Oregon Department of Environmental Quality

 (DATE NOTICE IS PUBLISHED)

Notice of Proposed Rulemaking

Enter rulemaking name here

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Links: LINK go to SharePoint rulemaking resources and should be deleted before publishing

Tables

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Table of Contents

Introduction  3

Overview  4

Optional Additional Topic  5

Statement of need  6

Rules affected, authorities, supporting documents  9

Fee Analysis  12

Statement of fiscal and economic impact  13

Federal relationship  18

Land use  20

Stakeholder and public involvement  24

Public notice and hearings  26

Draft Rules - With Edits Highlighted  30

Draft Rules – With Edits Incorporated  31

Supporting documents  32

You may review copies of all documents referenced in this announcement at:

Oregon Department of Environmental Quality

700 NE Multnomah St., Ste. 600

Portland, OR, 97232

To schedule a review of all websites and documents referenced in this announcement, call RULE WRITER, LOCATION, PHONE NO. (800-452-4011, ext. 5622 toll-free in Oregon).

Please notify DEQ of any special physical or language accommodations or if you need information in large print, Braille or another format. To make these arrangements, contact DEQ, Portland, at 503-229-5696 or call toll-free in Oregon at 1-800-452-4011, ext. 5696; fax to 503-229-6762; or email to deqinfo@deq.state.or.us. Hearing impaired persons may call 711.

DEQ invites public input on proposed permanent rule amendments to chapter 340 of the Oregon Administrative Rules.

During the public comment period, DEQ requests public comment on whether to consider other options for achieving the rules’ substantive goals while reducing the rules’ negative economic impact on business.

During the public comment period, DEQ asks for public comment on whether there are other options for achieving the rules’ substantive goals while reducing the rules’ negative economic impact on business.

(Include all or any of the following that are helpful)

Short summary of proposed rule changes

Background of reasons for doing this rulemaking

How this rulemaking addresses the reasons for doing the rulemaking

Key policy and technical issues 

Affected parties

Outreach efforts and public and stakeholder involvement

Hearing testimony

Summary of significant public comments and responses

Effects of this rulemaking on any fees

Brief summary of fiscal impact 

More information

Information about this rulemaking is on this rulemaking’s web page: LINK TO RULEMAKING WEB PAGE

Public Hearings

DEQ plans to hold NUMBER public hearing(s). Anyone can attend a hearing in person, or by webinar or teleconference.

Information about the public hearing:

•  Date

•  Start time

•  Street address

•  Room

•  City

•  Teleconference phone number: 888-363-4734 OR 888-278-0296

•  Participant code: (4734 number) = 1910322 OR (0296 number) = 8040259

•  Webinar link:

◦  (4734 number) = 888-363-4734 webinar link

◦  OR

◦  (0296 number) = 888-278-0296 webinar link

•  Instructions on how to join webinar or teleconference: Webinar/teleconference instructions

How to comment on this rulemaking proposal

DEQ is asking for public comment on the proposed rules. Anyone can submit comments and questions about this rulemaking. A person can submit comments through an online web page, by regular mail or at the public hearing.

Comment deadline

DEQ will only consider comments on the proposed rules that DEQ receives by 4 p.m., on DATE/MONTH.

Submit comment online

LINK TO RULEMAKING COMMENT PAGE (Note that this link will not be live until the day DEQ publishes notice to the public):

http://www.oregon.gov/deq/Regulations/rulemaking/Pages/cRULEMAKINGNAME.aspx

Note for public university students:

ORS 192.345(29) allows Oregon public university and OHSU students to protect their university email addresses from disclosure under Oregon’s public records law. If you are an Oregon public university or OHSU student you may omit your email address when you complete the online form to submit a comment.

By mail

Oregon DEQ

Attn: RULE WRITER

700 NE Multnomah St., Room 600

Portland, OR 97232-4100

At hearing

DATE/MONTH

You can also participate in the hearing through a teleconference or webinar.

