Ply - ^° E ms- 0A- ZOO -0 `?

Department of Environmental Quality

811 SW Sixth Avenue

Portland, OR 97204-1390

503-229-5696

TTY: 503-229-6993

May 20, 2008

Elfin D. Miller, Regional Administrator

U.S. Environmental Protection Agency, Region 10

1200 Sixth Avenue

Seattle, WA 98101

RE: Revision to the Oregon State Implementation Plan: Clarification of Proposed

Orders in Contested Enforcement Cases

Dear Ms. Miller:

The Oregon Department of Environmental Quality (DEQ) requests approval of revisions

to the Oregon State Implementation Plan (SIP) from the Office of Air, Waste, and

Toxics, State and Tribal Air Programs Unit of the U.S. EPA, Region 10. Copies of the

amendments are submitted for your review.

The Environmental Quality Commission adopted the revisions to the SIP under OAR

340-200-0040 on October 17, 2007. DEQ submits these revisions to EPA as part of the

SIP and pursuant to 40 CFR 51.104.

I certify that public notices were published in newspapers of general circulation on May

17, 2007, and in the Secretary of State's Oregon Bulletin on June 1, 2007. The notices

included a statement that adoption of the rules would revise the SIP. I further certify that

a public hearing was held on June 19, 2007 in Portland Oregon.

Thank you for your assistance with these revisions to Oregon's SIP. The staff contact for

this submittal is Sarah Greenley, Compliance & Enforcement, at 503-229-6927, and

Shelley Matthews, SIP Coordinator, at (503) 229-6457.

Sincerely,

ablitAA-i

J ni Hammond,

Acting Deputy Director

cc wlattaclunents: Claudia Vaupel, EPA, Region 10 (3 complete sets plus 2 additional

copies of revised rules, Attachment 3)

cc wlo attachments: Shelley Matthews, DEQ AQ SIP Coordinator

Andrew Ginsburg, DEQ AQ Administrator

Paul Koprowski, EPA Oregon Operations office

Oregon

Theodore R. Ku[ongoski, Governor

Received

MAY 2 2 2008

Office OfAir, Waste

And Toxics
Attachments:

Attachment 1: Evidence that the State has adopted the revision.

1.1 Staff Report, Agenda item B of the October 17, 2007 EQC

Meeting. Also, see Certificate and Order for Filing Permanent

Administrative Rules in Attachment 4.2.

Attachment 2: Evidence that the State has the necessary legal authority.

See Attachment 1.1 "Commission Authority" (page 3 of Staff Report,

Agenda Item B).

Attachment 3: Provisions submitted for approval.

3.1 General Air Pollution Procedures and Definitions: OAR 340-200:

0040. Effective March 20, 2008.

3.2 General Applicability and Organization: OAR 340-011: 0005,

0009, 0510, 0515, 0573, 0575. Effective March 20, 2008.

Attachment 4: Evidence that the State followed the Administrative Procedures Act.

4.1 Public notice in the Secretary of State's Oregon Bulletin, June 1,

2007.

4.2 Certificate and Order for Filing Permanent Administrative Rules,

filed March 20, 2008.

Attachment 5: Evidence of adequate public notice.

5.1 Affidavit of Publication: The Oregonian, Notice of May 17, 2007

publication.

Attachment 6: Certification of public hearing.

See paragraph three of cover letter and Attachment 7.1.

Attachment 7: Compilation of public comments and Department's response.

7.1 Presiding Officer's Report for Rulemaking Hearing held on June

19, 2007.

7.2 Compilation of Public Comment, October 18, 2007.
Included Attachment

SIP Submittal Checklist ',HI] '1,

Titlej

X 1 Evidence that the State has Adopted the Revision

X 1'1

Staff Report, Agenda Item B of the October 17, 2007 EQC Meeting. Also, see Certificate and Order for

Filing Permanent Administrative Rules in Attachment 4.2.

X 2 Evidence that the State has the Necessary Legal Authority

See Attachment 1.1 "Commission Authority" (page 3 of Staff Report, Agenda Item B)

X 3 Provisions Submitted for Approval

(Attachment 3.1 Redline/strikeout version of rules; 3.2: Amended rules submitted to SOS)

X

3.1

General Air Pollution Procedures and Definitions: OAR 340-200: 0040.

Rules of General Applicability and Organization: OAR 340-011: 0005, 0009, 0510, 0515, 0573, 0575.

Effective Date: March 20, 2008

X

3.2

General Air Pollution Procedures and Definitions: OAR 340-200: 0040.

Rules of General Applicability and Organization: OAR 340-011: 0005, 0009, 0510, 0515, 0573, 0575.

Effective Date: March 20, 2008

X 4 Evidence that the State Followed the Administrative Procedures Act

X 4.1 Public notice in the Secretary of State's Oregon Bulletin, June 1, 2007.

X 4.2 Certificate and Order for Filing Permanent Administrative Rules, filed March 20, 2008

X 5 Evidence of Adequate Public Notice

X 5.1 Affidavit of Publication: The Oregonian, Notice of May 17, 2007 publication

X 6 Certification of Public Hearing

See paragraph no. 3 of cover letter and Attachment 7.1

X 7 Compilation of Public Comments and Department's Response

X 7,1 Presiding Officer's Report for Rulemaking Hearing on June 19, 2007

X 7.2 Compilation of Public Comment, October 18, 2007

Attachment 1

Evidence the State has

Adopted the Revision

1.1 Staff Report, Agenda Item B of the October 17, 2007 EQC Meeting.

See also Certificate and Order for Filing Permanent Administrative Rules in

Attachment 4.2.

Attachment 1.1, pg. 1

State of Oregon

Department of Environmental Quality Memorandum

Date: October 1, 2007

To: Environmental Quality Commis o

From: Stephanie Hallock, Director

Subject: Agenda Item B

Rule Adoption: Clarification of Proposed Orders in Contested Enforcement Cases

October 17, 2007, EQC Meeting

Why this is The Environmental Quality Commission (EQC) asked the Department of

Important Environmental Quality (DEQ) to improve the clarity and completeness of

contested case appeals coming before the EQC.

Additionally, DEQ regulations governing the appeals process (Division 11) need

updating, clarification, and correction of an error in order to make the contested

case process more effective.

Department DEQ requests that the EQC adopt the proposed rules and rule amendments in

Attachment A.

Background

One function of the DEQ is to enforce environmental laws to compel compliance

and create deterrence. When a person or business does not agree with DEQ's

enforcement action, they have the right to a contested case hearing before an

administrative law judge (AU). If either party to a contested case is dissatisfied with

the ALJ's decision (issued in the form of a "proposed order"), they may appeal that

decision to the EQC. In order to make a sound decision on appeal, the EQC needs to

be able to understand the issues and the basis for the ALJ's rulings.

