Thank you.
From: VROOMAN Gary L
Sent: Tuesday, October 03, 2017 09:43
To: GOLDSTEIN Meyer <Meyer.Goldstein@state.or.us>
Subject: RE: Administrative process to delist a hazardous waste
Looking at it in the abstract I would tend to agree. However, on a basic level I would say the reason the rule making process is required is because the applicable HW statutes and rules require it. This makes sense in some ways because you are amending the listing definition when you delist a waste and generally you would need to amend a rule with another rule. You could create some sort of exemption process that was done by order but it’s pretty well established that the RCRA delisting process, which the state has adopted by reference, is a rule adoption process. It is conceivable that EPA would take issue with DEQ adopting a different process in our RCRA certification.
Gary Vrooman
971.673.1878
From: GOLDSTEIN Meyer [mailto:meyer.goldstein@state.or.us]
Sent: Tuesday, October 3, 2017 9:09 AM
To: VROOMAN Gary L
Subject: FW: Administrative process to delist a hazardous waste
Gary,
I don’t understand how the de-listing process falls under the definition of a rule rather than an order.
(6)(a) “Order” means any agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency.
(9) “Rule” means any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency.
As I understand it, our order, or contested case, process, requires public notice and a hearing, so it seems that process fits within the statutes you discuss.
From: WHEELER Sarah
Sent: Tuesday, September 12, 2017 12:22
To: WILLIAMS Rebecca S <WILLIAMS.Rebecca@deq.state.or.us>
Cc: LIVENGOOD David <Livengood.David@deq.state.or.us>; LOBATO Dan <LOBATO.Dan@deq.state.or.us>; FULLER Brian <FULLER.Brian@deq.state.or.us>
Subject: RE: Administrative process to delist a hazardous waste
Hi Becky,
I agree with Gary’s opinion. With respect to the concern highlighted below, I would think that the petition and the rule could be written specifically enough to cover only the process(es) we want, but also allow for some flexibility that we might anticipate needing. Delisting is by design and for good reasons pretty limited, so I don’t think we want to have it be too flexible. I don’t know the facts here and I haven’t worked on a delisting before, so I’m assuming a lot. That said, I believe Gary’s advice is very sound and we should follow it.
Let me know how I/OCE can help as you work through this.
Sarah
From: WILLIAMS Rebecca S
Sent: Monday, September 11, 2017 9:39 AM
To: WHEELER Sarah
Cc: LIVENGOOD David; LOBATO Dan; FULLER Brian
Subject: Administrative process to delist a hazardous waste
Hi Sarah,
I would like to get OCE’s input on a question of administrative procedure. The HW program is anticipating receiving a petition to delist a hazardous waste at a particular facility under ORS 466.015(3). (and see below).
After notice and public hearing pursuant to ORS chapter 183, declassify as hazardous waste those substances described in ORS 466.005 (7) which the Environmental Quality Commission finds, after deliberate consideration, taking into account the public health, welfare or safety or the environment, have been properly treated or decontaminated or contain a sufficiently low concentration of hazardous material so that such substances are no longer hazardous. [Formerly 459.430; 1987 c.540 §5]
Oregon is authorized to conduct this delisting review by EPA and will be generally following EPA’s format and review protocol. EPA’s decisions to delist a hazardous waste result in Federal Rule making.
My question in particular centers around the appropriate administrative procedure for this process. As indicated above, a notice and public hearing pursuant to ORS chapter 183 is identified. It is not clearly stated however, if the delisting decision must be rule making or some other administrative method.
Internally there has been a recommendation to consider an “Order” as the delisting document to use. My understanding of an “Order” is that it is a type of enforcement document. ORS
183.310 Definitions for chapter. As used in this chapter:
(6)(a) “Order” means any agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency. “Order” includes any agency determination or decision issued in connection with a contested case proceeding.
This seems also to follow the pattern in OAR 340-012-0030 where an “Order” serves as a written enforcement notice. Additionally, if 466.005(7) defines a hazardous waste as “Unless declassified by the commission under ORS466.015(3)” then, were someone research the question “is a particular waste hazardous?”, it seems that the record keeping housed in rule creates continuity for the question of “what is and what is not a hazardous waste”. Below I have included an email string with DOJ’s response on this question.
When delisting petitions are granted, the determination is made for very process and site specific considerations in mind. If there is a change in the process, the delisting petition would no longer be effective. With that in mind, if the decision is in rule making, then a new rule making exercise would be needed for the delisting decision to be current. Therefore, some other mechanism (Order or other method) would be more nimble than rule making if available under these rules.
In summary, I would appreciate your opinion on what is the appropriate form of process to document a determination on a petition to delist a hazardous waste.
If you could provide your response by September 22, 2017, I would appreciate it! Please let me know if you want to discuss this or have any questions.
Thank you!
Becky
Rebecca Williams
Senior Hazardous Waste Policy Analyst
Oregon Department of Environmental Quality
700 NE Multnomah Street, Suite 600
Portland OR 97232-4100
Office: 503.229.6742
Williams.Rebecca@deq.state.or.us
From: VROOMAN Gary L
Sent: Tuesday, August 29, 2017 9:42 AM
To: ACOMB Jeannette <Jeannette.ACOMB@state.or.us>
Subject: RE: DEQ de-listing Question
Jeannette,
This email follows up our conversation the other day. As we discussed, I think the process applicable to delisting is a rulemaking process and the decision maker is the EQC for reasons stated below.