Teleconference call-in number:

Participant ID:

Webinar link (webinar has no audio, you must listen on the teleconference):

How to join the teleconference or webinar: Teleconference and Webinar instructions

Sign up for rulemaking notices

Get email or text updates about this rulemaking by signing up through this link:

(EDIT LINK TO ADD CORRECT TOPIC NUMBER): RULEMAKING NAME Rulemaking Email List; or on the rulemaking web site: (EDIT LINK TO ADD CORRECT RULEMAKING NAME) RULEMAKING NAME rulemaking web page.

Get email or text updates about other, future DEQ rulemaking by signing up through this link: DEQ Email Notice List.

What will happen next?

DEQ will include a written response to comments in a staff report DEQ will submit to the Environmental Quality Commission. DEQ may modify the rule proposal based on the comments.

Present proposal to the EQC

Proposed rules only become effective if the Environmental Quality Commission adopts them. DEQ plans to present the proposed rules to the commission for a decision at its meeting on DATE.

Optional Additional Topic This section is optional. If not used, it should be deleted. This section is to include information you think is important but that is not covered in another section of the notice.

Enter freeform title here

TEXT

Enter freeform title here

What need would the proposed rule address?

TEXT

How would the proposed rule address the need?

TEXT

How will DEQ know the rule addressed the need?

TEXT

Enter rule or topic title

What need would the proposed rule address?

TEXT

How would the proposed rule address the need?

TEXT

How will DEQ know the rule addressed the need?

TEXT

Enter rule or topic title

What need would the proposed rule address?

TEXT

How would the proposed rule address the need?

TEXT

How will DEQ know the rule addressed the need?

TEXT

Enter rule or topic title

What need would the proposed rule address?

TEXT

How would the proposed rule address the need?

TEXT

How will DEQ know the rule addressed the need?

TEXT

Rules affected, authorities, supporting documents

Lead division

TEXT

Program or activity

TEXT

Chapter 340 action

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Adopt

Only list newly adopted rules here; rules that have brand new numbers that have not been used before.

This only applies when we use a new rule number, such as 340-041-0033. It does not apply if we change or add a sub-part of a rule, such as 340-041-0033(a). That type of change is an amendment, not adoption of a new rule.

Amend - OAR

List here all rules that are being changed in any way, except renumbering, which is described below

Repeal - OAR

List here all rules that are being repealed, meaning they are being deleted and removed from DEQ’s rules, and that will no longer be in effect. This does not include rules that have had one part or section deleted. Deleting a part, paragraph or section of a rule is an amendment, not a repeal.

Renumber - OAR

List here only rules that are having their ten digit number changed: 340-041-0001 changed to 340-041-0002; do not list rules that are only having subsections moved or renumbered or re-lettered, but are not having their text changed in any way: 340-041-0001(a) changed to 340-041-0001(b)

Amend and Renumber - OAR

Only list here rules that are both being renumbered, as described above, and that are also having their text changed in some way

The notice must list the authorizing statutes, and the statutes implemented. These statutes are listed at the end of each rule in this format:

The authorizing statute is the statute that gives EQC the authority to make a rule on a general topic. The statute being implemented is the specific statute that a rule is explaining or expanding on.

Legislation

Other authority

ORS###.###

Documents relied on for rulemaking  ORS 183.335(2)(b)(D)

These are reports, maps, studies, and similar documents that were used in completing this rulemaking. Do not list other statutes or rules here (OAR, ORS, CFR, USC, Federal Register) unless the rule writers relied on or referred to documents contained in those statutes or rules, such as reports, maps or studies.

Fee Analysis ORS 291.055(1)(d); Fee Approval This is a discussion of why DEQ needs to add, impose, or raise fees

Include this language if these rules do not involve fees:

This rulemaking does not involve fees.

Under ORS 291.055(1)(d), DAS must approve all fee increases except for:

•  The fees created or authorized by statute have no established rate or amount but are calculated for each separate instance for each fee payer and are based on actual cost of services provided.

•  New or increased fees that are anticipated in the legislative budgeting process for an agency, revenues from which are included, explicitly or implicitly, in the legislatively adopted budget for the agency.

The Oregon Environmental Quality Commission approval of this rule proposal would [OPTION 1] establish new fees. [OPTION 2] increase existing fees. [OPTION 3] decrease existing fees. [OPTION 4 – any combination of options 1-3] EQC authority to act on the proposed fees is ORS [list the statute that authorizes DEQ to impose or raise these fees].