Proposed Rule Changes

DEQ proposes two main changes to the existing rules in Division 11:

(1) Adopt Oregon Administrative Rule (OAR) 340-011-0573 and amend OAR

340-011-0575 to allow both parties (respondent and DEQ) in contested cases to

request that the AU revise the proposed order when the proposed order does not

contain all of the information required by OAR 137-003-0645(3).

Part (1) of the rule change is needed to ensure the EQC has the most clear

and complete proposed order available for review. The rules do not

currently provide both parties to contested case hearings with an

opportunity to request this type of clarification of proposed orders. The

proposed rule will allow both DEQ and respondents to request such a

DO I

Recommendation

Background and

Need for

Rulemaking
Attachment 1.1, pg. 2

Agenda Item B

Rule Adoption: Clarification of Proposed Orders in Contested Enforcement Cases

October 17, 2007, EQC Meeting

Page 2 of 4

clarification prior to deciding whether to appeal the proposed order to the

EQC, which should eliminate the need for some appeals to the EQC and

reduce the time necessary to reach some final orders. This rulemaking is

needed to improve the clarity and legal sufficiency of proposed orders in

contested cases, for the purpose of assisting the EQC in reaching fully

informed and well reasoned decisions.

(2) Amend OAR 340-011-0510(1) to clarify the circumstances under which

Environmental Law Specialists (ELSs) are authorized to provide lay

representation on behalf of DEQ in contested. case proceedings.

Part (2) of the rule change is needed to explicitly authorize ELSs to

represent DEQ in contested case hearings involving permit, license, and

certification revocations, modifications, and denials. ELS representation

of DEQ in contested case proceedings involving license, permit, or

certification revocations, modifications, and denials is needed in order to

effectively use agency staff and save agency resources.

Additionally, this rulemaking would:

• Correct a typographical error in OAR 340 .011-0515 to reference the

proper rule in the Oregon Administrative Procedures Act regarding the

extent to which parties may be represented by attorneys or other authorized

representatives in proceedings before ALJs or the EQC (the current rule

references OAR 340-003-0555, and the proper reference is OAR x37-003-

0555). Amend OAR 340-011-0005 to update the incorporation by

reference of Divisions 003 and most of Division 001 of the Attorney

General's Uniform and Model Rules_(Model.Ru_les), in order to keep

DEQ's rules consistent with the Model Rules, which DOJ revises yearly.

Additionally, the rulemaking would adopt OAR 340-011-0009 to

incorporate Division 004 of the Model Rules (regulating Miscellaneous

items and Orders in Other than Contested Cases). To date, the agency has

not had any express authority for processing orders in other than contested

cases (e.g. petitions for reconsideration), and we need procedures to apply

to these circumstances.

• Finally, because this rulemaldng may affect enforcement of Clean Air Act

requirements, OAR 340-200-0040 would be updated to. reflect the date the

EQC adopts these rules. These amendments, if adopted, will be submitted

to the U.S. Environmental Protection Agency as a revision to the State

Implementation Plan, which is a requirement of the Clean Air Act.

002..
Attachment 1.1, pg. 3

Agenda Item B

Rule Adoption: Clarification of Proposed Orders in Contested Enforcement Cases

October 17, 2007, EQC Meeting

Page 3 of 4

Effect of Rule The proposed changes are procedural in nature and the general purpose of all of the

proposed rule changes is to promote a more effective and efficient enforcement

process.

In summary, the proposed changes will:

• Allow any party to a DEQ contested case proceeding to request that the AU

revise the proposed order to provide a more clear and complete

description and analysis of the record on appeal to the EQC;

• Clarify that ELSs may provide lay representation on behalf of the DEQ in

contested case proceedings involving license, permit, or certification

revocations, modifications, and denials;

• Correct a typographical error to reference the proper rule in the Oregon

Administrative Procedures Act regarding the extent to which parties may

be represented by attorneys or other authorized representatives in

proceedings before ALJs or the EQC; and

• Update the incorporation by reference of the Attorney General's Model

Rules, and incorporate the Attorney General's Model Rules for

Miscellaneous and Orders in Other than Contested Cases.

Please note that the proposed language of OAR 340-011-0573(4) has been revised

since the public comment period in order to correct a mistake in grammar.

Commission The Commission has authority to take this action under ORS 468.020.

Authority

Stakeholder No advisory committee was used due to the limited procedural nature of the

Involvement rulemaldng. Anticipated stakeholders (the Office of Administrative Hearings

(OAH), DOJ, and representatives of potential respondents) were informed of the

proposed rulemaking and have informally provided input.

Public Comment A public comment period extended from May 16, 2007 to July 2, 2007, and

included a public hearing in Portland, Oregon. No comments were submitted, and

no testimony was given (see Attachments B and C).

Key Issues A key issue identified early in the rulemaking development process was the

OAH's response to DEQ's proposal regarding motions for clarification. The EQC

discussed this issue with DEQ and OAH at its October 6, 2006, and December 14,

2006 meetings. Specifically, OAH raised questions regarding alternative ways to

achieve the EQC's goal. The EQC determined that the alternative presented

would not meet the goals of the EQC, and the EQC authorized DEQ to proceed

with drafting a rule that would provide for motions for clarification. The rule will
Attachment 1.1, pg. 4

Agenda Item B

Rule Adoption: Clarification of Proposed Orders in Contested Enforcement Cases

October 17, 2007, EQC Meeting

Page 4 of 4

allow both parties to an enforcement action to make motions for clarification, but

such a motion will not require ALJs to take any further action to clarify proposed

orders.

Next Steps For the rules to apply in contested case hearings, DEQ will need final approval

from DOJ, which will involve DOJ consultation with OAH on the proposed rule

regarding motions for clarification. The Department conferred with DOJ during

the development of the rules and expects approval of the rules, possibly as early as

the end of November 2007.

Effective date: Upon filing with the Secretary of State.

DEQ's Rule Implementation Plan is available upon request.

Attachments A. Proposed Rule Revisions

B. Summary of Public Comments and Agency Responses

C. Presiding Officer's Report on Public Hearings

D. Relationship to Federal Requirements Questions

E. Statement of Need and Fiscal and Economic Impact

F. Land Use Evaluation Statement

Available Upon . 1. Legal Notice of Hearing

Request 2. Cover Memorandum from Public Notice

3. Rule Implementation Plan

Approved: .

Report Prepared By: Sarah Greenley

Phone: (503) 229-6927

00a

e K. Hickman, A. nistrator

Office of Compliance and Enforcement
Attachment 2

Evidence that the State

has the Necessary Legal Authority

See Attachment 1.1 "Commission Authority" (page 3 of Staff

Report, Agenda Item B).

Attachment 3

Provisions Submitted for Approval

3.1 General Air Pollution Procedures and Definitions: OAR

340-200-0040. Effective March 20, 2008.

3.2 General Applicability and Organization: OAR 340-011:

0005, 0009, 0510, 0515, 0573, 0575. Effective March

20, 2008.

