Option | Risk | Consequence | Likelihood of risk occurring (0-100%) | Severity of impact (1= low, to 5= high) | Mitigation |
Submit i-SIP to EPA with crosswalks as-is | Adverse comments (RE: rules incorrectly identified as in or out of SIP) | Loss of credibility (if DEQ publishes crosswalks with known errors and a disclaimer) | Medium (40-60%) | 2 (could generate additional comments during public notice period, need to correct errors in crosswalks) | Address comments during public notice period and make necessary corrections in final draft SIP submittal packet (e.g. crosswalk corrections). |
Lawsuit against DEQ | Can respond to lawsuit and point to Federal Register for rules in SIP (if suit focused on SIP notes) | Low (~20-30%) | 1 (legal impact of risk is low, but response to litigation may consume resources unnecessarily) | Identify OARs in, make necessary corrections to crosswalks prior to completion of SIP rulemaking | |
Loss of credibility | Loss of public’s trust/respect | High (>90%) | 4 (DOJ legal counsel indicates would need to disclose known errors in crosswalks; questions order of operations) | Identify OARs in SIP, make necessary corrections to crosswalks prior to completion of bundled Infrastructure SIP rulemaking and submittal to EPA | |
Correct SIP Notes in OARs and revise crosswalks before submitting i-SIP to EPA | Delayed submittal (Dec. 2013 EQC adoption instead of Oct. 2013) | Postponement of i-SIP submittals ( Deadlines below) • NO2 (1/ 22/13) • SO2 (5/3/13) • Pb (10/15/11*) *FOFS 2/15/13; EPA must approve SIP or finalize ad FIP by 2/15/15. | Low (~0-20%)
| 1 (i-SIP submittals currently overdue, no action expected from environmental groups for at least 6 months after deadline; likely send EPA a notice of intent to sue at that time. DOJ legal counsel indicates EPA will not apply sanctions except in Nonattainment areas)
| DOJ legal counsel suggests fixing SIP notes and crosswalks prior to EPA submittal and public noticing. |
Process of correcting SIP notes in OARs could take more time than expected | Could push rulemaking schedule out past Dec. ’13 EQC adoption date | Low (0-20%) | 4 (EPA would be in legal jeopardy of being sued if SIP deadlines for NO2 and SO2 not met. Risk to DEQ is more reputational than legal.) | Work w/ EPA, DOJ paralegal to produce list of OARs in SIP. Revise crosswalks based on list of SIP rules developed by DEQ/EPA/DOJ. |
STAFF RECOMMENDATION: Reschedule rule adoption for December 2013 EQC meeting in order to work with DOJ and EPA to develop a current list of Oregon Administrative Rules that are contained in the SIP. Use developed list of OARs included in SIP to make corrections to Pb, NO2 and SO2 infrastructure SIP crosswalks. Present corrected crosswalks with infrastructure SIP submittal packet to EQC for adoption December 2013, and to EPA as soon as possible after filing with Secretary of State (target date Jan. 2014).