From: Merrie Dinteman [dinteman@lrapa.org] Sent: Monday, December 10, 2007 4:30 PM To: MCALLISTER Larry Subject: FW: state notice of rule changes Larry--here's the info I sent to Brian last week. He called after I sent this, and we talked about it some more at that time. I think I have things worked out with Steve Mabry at the Secretary of State's office now. I spoke with him this afternoon, and he seemed a lot more receptive than he was a few months ago when I first broached this subject with him. I think maybe someone from DEQ talked to him recently, or something. -----Original Message----- From: Merrie Dinteman Sent: Tuesday, December 04, 2007 2:24 PM To: 'FINNERAN Brian'; Ralph Johnston Cc: Merlyn Hough Subject: RE: state notice of rule changes Brian: We did put our open burning rules into the SIP about a decade ago, at David Nordberg's urging. Prior to that time, it was just a local rule. I think the idea to put it into the SIP came about because part of our PM10 attainment relied on control of open burning. Our process isn't actually concurrent rulemaking. It's a concurrent hearing. When we adopt a rule or amend an existing rule that will affect the SIP, we include in the public notices the phrase that this rule, if adopted, will result in a change to Oregon's SIP. The notice that gets published in the Oregon Bulletin includes a section that tells what documents you relied on in developing the proposed action and what rules will be affected by its adoption. We always put in that section the LRAPA rules that will be affected, as well as the OAR 340 section that refers to the Oregon SIP. At the beginning of our process we send a draft of the proposal to DEQ and one to EPA. The DEQ submittal includes a request that DEQ delegate LRAPA as the EQC hearings officer so that our hearing is a concurrent EQC/LRAPA hearing. Once we get that delegation, we schedule our hearing and publish the notice. We then have our hearing and then forward the necessary information to DEQ, along with a hearings officer's report, for DEQ to submit to EQC for their adoption. Then DEQ forwards the information to EPA Region 10 with a request to process it as an amendment to the SIP. I get a copy of the cover letter that DEQ sends to EPA and, eventually (from EPA), a copy of the Federal Register page stating that the rules have been included by EPA as a SIP amendment. We've been doing this for quite a few years now, and never had any problems with it until I called the Secretary of State's office earlier this year to see if anything in their process had changed since the last time we did a formal rulemaking that affected the SIP (over five years ago). I spoke with Steve Mabry, and I couldn't seem to get the process across to him. He kept insisting that LRAPA can't change the OAR section and didn't seem to understand that LRAPA doesn't change that. DEQ changes it by taking the proposal through EQC. The hearing notices and the staff reports indicate, all through the process, that the SIP will be changed if the proposed rulemaking is adopted. Mabry said the problem with that is that his office needs to codify the OAR 340 section for the SIP to include the date EQC adopted the change to the SIP. He said he needs to have that date before he can publish the notice. That has never been required before, and it makes it really difficult for us because we don't know at the time the Bulletin notice is published whether our board will actually adopt the rule on the date of the hearing, much less when the LRAPA-adopted rule might get to the EQC. Our SIP rulemaking process differs further from DEQ's in that the actual proposed rule never goes to the Secretary of State's office, nor does the adopted rule. All they're interested in is the fact that the rulemaking changes the SIP, and all they've ever wanted from us is the notice to be published and the staff report that includes the statement of need, the state of fiscal and economic impact, and the land use compatibility statement. They do not codify our rules, but they do codify yours. We send them nothing after our rules have been adopted, whereas DEQ sends its finished rule package to them for codification, and they include the dates of the changes as part of that codification. I asked Mabry if it would suffice to just send him a notice after the EQC adoption to give him the date and the proper citation for codification. He wasn't crazy about that idea. So that's kind of where we are with this. The process of concurrent hearing started when Don Arkell was still here, and it has worked to keep DEQ staff from having to go through the whole rule process to adopt our local rules into the SIP, and to help our rules move through DEQ and EQC more quickly on their way to EPA. I'd like to preserve the process. What would you suggest we do? Who would be the best person at DEQ to talk to about this? And do we need to double-team Steve Mabry or someone else at SOS to get this settled to the satisfaction of all three agencies? Merrie -----Original Message----- From: FINNERAN Brian [mailto:FINNERAN.Brian@deq.state.or.us] Sent: Tuesday, December 04, 