Attachment 3.1, pg. 1

PROPOSED RULE CHANGES

340-011-0005

Definitions

Unless otherwise defined in this division, the words and phrases used in this division

have the same meaning given them in ORS 183.310, the rules of the Office of

Administrative Hearings, the Model Rules or other divisions in Oregon Administrative

Rules, Chapter 340, as context requires.

(1) "Commission" means the Environmental Quality Commission.

(2) "Department" means the Department of Environmental Quality.

(3) "Director" means the director of the department or the director's authorized delegates.

(4) " Rules of the Office of Administrative Hearings" means the Attorney General's

Rules, OAR 137-003-0501 through 137-003-0700.

(5) "Model Rules" or "Uniform Rules" means the Attorney General's Uniform and

Model Rules of Procedure,OAR 137 001 0005 through 137 003 0500, excluding OAR

22

. OAR Chapter 137,

Division 001 (excluding OAR 137-001-0008 through 137-001-0009), OAR Chapter 1371

Division 003, and OAR Chapter 137, Division 004, as in effect on January 1, 2006.

(6) "Participant" means the respondent, a person granted either party or limited party

status in the contested case under OAR 137-003-0535, an agency participating in the

contested case under OAR 137-003-0540, and the department.

(7) "Respondent" means the person to whom a formal enforcement action is issued.

(8) "Formal Enforcement Action" has the same meaning as defined in OAR 340, division

012.

Stat. Auth.: ORS 183.341 & 468.020

Stats, Implemented: ORS 183.341

Hist.: DEQ 69(Ternp), f. & of 3-22-74; DEQ 72, f 6-5-74, ef. 6-25-74; DEQ 78, f. 9-6-

74, ef. 9-25-74; DEQ 122, f. & of 9-13-76; DEQ 25-1979, f. & ef. 7-5-79; DEQ 7-1988,

f. & cert. ef. 5-6-88; DEQ 10-1997, f. & cert. ef. 6-10-97; DEQ 3-1998, f. & cert. of 3-9-

98; DEQ 1-2000(Temp), f. 2-15-00, cert. of 2-15-00 thru 7-31-00; DEQ 9-2000, f&

cert. ef. 7-21-00; DEQ 10-2002, f. & cert. ef. 10-8-02; DEQ 18-2003, f. & cert. ef. 12-12-

03

Attachment A

Page 1 of 7

005
Attachment 3.1, pg. 2

340-011-0009

Incorporation of Attorney General's Uniform and Model Rules

The following Attorney General's Uniform and Model Rules of Procedure are adopted

and incorporated into this Division,_except as otherwise provided in this Chapter: OAR

Chapter 137, Division 001 (excluding OAR 137-001-0008 through 137-001-0009), OAR

Chapter 137 Division 003, and OAR Chapter 137, Division 004, as in effect on January

1, 2006.

* * *

340-011-0510

Agency Representation by Environmental Law Specialist

(1) Environmental Law Specialists, and other department personnel as approved by the

director, are authorized to appear on behalf of the department and commission in

contested case hearings involving formal enforcement actions issued under OAR 340,

division 012, and revocation, modification, or denial of licenses, permits, and

certifications.

(2) Environmental Law Specialists or other approved personnel may not present legal

argument as defined under OAR 137-003-0545 on behalf of the department or

commission in contested case hearings.

(3) When the department determines it is necessary to consult with the Attorney General's

office, an administrative law judge will provide a reasonable period of time for an agency

representative to consult with the Attorney General's office and to obtain either written or

oral legal argument, if necessary.

Stat. Auth.: ORS 183.341, ORS 183,452 & ORS 468.020

Stats. Implemented: ORS 183.452

Hist.: DEQ 16-1991, f & cert. of 9-30-91; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-

00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0103 by

DEQ 18-2003, f. & cert. ef. 12-12-03

340-011-0515

Authorized Representative of Respondent other than a Natural Person in a

Contested Case Hearing

A corporation, partnership, limited liability company, unincorporated association, trust

and government body may be represented by either an attorney or an authorized

Attachment A

Page 2 of 7

Dt
Attachment 3.1, pg. 3

representative in a contested case hearing before an administrative law judge or the

I

commission to the extent allowed by OAR 349137-003-0555.

Stat. Auth.: ORS 183.341 & ORS 468.020

Stats. Implemented: ORS 183.457

Hist.: DEQ 6-2002(Temp), f. & cert. ef. 4-24-02, thru 10-21-02; DEQ 10-2002, f. & cert.

of 10-8-02; Renumbered from 340-011-0106 by DEQ 18-2003, f. & cert. of 12-12-03

* * *

OAR 340-011-0573

Proposed Orders in Contested Cases

(1) Following the close of the record for a contested case hearing, the administrative law

judge will issue aproposed order. The administrative law 'ud.,e will serve thetwoposed

order on each participant. A proposed contested case order must conform to the .

requirements of OAR 137-003-0645(3).

(2) Within 15 days after a proposed contested case order is issued, a participant in the

contested case hearing may file a motion requesting that the administrative law judge

clarify or supplement a proposed order. The motion must specify why the participant

believes that the proposed order fails to conform to the requirements of OAR 137-003-

0645(3) and recommend changes to the order. The motion must be served on the

administrative law judge and allparticipants in the contested case hearing.

(3)The administrative law judge may grant or deny a motion filed under section (2) of

this rule within 15 days. If the motion is granted, the administrative law judge may take

the matter under advisement and reissue the p oposed order unchanged or may issue an

amended proposed order. If the administrative law judge fails to act on the motion within,

15 days, the motion is deemed denied by operation of law.

(4) The filing of a timely motion for clarification under section (2) of this rule tolls the

period for filingaPetition for Commission Review of the proposed contested case order

under OAR 340-011-0575. Tolling of the period begins on the day the motion is served

on the administrative law judge and ends on the day the motion is denied, deemed denied

by operation of law, or the proposed order is reissued without changes. If the

administrative law judge issues an amended proposed order, the amended order will be

treated as a new proposed order for purpose of the filling a timely Petition for

Commission Review under OAR 340-011-0575.

(5) The motion for clarification authorized by this rule is intended to alter the provisions

of OAR 137-003-0655 but not to eliminate the authority of the administrative law judge

to correct a proposed order in the manner specified in section (2) of that rule.

Attachment A

Page 3 of 7

o1
Attachment 3.1, pg. 4

(6) A motion for clarification and any response to a motion for clarification will be part

of the record on appeal.

* * *

340-011-0575

Review of Proposed Orders in Contested Cases

(1) For purposes of this rule, filing means receipt in the office of the director or other

office of the department.

(2) Following the elos° of-the rsc-ord for a contested-ease-h

ewer on each participant:

(42) Commencement of Review by the Commission: The proposed order will become

final unless a participant or a member of the commission files, with the commission, a

Petition for Commission Review within 30 days of service of the proposed order. The

timely filing of a Petition is a jurisdictional requirement and cannot be waived. Any

participant may file a petition whether or not another participant has filed a petition.