Brief description of proposed fees

[LIMIT DESCRIPTION TO THE EFFECT OF THE FEE PROPOSAL. ADDRESS RATIONALE UNDER REASONS.]

Enter text here

Reasons

The proposed fees would address [INCOPORATE THE BULLETED KEY PHRASES BELOW THAT APPLY TO THIS PROPOSAL.

[KEY PHRASES - PROVIDE A BRIEF EXPLANATION ABOUT EACH KEY PHRASE USED AND ADDRESS THE QUESTION, “WHY NOW?”]

•  regulatory streamlining

•  policy change

•  new fee created by statue

•  change in federal revenue

•  change in Other Funds revenue

[IDENTIFY CONCERN AND LEGISLATIVE SESSION]

•  response to legislative concerns

[PROVIDE OVERVIEW OF THE COSTS FOR KEY PHRASES]

•  increased program costs

•  costs exceed estimates

[PROVIDE TREND INFORMATION & FTE WORKLOAD STATISTICS FOR KEY PHRASES]

•  change in transaction costs

•  changed number of base fee payers

•  change in fee-payer mix

Fee proposal alternatives considered

Enter text here [INCLUDE THE STATUS QUO ALTERNATIVE]

Fee payer

Enter text here

Affected party involvement in fee-setting process

Enter text here

Summary of impacts

Enter text here

Fee payer agreement with fee proposal

Enter text here

Links to supporting documents for proposed fees

Enter document name and link

How long will the current fee sustain the program?

Enter text here

How long will the proposed fee sustain the program?

Enter text here

Transactions and revenue

Fee schedule

Enter text or table here.

Statement of fiscal and economic impact 183.335 (2)(b)(E); 183.540 Fiscal Impact Analysis   This is a discussion of the financial impact of the rule change on various parties.

Fiscal and Economic Impact

TEXT

Statement of Cost of Compliance  

State agencies  

Separately describe the impact on:

Local governments

Public

Large businesses - businesses with more than 50 employees

Small businesses – businesses with 50 or fewer employees

a. Estimated number of small businesses and types of businesses and industries with small businesses subject to proposed rule.

EXAMPLE: Assuming all manufacturers in the lowest fee tier are small businesses, these proposed rules could affect 109 small businesses.

EXAMPLE: Using recent employment data, DEQ compared the 64 businesses registered with the Clean Fuels Program to current employment data to determine how many people the business employs. Thirty-eight are small businesses. Of those 38, two are Oregon producers of fuels, nine are small importers of finished fuels and 24 are large importers.

b. Projected reporting, recordkeeping and other administrative activities, including costs of professional services, required for small businesses to comply with the proposed rule.

c. Projected equipment, supplies, labor and increased administration required for small businesses to comply with the proposed rule.

d. Describe how DEQ involved small businesses in developing this proposed rule.

Documents relied on for fiscal and economic impact

Advisory committee fiscal review

The requirement to discuss an advisory committee in this section is separate from and in addition to discussing the advisory committee in the Stakeholder Involvement section. The question to be addressed here is whether an advisory committee reviewed the fiscal impact statement.

DEQ appointed an advisory committee.

As ORS 183.33 requires, DEQ asked for the committee’s recommendations on:

•  Whether the proposed rules would have a fiscal impact,

•  The extent of the impact, and

•  Whether the proposed rules would have a significant adverse impact on small businesses; if so, then how DEQ can comply with ORS 183.540 reduce that impact.

The committee reviewed the draft fiscal and economic impact statement and  

Choose one:

-documented its recommendations in the (e

- its findings are stated in the approved minutes dated DATE.

The committee The committee determined the proposed rules would/would not have a significant adverse impact on small businesses in Oregon.

Only if the fiscal impact statement or the advisory committee determined there would be a significant adverse impact on small business, include the following:

As ORS 183.333 and 183.540 require, the committee considered how DEQ could reduce the rules’ fiscal impact on small business by:

•  Establishing differing compliance or reporting requirements or time tables for small business;

•  Clarifying, consolidating or simplifying the compliance and reporting requirements under the rule for small business;

•  Utilizing objective criteria for standards;

•  Exempting small businesses from any or all requirements of the rule; or

•  Otherwise establishing less intrusive or less costly alternatives applicable to small business.

