto:WESTBROOK.Esther@deq.state.or.us]

Sent: Friday, May 04, 2012 9:49 AM

To: Logan Paul S

Subject: RE: Title V rulemaking - final package

I like it.

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

Sent: Friday, May 04, 2012 9:44 AM

To: WESTBROOK Esther

Subject: RE: Title V rulemaking - final package

Esther,

I see where you’re going, though once the June rules are finalized, then it won’t be the “instant” or current rulemaking anymore. Along those same lines, what about “as indicated in the rulemaking proposed in February 2012?” Or March 2012, if that’s when you initiated public notice.

Paul Logan

Oregon Department of Justice, 971.673.1943

From: WESTBROOK Esther [mailto:WESTBROOK.Esther@deq.state.or.us]

Sent: Friday, May 04, 2012 8:51 AM

To: Logan Paul S

Subject: RE: Title V rulemaking - final package

How about “as proposed in the instant rulemaking”?

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

Sent: Thursday, May 03, 2012 8:57 PM

To: WESTBROOK Esther; GINSBURG Andy; THORNBERG Carol

Cc: ROICK Tom; VICK Nicole R.; KNUDSEN Larry

Subject: RE: Title V rulemaking - final package

Thanks Esther. I’d suggest the following additions in underline to the note:

Note: The fee set forth in section (3) of this rule is an estimate based on the 2011 increase in the consumer price index. The final fee will be based on the 2012 increase in the consumer price index. The revised rule incorporating the final fee will be presented to the Environmental Quality Commission for adoption¸ as proposed in the rulemaking.

From: WESTBROOK Esther [mailto:WESTBROOK.Esther@deq.state.or.us]

Sent: Thursday, May 03, 2012 5:30 PM

To: GINSBURG Andy; THORNBERG Carol

Cc: ROICK Tom; VICK Nicole R.; LOGAN Paul S; KNUDSEN Larry

Subject: Title V rulemaking - final package

Andy,

The final rulemaking package documents are attached for your final approval. If you approve, Carol will forward them to the Director’s office. If you have any additional edits, please let me know.

Regarding your question about how to present the 2013 fees in the proposed rule, I felt that it was more transparent to keep the estimates for the 2013 fees than to use the 2012 fees as placeholders. Paul’s advice was that either way is legally sufficient, but we should make clear what EQC process is. The additional explanation included in the notes is intended to help in that regard.

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(3) The Department will assess an annual base fee of $ 7,647 for each source subject to the Oregon Title V Operating Permit program for the period of November 15, 2013 to November 14, 2014, and for each annual period thereafter.

Nicole, Paul and Larry – Please let me know if you have any concerns or comments on the new rule language in Attachment A. This is a new approach for AQ and the commission, so we want to make sure everyone approves.

Thanks to everyone for your help on this rulemaking!

Esther L. Westbrook

Air Quality Policy Analyst

Oregon Department of Environmental Quality

phone: 503-229-6457

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