(41) Contents of the Petition for Commission Review. A petition must be in writing and

need only state the participant's or a commissioner's intent that the commission review

the proposed order. Each petition and subsequent brief must be captioned to indicate the

participant filing the document and the type of document (for example: Respondents

Exceptions and Brief; Department's Answer to Respondent's Exceptions and Brief).

(54) Procedures on Review:

(a) Exceptions and Brief: Within 30 days from the filing of a petition, the participant(s)

filing the-petition must file written exceptions and brief. The. exceptions. must specify .

those findings and conclusions objected to, and also include proposed alternative findings

of fact, conclusions of law, and order with specific references to the parts of the record

upon which the participant relies. The brief must include the arguments supporting these

alternative findings of fact, conclusions of law and order. Failure to take an exception to a

finding or conclusion in the brief, waives the participant's ability to later raise that .

exception.

(b) Answering Brief: Each participant, except for the participant(s) filing that exceptions

and brief, will have 30 days from the date of filing of the exceptions and. brief under

subsection (5)(a), in which to file an answering brief.

Attachment'A

Page 4 of 7
Attachment 3.1, pg. 5

(c) Reply Brief. If an answering brief is filed, the participant(s) who filed a petition will

have 20 days from the date of filing of the answering brief under subsection (5)(b), in

which to file a reply brief.

(d) Briefing on Commission Invoked Review: When one or more members of the

commission wish to review the proposed order, and no participant has timely filed a

Petition, the chair of the commission will promptly notify the participants of the issue

that the commission desires the participants to brief. The participants must limit their

briefs to those issues. The chair of the commission will also establish the schedule for

filing of briefs. When the commission wishes to review the proposed order and a

participant also requested review, briefing will follow the schedule set forth in

subsections (a), (b), and (c) of this section.

(e) Extensions: The commission or director may extend any of the time limits contained

in section (5) of this rule. Each extension request must be in writing and filed with the

commission before the expiration of the time limit. Any request for an extension may be

granted or denied in whole or in part.

(f) Dismissal: The commission may dismiss any petition, upon motion of any participant

or on its own motion, if the participant(s) seeking review fails to timely file the

exceptions or brief required under subsection (5)(a) of this rule. A motion to dismiss

made by a participant must be filed within 45 days after the filing of the Petition. At the

time of dismissal, the commission will also enter a final order upholding the proposed

order.

(g) Oral Argument: Following the expiration of the time allowed the participants to

present exceptions and briefs, the matter will be scheduled for oral argument before the

commission.

(6) Additional Evidence: A request to present additional evidence must be submitted by

motion and must be accompanied by a statement showing good cause for the failure to

present the evidence to the administrative law judge. The motion must accompany the

brief filed under subsection (5)(a) or (b) of this rule. If the commission grants the motion

or decides on its own motion that additional evidence is necessary, the matter will be

remanded to an administrative law judge for further proceedings.

(76) Scope of Review: The commission may substitute its judgment for that of the

administrative law judge in making any particular finding of fact, conclusion of law, or

order except as limited by OAR 137-003-0655 and 137-003-0665.

(S7) Service of documents on other participants: All documents required to be filed with

the commission under this rule must also be served upon each participant in the contested

case hearing. Service can be completed by personal `service, certified mail or regular mail.

Stat. Auth.: ORS 183.341 & 468.020

Stats. Implemented: ORS 183.460, 183,464 & ORS 183.470

Attachment A

Page 5 of 7

ry)
Attachment 3.1, pg. 6

Hist,: DEQ 78, f. 9-6-74, e£ 9-25-74; DEQ 115, £ & ei'. 7-6-76; DEQ 25-1979., f. & ef. 7-

5-79; DEQ 7-1988; f. & cert. e£ 5-6-88; DEQ 1-2000(Temp), f. 2-15-00, cert. of 2-15-00

thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0132 by

DEQ 18-2003, f. & cert. ef.. 12-12-03

* * *

340-200-0040

State of Oregon Clean Air Act Implementation Plan

(1) This implementation plan, consisting of Volumes 2 and 3 of the State of Oregon Air

Quality Control Program, contains control strategies, rules and standards prepared by the

Department of Environmental Quality and is adopted as the state implementation plan

(SIP) of the State of Oregon pursuant to the federal Clean Air Act, 42 U.S.C.A 7401 to

7671 q.

(2) Except as provided in section (3), revisions to the SIP will be made pursuant to the

Commission's rulemaking procedures in division 11 of this chapter and any other

requirements contained in the SIP and will be submitted to the United States

Environmental Protection Agency for approval. The State Implementation Plan was last

modified by the Commission on February 22, October 17, 2007.

(3) Notwithstanding any other requirement contained in the SIP., the Department may:

(a) Submit to the Environmental Protection Agency any permit condition implementing a

rule that is part of the federally-approved SIP as a source-specific SIP revision after the

Department has complied with the public hearings provisions of 40 CFR 51.102 (July 1,

2002); and

(b) Approve the standards submitted by a regional authority if the regional authority

adopts verbatim any standard that the Commission has adopted, and submit the standards

to EPA for approval as a SIP revision.

NOTE: Revisions to the State of Oregon Clean Air Act Implementation Plan become

federally enforceable upon approval by the United States Environmental Protection

Agency. If any provision of the federally approved Implementation Plan conflicts with

any provision adopted by the Commission, the Department shall enforce the more

stringent provision.

Stat. Auth.: ORS 468.020

Stats. Implemented: ORS 468A. 035

Hist.: DEQ 35, f. 2-3-72, ef. 2-15-72; DEQ 54, f. 6-21-73, e£ 7-1-73; DEQ 19-1979, f. &

ef. 6-25-79; DEQ 21-1979, f. & e£ 7-2-79; DEQ 22-1980, f. & ef. 9-26-80; DEQ 11-

1981, f. & ef. 3-26-81; DEQ 14-1982, f. & of 7-21-82; DEQ 21-1982, f. & ef. 10-27-82;

Attachment A

Page 6 of 7

MD'
Attachment 3.1, pg. 7

DEQ 1-1983, f. & ef. 1-21-83; DEQ 6-1983, f. & ef. 4-18-83; DEQ 18-1984, f. & of 10-

16-84; DEQ 25-1984, f. & of .11-27-84; DEQ 3-1985, f. & of 2-1-85; DEQ 12-1985, f.