DEQ did not appoint an advisory committee. State why DEQ did not convene an advisory committee.

If DEQ did not appoint an advisory committee and DEQ found there would be a significant adverse fiscal impact on small businesses, include the following:

DEQ determined the rules would have a significant adverse impact on small businesses. As ORS 183.540 requires, DEQ considered how to reduce that impact by:

•  Establishing differing compliance or reporting requirements or time tables for small business;

•  Clarifying, consolidating or simplifying the compliance and reporting requirements under the rule for small business;

•  Utilizing objective criteria for standards;

•  Exempting small businesses from any or all requirements of the rule; or

•  Otherwise establishing less intrusive or less costly alternatives applicable to small business.

Explain the outcome of DEQ’s review of these questions.

Housing cost

As ORS 183.534 requires, DEQ evaluated whether the proposed rules would have an effect on the development cost of a 6,000-square-foot parcel and construction of a 1,200-square-foot detached, single-family dwelling on that parcel. DEQ determined the proposed rules

Choose one, delete the other:

would have no effect on the development costs because explain why.

or

would/could affect the development costs by explain why and how much, if possible, the rules raise these costs.

Federal relationship ORS 183.332; 468A.327; OAR 340-011-0029

Relationship to federal requirements

183.332 Policy statement; conformity of state rules with equivalent federal laws and rules. It is the policy of this state that agencies shall seek to retain and promote the unique identity of Oregon by considering local conditions when an agency adopts policies and rules. However, since there are many federal laws and regulations that apply to activities that are also regulated by the state, it is also the policy of this state that agencies attempt to adopt rules that correspond with equivalent federal laws and rules unless:

      (1) There is specific statutory direction to the agency that authorizes the adoption of the rule;

      (2) A federal waiver has been granted that authorizes the adoption of the rule;

      (3) Local or special conditions exist in this state that warrant a different rule;

      (4) The state rule has the effect of clarifying the federal rules, standards, procedures or requirements;

      (5) The state rule achieves the goals of the federal and state law with the least impact on public and private resources; or

      (6) There is no corresponding federal regulation. [1997 c.602 §2]

ORS 183.332, 468A.327 and OAR 340-011-0029 require DEQ to attempt to adopt rules that correspond with existing equivalent federal laws and rules unless there are reasons not to do so.

The proposed rules would adopt federal requirements.

The proposed rules are not different from or in addition to federal requirements

The proposed rules add requirements additional to those in federal requirements.

Explain the public health, environmental, scientific, economic, technological, administrative (statutory categories) or other reasons DEQ is imposing requirements that differ from or are in addition to, related federal requirements.

Explain the public health, environmental, scientific, economic, technological, administrative (statutory categories) or other reasons DEQ is imposing requirements that are in addition to related federal requirements.

What alternatives did DEQ consider if any?

If the proposed rules differ from or impose additional requirements above the federal requirements, include this section; otherwise delete it:

Land use ORS 197.180; OAR 340-018-0070; 660-030-0005, 660-030-0075 Land Use

There is a link to DEQ’s State Agency Coordination program on the Rule Resources section of the rulemaking SharePoint page and a copy of that document is stored in the Rulemaking Resources folder, under “land use.”

If DEQ determines a new or amended rule does affect land use DEQ must provide notice of the rule to the Department of Land Conservation and Development and anyone on the land use mailing list. DEQ accomplishes this by emailing a copy of this notice to DLCD contact person that includes:

(a) Evidence that the rule or program is a land use program; or

(b) Evidence that the rule or program affects land use and is covered under the Department's certified State Agency Coordination Program; or

(c) Evidence that the rule or program is a land use program including an explanation of how goal compliance and plan compatibility will be assured.

The State of Oregon has adopted statewide land use planning goals that are authorized under ORS 197.180 and listed in OAR 660-015-0000-0010. There are 19 such goals. The other aspect of statewide coordination in planning is that local entities must adopt comprehensive land use and development plans, called “acknowledged comprehensive plans.” State agencies must coordinate their efforts with the statewide goals and local comprehensive plans.