As you note ORS 466.015 states that DEQ shall:
“after notice and public hearing pursuant to ORS chapter 183, declassify as hazardous waste those substances described in ORS 466.005 (7) which the Environmental Quality Commission finds, after deliberate consideration, taking into account the public health, welfare or safety or the environment, have been properly treated or decontaminated or contain a sufficiently low concentration of hazardous material so that such substances are no longer hazardous.”
Your questions are what process under ORS chapter 183 is the statute referring to, rulemaking or contested case, and who makes the decision, DEQ or the EQC?
On the latter questions I think it is pretty clear that the EQC is making the decision. The statute states that it is the EQC that needs to make the finding and this would be consistent with the EQC’s other authority related to hazardous waste listings in ORS 466.020 to adopt rules concerning listing of hazardous waste. The rules implementing “delisting” further support his conclusion. OAR 340-100-0020(1) states:
“Any person may petition the Department to approve an equivalent testing or analytical method or may petition the Commission to exclude a waste produced at a particular facility. This rule sets forth general requirements which apply to all such petitions.”
OAR 340-100-0022(3) states:
“The Commission may (but shall not be required to) grant a temporary exclusion before making a final decision under 40 CFR 260.20(d) whenever it finds that there is a substantial likelihood that an exclusion will be finally granted. The Commission will place any such temporary exclusion in the public record.”
Both these rules state pretty clearly that the EQC makes the decision on delisting.
On the process for delisting question, I think the answer is that a rule making process is contemplated. The particular language of the statute is not a common way that the legislature invokes either the rulemaking or contested cast process but I think it is more consistent with rulemaking. The phrase (“after notice and public hearing”) is used in 466.005(7)(b) in the context of listing hazardous waste, a process that clearly is rulemaking under ORS 466.020(3). So it stands to reason that the legislature had the same intent when it used the phrase with respect to delisting. While the language in 466.015(3) isn’t standard rulemaking language, when the legislature intends to use the contested case process they nearly always refer to “contested cases” or to appeal of an agency decision. The legislature did neither here. Plus one wouldn’t normally refer to a contested case hearing as a “public hearing,” a public hearing is more the type of thing you would do for rulemaking. Next the federal CFRs adopted by reference pretty clearly contemplate a rulemaking process in 40 CFR 260.20 (“will publish notice of such tentative decision, either in the form of an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in the Federal Register for written public comment.”) For all those reasons I think a rulemaking process is intended for a delisting decision.
Let me know if you have any follow up questions or would like to discuss.
Gary Vrooman
971.673.1878
From: ACOMB Jeannette [mailto:jeannette.acomb@state.or.us]
Sent: Thursday, August 17, 2017 8:01 AM
To: VROOMAN Gary L
Cc: ACOMB Jeannette
Subject: DEQ de-listing Question
Morning Gary,
DEQ is potentially undertaking to delist (declassify as hazardous waste) a particular substance for a single entity under ORS 466.015(3). DEQ has been authorized by EPA for delistings, and will work closely with EPA R10 throughout the process. DEQ’s question is what procedures must DEQ follow to accomplish this? We understand we would have to give notice to the public, provide a hearing and an opportunity to comment before taking final action on this. Are there any Oregon statutes or rules DEQ must comply with in issuing this order? If there are no controlling Oregon rules or statutes, is it appropriate for Oregon to follow federal procedural rules?
ORS 466.015(3) refers to giving notice and a public hearing as ORS chapter 183 requires. But we are unclear which part or particular statute of Chapter 183 we should apply. Would this proceeding be conducted under ORS 183.413 covering contested case hearings?
Another question is ORS 466.015 discusses the powers of the Department, not the EQC. Can DEQ Department issue an order to delist a substance on its own, or does this require EQC action? There appears in OAR 340-100-0022 the EQC commission may grant a temporary exclusion, and refers back to OAR 340-100-0020 which states the Department or Commission as appropriate will make a decision to grant or deny the petition. Would there be a preference in department approval or commission approval, or should we default back to ORS 466.015(3) to have the commission make the decision?
In talking with Washington State Ecology staff, who are a year into the process to delist a U-listing confirms it will not be a state rule adoption. Ecology is similar to DEQ as it has been EPA authorized for delistings. Ecology state are working closely with EPA, and it will end in a federal notice, comment period and FR publication (see Appendix IX to 40 CFR Part 261 Wastes Excluded under §§260.20 and 260.22). Ecology plans to mirror the federal notice and federal comment period by having their state notice and comment period reference the federal notice concurrently.
Our concern would be to ensure we meet the ORS Chapter 183 state requirements, without knowing exactly what we are supposed to meet. Note: DEQ may have completed a delisting in the 1990’s that never was published in the CFR, however, we have not found to date a record of it. Please reference Q-time 38360 as appropriately.
We appreciate your help on this,
Jeannette
Jeannette Acomb
Hazardous Waste Operations & Policy Analyst
Oregon Department of Environmental Quality
700 NE Multnomah St, Ste. 600
Portland, OR 97232
Office 503.229.6303
Follow @OregonDEQ on Twitter! https://twitter.com/OregonDEQ
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