& ef 9-30-85; DEQ 5-1986, f. & ef. 2-21-86; DEQ 10-19.86, f. & e£ 5-9-86; DEQ 20-

1986, f. & ef. 11-7-86; DEQ 21-1986, f. & ef. 11-7-86; DEQ 4-1987, f. & ef. 3-2-87;

DEQ 5-1987, f. & ef. 3-2-87; DEQ 8-1987, f. & ef. 4-23-87; DEQ 21-1987, f. & of 12-

16-87; DEQ 31-1988, f. 12-20-88, cert. ef. 12-23-88; DEQ 2-1991, f & cert. of 2-14-91;

DEQ 19-1991, f. & cert. of 11-13-91; DEQ 20-1991, f. & cert. ef. 11-13-91; DEQ 21-

1991, f. & cert. of 11-13-91; DEQ 22-1991, f. & cert. ef. 11-13-91; DEQ 23-1991, f. &

cert. ef. 11-13-91; DEQ 24-1991, f. & cert. of 11-13-91; DEQ 25-1991, £ & cert. of. 11-

13-91; DEQ 1-1992, f. & cert. e£ 2-4-92; DEQ 3-1992, f. & cert. ef. 2-4-92; DEQ 7-

1992, f. & cert. ef. 3-30-92; DEQ 19-1992, f. & cert. ef. 8-11-92; DEQ 20-1992, f &

cert. of 8-11-92; DEQ 25-1992, f. 10-30-92, cont, e£ 11-1-92; DEQ 26-1992, f. & cert.

e£ 11-2-92; DEQ 27-1992, f. & cert. of. 11-12-92; DEQ 4-1993, f. & cert. of 3-10-93;

DEQ 8-1993, f. & cert. of 5-11-93; DEQ 12-1993, f. & cert. ef. 9-24-93; DEQ 15-1993,

f. & cert. ef. 11-4-93; DEQ 16-1993, f. & cert. ef. 11-4-93; DEQ 17-1993, f & cert. ef.

11-4-93; DEQ 19-1993, f. & cert. ef. 11-4-93; DEQ 1-1994, f. & cert. ef. 1-3-94; DEQ 5-

1994, f. & cert. ef. 3-21-94; DEQ 14-1994, f. & cert. ef. 5-31-94; DEQ 15-1994, £ 6-8-

94, cert. ef. 7-1-94; DEQ 25-1994, f. & cert. of 11-2-94; DEQ 9-1995, f. & cert. of. 5-1-

95; DEQ 10-1995, f. & cert. ef. 5-1-95; DEQ 14-1995, f. & cert. of. 5-25-95; DEQ 17-

1995, f & cert. ef. 7-12-95; DEQ 19-1995, f. & cert. ef. 9-1-95; DEQ 20-1995 (Temp), f.

& cert. ef. 9-14-95; DEQ 8-1996(Temp), f. & cert. ef. 6-3-96; DEQ 15-1996, f. & cert. ef.

8-14-96; DEQ 19-1996, f. & cert. ef. 9-24-96; DEQ 22-1996, f. & cert. of. 10-22-96;

DEQ 23-1996, f. & cert. cf. 11-4-96; DEQ 24-1996, f. & cert. of 11-26-96; DEQ 10-

1998, f. & cert. ef. 6-22-98; DEQ 15-1998, f. & cert. ef. 9-23-98; DEQ 16-1998, f. &

cert. ef. 9-23-98; DEQ 17-1998, f & cert. of 9-23-98; DEQ 20-1998, f. & cert. ef. 10-12-

98; DEQ 21-1998, f. & cert. ef. 10-12-98; DEQ 1-1999, f & cert. of 1-25-99; DEQ 5-

1999, £ & cert. of 3-25-99; DEQ 6-1999, f. & cert. ef. 5-21-99; DEQ 10-1999, f. & cert.

of. 7-1-99; DEQ 14-1999, f & cert. ef. 10-14-99, Renumbered from 340-020-0047; DEQ

15-1999, f. & cert. ef. 10-22-99; DEQ 2-2000, f. 2-17-00, cert. ef. 6-f 1-01; DEQ 6-2000,

f, & cert. ef. 5-22-00; DEQ 8-2000, f. & cert. of. 6-6-00; DEQ 13-2000, f. & cert. of. 7-

28-00; DEQ 16-2000, f & cert. ef. 10-25-00; DEQ 17-2000, f. & cert. of. 10-25-00; DEQ

20-2000 f. & cert. ef. 12-15-00; DEQ 21-2000, f. & cert. ef. 12-15-00; DEQ 2-2001, f &

cert. of 2-5-01; DEQ 4-2001, f. & cert. ef. 3-27-01; DEQ 6-2001, f. 6-18-01, cert. of 7-

1-01; DEQ 15-2001, f. & cert. of 12-26-01; DEQ 16-2001, f. & cert. of. 12-26-01; DEQ

17-2001, f. & cert. ef. 12-28-01; DEQ 4-2002, f. & cert. of 3-14-02; DEQ 5-2002, f. &

cert. of. 5-3-02; DEQ 11-2002, f. & cert. of 10-8-02; DEQ 5-2003, f. & cert.. ef. 2-6-03;

DEQ 14-2003, f. & cert. of. 10-24-03; DEQ 19-2003, f. & cert. ef. 12-12-03; DEQ 1-

2004, f& cert. ef. 4-14-04; DEQ 10-2004, f. & cert. of 12-15-04; DEQ 1-2005, f. &

cert. of. 1 .4-05; DEQ 2-2005,1. & cert. cf. 2-10-05; DEQ 4-2005, f. 5-13-05, cert. ef, 6-

1-05; DEQ 7-2005, f. & cert. ef. 7-12-05; DEQ 9-2005, f. & cert. ef. 9-9-05; DEQ 2-

2006, f & cert. ef. 3-14-06; DEQ 4-2006, f 3-29-06, cert. ef. 3-31-06; DEQ 3-2007, f. &

cert. e£ 4-12-07; DEQ 4-2007, f. & cert. of 6-28-07

Attachment A

Page 7 of 7

Attachment 3.2, pg. 1

340-011-0005

Definitions

Unless otherwise defined in this division, the words and phrases used in this division

have the same meaning given them in ORS 183.310, the rules of the Office of

Administrative Hearings, the Model Rules or other divisions in Oregon Administrative

Rules, Chapter 340, as context requires.

(1) "Commission" means the Environmental Quality Commission.

(2) "Department" means the Department of Environmental Quality.

(3) "Director" means the director of the department or the director's authorized delegates.

(4) " Rules of the Office of Administrative Hearings" means the Attorney General's

Rules, OAR 137-003-0501 through 137-003-0700.

(5) "Model Rules" or "Uniform Rules" means the Attorney General's Uniform and

Model Rules of Procedure, OAR Chapter 137, Division 001 (excluding OAR 137-001-

0008 through 137-001-0009), OAR Chapter 137, Division 003, and OAR Chapter 137,

Division 004, as in effect on January 1, 2006.

(6) "Participant" means the respondent, a person granted either party or limited party

status in the contested case under OAR 137-003-0535, an agency participating in the

contested case under OAR 137-003-0540, and the department.

(7) "Respondent" means the person to whom a formal enforcement action is issued.

(8) "Formal Enforcement Action" has the same meaning as defined in OAR 340, division

012.

