From: BARROWS Bob
Sent: Fri Aug 24 09:14:57 2012
To: BARROWS Bob; FULLER Brian; LUMPER Bruce; NUTTALL Christie; PICKERELL Loretta; RAWSON Stephanie; RHOADES Cathie; SPENDELOW Peter H; VANDEHEY Maggie
Subject: FW: authority to change statutory definition in rule
Importance: Normal
Okay gang,
Here’s Gary Vrooman’s reply to this question. I may have worded my question to Gary a little awkwardly but I think his response answers the intent of the question. Is this sufficient to answer the question internally and externally? bb
Bob Barrows | Waste Policy Coordinator
Dept. of Environmental Quality
165 E. 7th Ave., Eugene, OR 97401 | barrows.bob@deq.state.or.us
( 541.687.7354 | 800.844.8467 x7354 (in Oregon)
From: Vrooman Gary L [mailto:Gary.L.Vrooman@doj.state.or.us]
Sent: Friday, August 24, 2012 9:09 AM
To: BARROWS Bob
Subject: RE: authority to change statutory definition in rule
Hi Bob,
I don’t think DEQ can “change the statutory definition” in the sense that DEQ can’t make it mean something it doesn’t already mean. In general, agencies have authority to interpret statutory terms that are ambiguous or incomplete or refine a statutory term within the existing bounds of its meaning. I think DEQ is appropriately doing the latter by adding “conversion technology facilities” to the list of disposal types of disposal sites.
I think the meaning of the term disposal site is bound by the statutory language “land and facilities used for the disposal, handling or transfer of, or energy recovery, material recovery and recycling from solid wastes.” To be a disposal site a facility must be used for disposal, handling, transfer etc… of solid waste. The statute then gives a non-exclusive (“including but not limited to”) list of examples. I would say the statutory scheme anticipates that DEQ might add to or refine that list, as appropriate, as different types of disposal sites might require different regulatory consideration and different impacts on human health and the environment. I think the key to DEQ’s authority is whether the facility is “used for the disposal, handling or transfer of, or energy recovery, material recovery and recycling from solid wastes.” If it is then it’s a disposal site and DEQ has authority to regulate it as appropriate. Part of that is determining what is appropriate for different types of disposal sites. As new types of disposal sites come on line that present different regulatory concerns, it only makes sense that DEQ might make a new category to address those concerns.
I sum, generally speaking, I think conversion technology facilities already were disposal sites under the existing statutory definition. So DEQ has not changes the statutory definition by including them. I think DEQ has the authority to recognize them as a separate type of disposal sites in rule.
Does that make sense and answer your question?
Gary
From: BARROWS Bob [mailto:BARROWS.Bob@deq.state.or.us]
Sent: Thursday, August 23, 2012 4:34 PM
To: VROOMAN Gary L
Cc: BARROWS Bob
Subject: authority to change statutory definition in rule
Hi Gary,
I’ve been tasked to ask you this question. What is DEQ’s authority generally or specifically to change a definition found in statute while making a rule change. Example: We are proposing to change the statutory definition of disposal site by adding the words “conversion technology”.
ORS 459.005
(8)(a) “Disposal site” means land and facilities used for the disposal, handling or transfer of, or energy recovery, material recovery and recycling from solid wastes, including but not limited to dumps, landfills, sludge lagoons, sludge treatment facilities, disposal sites for septic tank pumping or cesspool cleaning service, transfer stations, energy recovery facilities, incinerators for solid waste delivered by the public or by a collection service, composting plants and land and facilities previously used for solid waste disposal at a land disposal site.
(b) “Disposal site” does not include:
(A) A facility authorized by a permit issued under ORS 466.005 to 466.385 to store, treat or dispose of both hazardous waste and solid waste;
(B) A facility subject to the permit requirements of ORS 468B.050 or 468B.053;
(C) A site used by the owner or person in control of the premises to dispose of soil, rock, concrete or other similar nondecomposable material, unless the site is used by the public either directly or through a collection service; or
(D) A site operated by a dismantler issued a certificate under ORS 822.110.
Proposed rule change in the conversion technology rulemaking:
(34) "Disposal Site" means land and facilities used for the disposal, handling, treatment or transfer of or energy recovery, material recovery and recycling from solid wastes, including but not limited to dumps, landfills, sludge lagoons, sludge treatment facilities, disposal sites for septic tank pumping or cesspool cleaning service, land application units (except as exempted by subsection (81)(b) of this rule), transfer stations, energy recovery facilities, conversion technology facilities, incinerators for solid waste delivered by the public or by a collection service, composting facilities and land and facilities previously used for solid waste disposal at a land disposal site; but the term does not include a facility authorized by a permit issued under ORS 466.005 to 466.385 to store, treat or dispose of both hazardous waste and solid waste; a facility subject to the permit requirements of ORS 468B.050; a site that is used by the owner or person in control of the premises to dispose of soil, rock, concrete or other similar non-decomposable material, unless the site is used by the public either directly or through a collection service; or a site operated by a wrecker issued a certificate under ORS 822.110.
Hmm, now that I look at the proposed rule change language I notice the statutory definition has already been changed.
Thanks for your response. Contact me if you have questions. bb
Bob Barrows | Waste Policy Coordinator
Dept. of Environmental Quality
165 E. 7th Ave., Eugene, OR 97401 | barrows.bob@deq.state.or.us
( 541.687.7354 | 800.844.8467 x7354 (in Oregon)
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