2007 10:03 AM To: Merrie Dinteman; Ralph Johnston Cc: Merlyn Hough Subject: RE: state notice of rule changes Did someone say more work for DEQ? Now that got my attention! Seriously, I'm not the one Ralph should be quoting. I'm not the rules coordinator. But since I've been around longer than most dinosaurs, here's my recollection. As Merrie describes, if it's a LRAPA rule or action that affects our SIP, like a NAAQS standard, then it goes thru the EQC. However, I can't recall if it was always concurrent rulemaking with us. Seems to me that only happenned if we were adopting a new standard, and wanted YOU to do the same, at the same time. Otherwise, I recall instances where LRAPA adopts something, and then we adopt it later, as part of some other rulemaking we happen to be doing. As far as the rule change Ralph is doing on LRAPA OB rules, I don't think it a SIP change. I could see DEQ waiting for some time before we get around to revising our OB rules in the section on Lane County burning requirements. Anyway, what I'm saying here is two things. One, I would not change ANYTHING from what has been standard practice in the past. Two, as far as notice with the SOS, that is a requirement DEQ. Don't know if LRAPA is required to or not. What I told Ralph is you might just want to do it anyway, as in better-to-be-safe-than-sorry. But you should check if you are legally required to. Hypothetically speaking, let's say someone lives just across the Lane/Benton County border. They might want to know (and comment) on some AQ rule youre adopting that could affect their health or air quality. That would be the benefit of going thru SOS. Let me know if you want me to help out further on this. We have a new rules coordinator, but I hate to lay this on her, as she won't know the background here. However, if you are going to change any past practice, then she clearly needs to be in loop. Brian -----Original Message----- From: Merrie Dinteman [mailto:dinteman@lrapa.org] Sent: Tuesday, December 04, 2007 8:47 AM To: Ralph Johnston Cc: FINNERAN Brian; HOUGH Merlyn Subject: RE: state notice of rule changes So you're saying that all the DEQ staff members you've talked with have agreed to take back responsibility for the EQC adoption of our rule changes, and we're going back to just doing local rulemaking. We just do local notice and hold a LRAPA hearing, then ship copies of everything up to DEQ and they go through the whole state process on their own, to get this through EQC and then up to EPA. This is the process we did years ago, before Don and I worked out a process to do concurrent EQC/LRAPA hearings and then send them the draft and amended rule, copies of public notices, minutes and staff reports for the meeting at which we request authorization of hearing and at which the rules are adopted, and a hearings officer report, etc. so that they don't have to recreate anything. All they have to do is put it on the EQC schedule and write a short staff report to cover the packet for the EQC, then send the EQC-adopted LRAPA rulemaking packet to EPA for inclusion as a SIP amendment. As I recall, that is not a problem for us, as far as when the rules can go into effect, unless we make a change in a standard, which requires EQC approval before it can take effect in Lane county. Great! It will cut my workload a bit and will also shorten lead time between notice and hearing dates. As long as DEQ's okay with taking on more work, it's fine with me. From now on we'll be treating all our rulemaking actions as local rules and forget about anything beyond that. Thanks for working this out with DEQ. Merrie -----Original Message----- From: Ralph Johnston Sent: Monday, December 03, 2007 7:55 PM To: Merrie Dinteman Subject: RE: state notice of rule changes I do not intend to do "anything I want". I am just trying to figure out what needs to be done and when. YOU are the rules coordinator. I had a discussion with Brian F. today. I told him that if we change our BYB rules then the DEQ will need to make changes in OAR 340-264-0164. He acknowledged that but said that they would not be making any changes at this time. He also said that it is not even on their radar to make the changes. He further said that since there would be no changes in state rules he could see no reason to advertise our changes statewide. This agrees with the opinion of other DEQ staff I have talked with. Ralph -----Original Message----- From: Merrie Dinteman Sent: Mon 12/3/2007 5:04 PM To: Ralph Johnston Subject: RE: state notice of rule changes They need it by the 15th of the month preceding the First-of-the-month publication you want your notice to appear in. Again, since the 15th is on a Saturday this month, and I'll be gone the 14th , it needs to go in on the 13th. Unless you want to do it yourself. Then you can do anything you want. From: Ralph Johnston Sent: Monday, December 03, 2007 3:13 PM To: Merrie Dinteman Subject: state notice of rule changes According to this schedule, the state only needs to receive the information 2 weeks prior to publishing. http://arcweb.sos.state.or.us/rules/bulletin_pubschedule.html Ralph