Stat. Auth.: ORS 183.341 & 468.020

Stats. Implemented: ORS 183.341

340-011-0009

Incorporation of Attorney General's Uniform and Model Rules

The following Attorney General's Uniform and Model Rules of Procedure are adopted

and incorporated into this Division, except as otherwise provided in this Chapter: OAR

Chapter 137, Division 001 (excluding OAR 137-001-0008 through 137-001-0009), OAR

Chapter 137, Division 003, and OAR Chapter 137, Division 004, as in effect on January

1, 2006,

340-011-0510

Agency Representation by Environmental Law Specialist

(1) Environmental Law Specialists, and other department personnel as approved by the

director, are authorized to appear on behalf of the department and commission in

contested case hearings involving formal enforcement actions issued under OAR 340,

division 012, and revocation, modification, or denial of licenses, permits, and

certifications.

(2) Environmental Law Specialists or other approved personnel may not present legal

argument as defined under OAR 137-003-0545 on behalf of the department or

commission in contested case hearings.

(3) When the department determines it is necessary to consult with the Attorney General's

office, an administrative law judge will provide a reasonable period of time for an agency

Page 1 of 4
Attachment 3.2, pg. 2

representative to consult with the Attorney General's office and to obtain either written or

oral legal argument, if necessary.

Stat. Auth.: ORS 183.341, ORS 183,452 & ORS 468.020

Stats. Implemented: ORS 183.452

340-011-0515

Authorized Representative of Respondent other than a Natural Person in a

Contested Case Hearing

A corporation, partnership, limited liability company, unincorporated association, trust

and government body may be represented by either an attorney or an authorized

representative in a contested case hearing before an administrative law judge or the

commission to the extent allowed by OAR 137-003-0555.

Stat. Auth.: ORS 183.341 & ORS 468.020

Stats. Implemented: ORS 183.457

OAR 340-011-0573

Proposed Orders in Contested Cases

(1) Following the close of the record for a contested case hearing, the administrative law

judge will issue a proposed order. The administrative law judge will serve the proposed

order on each participant. A proposed contested case order must conform to the

requirements of OAR 137-003-0645(3).

(2) Within 15 days after a proposed contested case order is issued, a participant in the

contested case hearing may file a motion requesting that the administrative law judge

clarify or supplement a proposed order. The motion must specify why the participant

believes that the proposed order fails to conform to the requirements of OAR 137-003-

0645(3) and recommend changes to the order. The motion must be served on the

administrative law judge and all participants in the contested case hearing.

(3) The administrative law judge may grant or deny a motion filed under section (2) of

this rule within 15 days. If the motion is granted, the administrative law judge may take

the matter under advisement and reissue the proposed order unchanged or may issue an

amended proposed order. If the administrative law judge fails to act on the motion within

15 days, the motion is deemed denied by operation of law.

(4) The filing of a timely motion for clarification under section (2) of this rule tolls the

period for filing a Petition for Commission Review of the proposed contested case order

under OAR 340-011-0575. Tolling of the period begins on the day the motion is served

on the administrative law judge and ends on the day the motion is denied, deemed denied

by operation of law, or the proposed order is reissued without changes. If the

administrative law judge issues an amended proposed order, the amended order will be

treated as a new proposed order for purpose of the filling a timely Petition for

Commission Review under OAR 340-011-0575.

(5) The motion for clarification authorized by this rule is intended to alter the provisions

of OAR 137-003-0655 but not to eliminate the authority of the administrative law judge

to correct a proposed order in the manner specified in section (2) of that rule.

(6) A motion for clarification and any response to a motion for clarification will be part

of the record on appeal.

Page 2 of 4
Attachment 3.2, pg. 3

340-011-0575

Review of Proposed Orders in Contested Cases

(1) For purposes of this rule, filing means receipt in the office of the director or other

office of the department.

(2) Commencement of Review by the Commission: The proposed order will become final

unless a participant or a member of the commission files, with the commission, a Petition

for Commission Review within 30 days of service of the proposed order. The timely

filing of a Petition is a jurisdictional requirement and cannot be waived. Any participant

may file a petition whether or not another participant has filed a petition.

(3) Contents of the Petition for Commission Review. A petition must be in writing and

need only state the participant's or a commissioner's intent that the commission review

the proposed order. Each petition and subsequent brief must be captioned to indicate the

participant filing the document and the type of document (for example: Respondents

Exceptions and Brief; Department's Answer to Respondent's Exceptions and Brief).

(4) Procedures on Review:

(a) Exceptions and Brief: Within 30 days from the filing of a petition, the participant(s)

filing the petition must file written exceptions and brief. The exceptions must specify

those findings and conclusions objected to, and also include proposed alternative findings

of fact, conclusions of law, and order with specific references to the parts of the record

upon which the participant relies. The brief must include the arguments supporting these

alternative findings of fact, conclusions of law and order. Failure to take an exception to a

finding or conclusion in the brief, waives the participant's ability to later raise that

exception.

(b) Answering Brief: Each participant, except for the participant(s) filing that exceptions

and brief, will have 30 days from the date of filing of the exceptions and brief under

subsection (5)(a), in which to file an answering brief.

(c) Reply Brief: If an answering brief is filed, the participant(s) who filed a petition will

have 20 days from the date of filing of the answering brief under subsection (5)(b), in

which to file a reply brief.

(d) Briefing on Commission Invoked Review: When one or more members of the

commission wish to review the proposed order, and no participant has timely filed a

Petition, the chair of the commission will promptly notify the participants of the issue

that the commission desires the participants to brief. The participants must limit their

briefs to those issues. The chair of the commission will also establish the schedule for

filing of briefs. When the commission wishes to review the proposed order and a

participant also requested review, briefing will follow the schedule set forth in

subsections (a), (b), and (c) of this section.

(e) Extensions: The commission or director may extend any of the time limits contained

in section (5) of this rule. Each extension request must be in writing and filed with the

commission before the expiration of the time limit. Any request for an extension may be

granted or denied in whole or in part.

(f) Dismissal: The commission may dismiss any petition, upon motion of any participant

or on its own motion, if the participant(s) seeking review fails to timely file the

exceptions or brief required under subsection (5)(a) of this rule. A motion to dismiss

made by a participant must be filed within 45 days after the filing of the Petition. At the

Page 3 of 4
Attachment 3.2, pg. 4

time of dismissal, the commission will also enter a final order upholding the proposed

order.

(g) Oral Argument: Following the expiration of the time allowed the participants to

present exceptions and briefs, the matter will be scheduled for oral argument before the

commission.

(5) Additional Evidence: A request to present additional evidence must be submitted by

motion and must be accompanied by a statement showing good cause for the failure to

present the evidence to the administrative law judge. The motion must accompany the

brief filed under subsection (5)(a) or (b) of this rule. If the commission grants the motion

or decides on its own motion that additional evidence is necessary, the matter will be

remanded to an administrative law judge for further proceedings.

(6) Scope of Review: The commission may substitute its judgment for that of the

administrative law judge in making any particular finding of fact, conclusion of law, or

order except as limited by OAR 137-003-0655 and 137-003-0665.

(7) Service of documents on other participants: All documents required to be filed with

the commission under this rule must also be served upon each participant in the contested

case hearing. Service can be completed by personal service, certified mail or regular mail.