ORS 197.180 and OAR 340-018-0070 require DEQ to determine whether a new or amended rule affects land use as described in ORS 197.180. If so, DEQ must make certain determinations.

DEQ adopted a State Agency Coordination (SAC) plan that describes which of DEQ’s rules and programs affect land use or constitute a land-use program, and how DEQ will comply with state land-use goals and ensure compatibility with local comprehensive plans. Rules that affect land use are termed a “land use program” under the controlling statutes.

A rule or program affects land use if:

•  The statewide land use planning goals specifically refer to the rule or program, or

•  The rule or program is reasonably expected to have significant effects on:

◦  Resources, objectives or areas identified in the statewide planning goals, or

◦  Present or future land uses identified in acknowledged comprehensive plans

If a proposed new or amended rule does not specifically fall within the above requirements, it could still be considered to affect land use. If there is any question on this, consult DOJ.

If a proposed new or amended rule does affect land use, DEQ must explain how it will comply with state wide goals and ensure compatibility with local comprehensive plans. One way DEQ can meet this requirement is by showing the procedures in DEQ’s SAC adequately address the land-use aspect of the proposed rules. If the SAC does not address the proposed rules, DEQ must explain how it will otherwise meet this requirement.

Through the SAC and OAR 340-018-0030, DEQ determined its programs directly relate to the following the statewide goals:

•  Goal 5 – Open Spaces

•  Goal 6 – Air, Water and Land Resources Quality

•  Goal 11 – Public Facilities and Services

•  Goal 16 – Estuarine Resources

•  Goal 19 – Ocean Resources

DEQ also determined three statewide goals specifically reference DEQ programs:

•  Nonpoint source discharge water quality program – Goal 16

•  Water quality and sewage disposal systems – Goal 16

•  Water quality permits and oil spill regulations – Goal 19

DEQ adopted findings, through OAR 340-018-0030, that the following programs do have a significant effect on land use:

Land-use considerations

In adopting new or amended rules, ORS 197.180 and OAR 340-018-0070 require DEQ to determine whether the proposed rules significantly affect land use. If so, DEQ must explain how the proposed rules comply with state wide land-use planning goals and local acknowledged comprehensive plans.

Under OAR 660-030-0005 and OAR 340 Division 18, DEQ considers that rules affect land use if:

•  The statewide land use planning goals specifically refer to the rule or program, or

•  The rule or program is reasonably expected to have significant effects on:

◦  Resources, objectives or areas identified in the statewide planning goals, or

◦  Present or future land uses identified in acknowledged comprehensive plans

DEQ determined whether the proposed rules involve programs or actions that affect land use by reviewing its Statewide Agency Coordination plan. The plan describes the programs that DEQ determined significantly affect land use. DEQ considers that its programs specifically relate to the following statewide goals:

Statewide goals also specifically reference the following DEQ programs:

•  Nonpoint source discharge water quality program – Goal 16

•  Water quality and sewage disposal systems – Goal 16

•  Water quality permits and oil spill regulations – Goal 19

Determination

DEQ determined that these proposed rules do not affect land use under OAR 340-018-0030 or DEQ’s State Agency Coordination Program.

DEQ determined that the following proposed rules (or all of the proposed rules) affect programs or activities that the DEQ State Agency Coordination Program considers a land-use program.

OAR 340-XXX-XXXX

OAR 340-XXX-XXXX

DEQ’s statewide goal compliance and local plan compatibility procedures adequately cover the proposed rules. TEXT

DEQ’s statewide goal compliance and local plan compatibility procedures do not cover the proposed rules.

DEQ will ensure these rules comply with statewide goals and are compatible with local plans by TEXT.

DEQ did not present additional information specific to this proposed rule revision.

DEQ shared information about this rulemaking with the EQC

Choose one and delete the other options:

at a facilitated hearing on

through an informational item on the DATE EQC agenda

Advisory Committee ORS 183.333; 183.333(3)

Background

DEQ did not convene an advisory committee because TEXT.

DEQ convened the COMMITTEE NAME advisory committee. The committee included representatives from (gmet times. The committee’s web page is located at: LINK TO COMMITTEE WEB PAGE.