Stat. Auth.: ORS 183.341 & 468.020

Stats. Implemented: ORS 183.460, 183,464 & ORS 183.470

Page 4 of 4
Attachment 3.2, pg. 5

340-200-0040

State of Oregon Clean Air Act Implementation Plan

(1) This implementation plan, consisting of Volumes 2 and 3 of the State of Oregon Air

Quality Control Program, contains control strategies, rules and standards prepared by the

Department of Environmental Quality and is adopted as the state implementation plan

(SIP) of the State of Oregon pursuant to the federal Clean Air Act, 42 U.S.C.A 7401 to

7671q.

(2) Except as provided in section (3), revisions to the SIP will be made pursuant to the

Commission's rulemaking procedures in division 11 of this chapter and any other

requirements contained in the SIP and will be submitted to the United States

Environmental Protection Agency for approval. The State Implementation Plan was last

modified by the Commission on October 17, 2007.

(3) Notwithstanding any other requirement contained in the SIP, the Department may:

(a) Submit to the Environmental Protection Agency any permit condition implementing a

rule that is part of the federally-approved SIP as a source-specific SIP revision after the

Department has complied with the public hearings provisions of 40 CFR 51.102 (July 1,

2002); and

(b) Approve the standards submitted by a regional authority if the regional authority

adopts verbatim any standard that the Commission has adopted, and submit the standards

to EPA for approval as a SIP revision.

NOTE: Revisions to the State of Oregon Clean Air Act Implementation Plan become

federally enforceable upon approval by the United States Environmental Protection

Agency. If any provision of the federally approved Implementation Plan conflicts with

any provision adopted by the Commission, the Department shall enforce the more

stringent provision.

Stat. Auth.: ORS 468.020

Stats. Implemented: ORS 468A.035

Page 1 of I

Attachment 4

Evidence that the State followed the Administrative

Procedures Act

4.1 Public notice in the Secretary of State's Oregon Bulletin, June

1, 2007.

4.2 Certificate and Order for Filing Permanent Administrative

Rules, filed March 20, 2008.

Rulemak?t rNotices - June Bulletin t;.;:^:_ ^SrrEC: Attachment 4:1, pg. 1

OREGON SECRETARY OF STATE

Oregon State Archives

Oregon Bulletin'

June 1, 2007

Notices of Proposed Rulemaking and Proposed Rulemaking Hearings

The following agencies provide Notice of Proposed Rulemaking to offer interested parties reasonable opportunity to

submit data or views on proposed rulemaking activity. To expedite the rulemaking process, many agencies have set

the time and place for a hearing in the notice. Copies of rulemaking materials may be obtained from the Rules

Coordinator at the address and telephone number indicated.

Public comment may be submitted in writing directly to an agency or presented orally or in writing at the rulemaking

hearing. Written comment must be submitted to an agency by 5:00 p.m. on the Last Day for Comment listed, unless a

different time of day is specified. Written and oral comments may be submitted at the appropriate time during a

rulemaking hearing as outlined in OAR 137-001-0030.

Agencies providing notice request public comment on whether other options should be considered for achieving a

proposed administrative rule's substantive goals while reducing negative economic impact of the rule on business.

In Notices of Proposed Rulemaking where no hearing has been set, a hearing may be requested by 10 or more people

or by an association with 10 or more members. Agencies must receive requests for a public rulemaking hearing in

writing within 21 days following notice publication in the Oregon Bulletin or 28 days from the date notice was sent to

people on the agency mailing list, whichever is later. If sufficient hearing requests are received by an agency, notice

of the date and time of the rulemaking hearing must be published in the Oregon Bulletin at least 14 days before the

hearing.

''Auxiliary aids for persons with disabilities are available upon advance request. Contact the agency Rules

Coordinator listed in the notice information.

http:llarcweb.sos.state.or.us/rules/0607__Bulletinl0607 rulernaking_bulletin.html 3/18/2008
Rulemaking Notices - June Bulletin . " Attachment 4.1, pg. 2

Department of Environmental Quality

Chapter 34Q

Rule Caption: Clarification of Proposed Orders in Contested Enforcement Cases.

Date: Time: Location:

6-19-07 6:30 p.m. DEQ Headquarters

Conf. Rm. EQC-A, 10th Floor

811 SW Sixth Avenue

Portland, Oregon

Hearing Officer: Sarah Greenley, DEQ staff

Stat. Anth.: ORS 468.020, 183.341, 183.452

Stats. Implemented: ORS 468A.035, 468.070, 468.090-468.140, 183.341, 183.452, 183.460, 183.464, 183.470

Proposed Adoptions: 340-011-0009, 340-011-0573

Proposed Amendments: 340-011-0005, 340-011-0510, 340-011-0515, 340-011-0575, 340-200-0040

Last Date for Comment: 7-2-07, 5 p.m.

Summary: Adopt OAR 340-011-0573 and amend OAR 340-011-0575 to allow any party to a DEQ contested case

proceeding to file a motion requesting that the Administrative Law Judge (ALI) revise the proposed order so as to

provide a more clear and complete record on appeal to the Environmental Quality Commission (EQC).

Amend OAR 340-011-0510 to clarify that Environmental Law Specialists may provide lay representation on

behalf of the DEQ in contested case proceedings involving license, permit, or certification revocations, modifications,

and denials.

Correct a typographical error in OAR 340-011-0515 to reference the proper rule in the Oregon Administrative

Procedures Act regarding the extent to which parties may be represented by attorneys or other authorized

representatives in proceedings before ALJs or the EQC.

Adopt OAR 340-011-0009 and amend OAR 340-011-0005(5) to update the incorporation of portions of the

Attorney General's Model Rules and incorporate the Attorney General's Model Rules for Miscellaneous and Orders

in Other than Contested Cases.

Amend OAR 340-200-0040(2) to reflect the date that the rules are adopted by the EQC. This amendment is

required because these amendments, if adopted, will be submitted to the U.S. Environmental Protection Agency

(EPA) as a revision to the State Implementation Plan (SIP), which is a requirement of the Clean Air Act.

To submit comments or request additional information, please contact Sarah Greenley at the Department of

Environmental Quality (DEQ), 811 SW 6th Avenue, Portland, OR, 97204, toll free in Oregon at 800-452-4011,

extension 6927, or 503-229-6927, or at greenley.sarah@deq.state.or.us, or by fax at 503-229-5100, or visit DEQ's

website at http;/lwww.deq.state.or.uslprograms/enforcementlcontestcasesrulemkg.htm

Rules Coordinator: Larry McAllister

Address: Department of Environmental Quality, 811 SW Sixth Ave., Portland, OR 97204

Telephone:(503) 229-6412

http:/larcweb.sos.state,or.uslr-ules/0607_Bulletin/0607_rulemaking_bulletin.htznl 3/18/2008
Secretary of State

Certificate and Order for Filing

PERMANENT ADMINISTRATIVE RULES

I certify that the attached copies* are true, full and correct copies of the PERMANENT Rules adopted on October 17, 2007, by the

,

Environmental Quality Commission to be administered by DEQ

Agency and Division

Larry McAllister 503-229-6412

Agency Rules Coordinator Tel phone .