The committee members were:

Meeting notifications

To notify people about the advisory committee’s activities, DEQ:

•  Sent GovDelivery bulletins, a free e-mail subscription service, to the following lists:

•   Rulemaking

•  

•  

•  On DATES DEQ sent a one-time notice to subscribers to describe how to sign up for advisory committee meeting notices, and

•  People who signed up for the advisory committee bulletin.

•  Added advisory committee announcements to DEQ’s calendar of public meetings at DEQ Calendar.

•  On DATES DEQ provided notice of meetings and links to committee information through postings on Facebook and Twitter.

Committee discussions

In addition to the recommendations described under the Statement of Fiscal and Economic Impact section above, the committee

Public Engagement ORS 183.335(1); 468.020(2) Public Hearings

Public notice

DEQ provided notice of the proposed rulemaking and rulemaking hearing on DATE by:

•  On DATE Filing notice with the Oregon Secretary of State for publication in the DATE Oregon Bulletin;

•  Notifying the EPA by mail;

•  Posting the Notice, Invitation to Comment and Draft Rules on the web page for this rulemaking, located at: RULEMAKING WEB PAGE LINK;

•  Emailing NUMBER OF PARTIES interested parties on the following DEQ lists through GovDelivery:

•  Rulemaking

•  TOPIC

•  TOPIC

•  stakeholders on the

•  Emailing the following key legislators required under ORS 183.335:

•  

•  

•  

•  Emailing advisory committee members,

•  Postings on Twitter and Facebook

•  Posting on the DEQ event calendar: DEQ Calendar

•  

•   Publishing notice in the following newspapers (ONLY WHERE RULE AFFECTS ONLY A LIMITED GEOGRAPHICAL AREA):

(choose the appropriate ones and delete the rest)

•  The Oregonian  PUBLICATION DATE

•   East Oregon (Pendleton)  PUBLICATION DATE

•   Register Guard (Eugene) PUBLICATION DATE

•   Mail Tribune (Medford)  PUBLICATION DATE

•   Klamath Herald & News (Klamath Falls)  PUBLICATION DATE

•   La Grande Observer (La Grande)  PUBLICATION DATE

•   Daily Journal of Commerce  PUBLICATION DATE

How to comment on this rulemaking proposal

DEQ is asking for public comment on the proposed rules. Anyone can submit comments and questions about this rulemaking. A person can submit comments through an online web page, by regular mail or at the public hearing.

Comment deadline

DEQ will only consider comments on the proposed rules that DEQ receives by 4 p.m., on DATE/MONTH.

Submit comment online

LINK TO RULEMAKING COMMENT PAGE (Note that this link will not be live until the day DEQ publishes notice to the public):

http://www.oregon.gov/deq/Regulations/rulemaking/Pages/cRULEMAKINGNAME.aspx

Note for public university students:

ORS 192.345(29) allows Oregon public university and OHSU students to protect their university email addresses from disclosure under Oregon’s public records law. If you are an Oregon public university or OHSU student you may omit your email address when you complete the online form to submit a comment.

By mail

Oregon DEQ

Attn: RULE WRITER

700 NE Multnomah St., Room 600

Portland, OR 97232-4100

At hearing

DATE/MONTH

You can also participate in the hearing through a teleconference or webinar.

Teleconference call-in number:

Participant ID:

Webinar link (webinar has no audio, you must listen on the teleconference):

How to join the teleconference or webinar: Teleconference and Webinar instructions

Public hearings

DEQ plans to hold NUMBER public hearing(s). Anyone can attend a hearing in person, or by webinar or teleconference.

Information about the public hearing:

•  Date

•  Start time

•  Street address

•  Room

•  City

•  Teleconference phone number: 888-363-4734 OR 888-278-0296

•  Participant code: (4734 number) = 1910322 OR (0296 number) = 8040259

•  Webinar link:

◦  (4734 number) = 888-363-4734 webinar link

◦  OR

◦  (0296 number) = 888-278-0296 webinar link

•  Instructions on how to join webinar or teleconference: Webinar/teleconference instructions

DEQ will consider all written comments received at the hearings listed below before completing the draft rules. DEQ will summarize all comments and respond to comments in the Environmental Quality Commission staff report.

Any person can submit comments on the proposed rules as described in the Introduction section of this document.