811 SW Sixth Avenue, Portland, OR 97204 meal ster.la -Lq.state.or.us

Address/email

to become effective upon filing. Rulemaking Notice was published in the June 2007 Oregon Bulletin.**

RULE CAPTION

Clarification of Proposed Orders in Contested Enforcement Cases

RULEMAKING ACTION

ADOPT: OAR 340-011-0009; OAR 340-011-0573

AMEND: OAR 340-011-0005; OAR 340-011-0510 '; OAR 340-011-0515; OAR 340-011-0575; OAR 340-200-0040

REPEAL: n/a

RENUMBER: n/a

AMEND AND RENUMBER: nla

Stat. Auth.: ORS 468.020, 183.341, 183.452

Other Authority: n/a

Stats. Implemented: ORS 468A.035, 468.070, 468.090-140, 183.341, 183.452, 183.460, 183.464, 183.470

RULE SUMMARY

Adopt OAR 340-011-0573 and amend OAR 340-011-0575 to allow any party to a DEQ contested case proceeding to file

a motion requesting that the Administrative Law Judge (AU) revise the proposed order so as to provide a more clear and

complete record on appeal to the Environmental Quality Commission (EQC).

Amend OAR 340-011-0510 to clarify that Environmental Law Specialists may provide lay representation on behalf of the

DEQ in contested case proceedings involving license, permit, or certification revocations, modifications, and denials.

Correct a typographical error in OAR 340-011-0515 to reference the proper rule in the Oregon Administrative Procedures

Act regarding the extent to which parties may be represented by attorneys or other authorized representatives in

proceedings before ALJs or the EQC.

Adopt OAR 340-011-0009 and amend OAR 340-011-0005(5) to update the incorporation of portions of the Attorney

General's Model Rules and incorporate the Attorney General's Model Rules for Miscellaneous and Orders in Other than

Contested Cases.

OAR Chapter 340

Administrative Rules Chapter Number

ARCHIVES DIVISION

SECRETARY OF STATE

MAR 2 0 2008
Attachment 4,2, pg. 2

Amend OAR 340-200-0040(2) to reflect the date that the rules are adopted by the EQC. This amendment is required

because these amendments, if adopted, will be submitted to the U.S. Environmental Protection Agency (EPA) as a

revision to the State Implementation Plan (SIP), which is a requirement of the Clean Air Act.

^ LMe,t€.th/ A.).trc q 2O

Authorized Sign r bate

(A2 W (ALL $

Printed name

*Copies include a photocopy adds certificate with paper and electronic copies of each rule listed in the Rulemaking Action.

**The Oregon Bulletin is published on the Ist of each mouth and updates the rule text found hi the Oregon Administrative Rules Compilation. Notice forms must bo submitted to the

Administrative Rules Unit, Oregon State Archives, 800 Summer Street NE, Salem, Oregon 97310 by 5:00 pm on the 15th day attic preceding month unless this deadline fails on a Saturday,

Sunday or legal holiday when Notice forms are accepted until 5;00 pm on the preceding workday

12-27-05 2
Attachment 4.2, pg. 3

Secretary of State

Certificate and Order for Piling

PERMANENT ADMINISTRATIVE RULES

Environmental Quality Commission to be administered by DEQ

Agency and Division

Larry McAllister 503-229-6412

Agency Rules Coordinator Telephone

811 SW Sixth Avenue, Portland, OR 97204 rncallister.larry(a},deq.state.or.us

Addresslcmail

to become effective upon filing. Rulemaking Notice was published, in the June 2007 Oregon Bulletin,**

RULE CAPTION

Clarification of Proposed Orders in Contested Enforcement Cases

RULEMAKING ACTION

ADOPT: OAR 340-011-0009; OAR 340-011-0573

AMEND: OAR 340-011-0005; OAR 340-011-0510; OAR 340-011-0515; OAR 340-011-0575; OAR 340-200-0040

REPEAL: n/a

RENUMBER: n/a

AMEND AND RENUMBER: n/a

Stat. Auth.: ORS 468.020, 183.341, 183.452

Other Authority: n/a.

Stats. Implemented: ORS 468A.035, 468.070, 468.090-140, 183.341, 183.452, 183.460, 183,464, 183.470

RULE SUMMARY

Adopt OAR 340-011-0573 and amend OAR 340-011-0575 to allow any party to a DEQ contested case proceeding to file

a motion requesting that the Administrative Law Judge (ALJ) revise the proposed order so as to provide a more clear and

complete record on appeal to the Environmental Quality Commission (EQC).

Amend OAR 340-011-0510 to clarify that Environmental Law Specialists may provide lay representation on behalf of the

DEQ in contested case proceedings involving license, permit, or certification revocations, modifications, and denials.

Correct a typographical error in OAR 340-011-0515 to reference the proper rule in the Oregon Administrative Procedures

Act regarding the extent to which parties may be represented by attorneys or other authorized representatives in

proceedings before ALJs or the EQC.

Adopt OAR 340-011 .0009 and amend OAR 340-011-0005(5) to update the incorporation of portions of the Attorney

General's Model Rules and incorporate the Attorney General's Model Rules for Miscellaneous and Orders in Other than

Contested Cases.

ye i 1®®g

I certify that the attached copies* are true, full and correct copies of the PERMANENT Rules adopted on October 17, 2'Q{^1 py h

OAR Chapter 340

Administrative Rules Chapter Number

MAU 2008 1

RECEIVED N.)

legislatwo Counsel's

Office
Attachment 4.2, pg. 4

Amend OAR 340-200-0040(2) to reflect the date that the rules are adopted by the EQC. This amendment is required

because these amendments, if adopted, will be submitted to the U.S. Environmental Protection Agency (EPA) as a

revision to the State Implementation Plan (SIP), which is a requirement of the Clean Air Act.

,Wecfjf^.A ti{aA 7mg,

Authorized Sign r Date

C^^yM LW-ter .

Printed name

*Copies include a photocopy of this certificate with paper and electronic copies of each rule listed in the Rulemaking Action.

**The Oregon Bulletin is published on the 1st of each month and updates the rule text found in the Oregon Administrative Rules Compilation. Notice forms must be submitted to the

Administrative Rules Unit, Oregon State Archives, 800 Summer StreetNE, Salem, Oregon 97310 by 5:00 pm on the 15th day of the preceding month unless this deadline falls on a Saturday,

Sunday or legal holiday when Notice forms are accepted until 5:00 pm on the preceding workday

.4

12-27-05 2
Attachment 5

Evidence of Adequate Public Notice

5.1 Affidavit of Publication: The Oregonian, Notice of May

17, 2007 publication.

Attachment 5.1, pg. 1

Tf)e OregonianEST. 1&5U

Practically- Indispensable.

1 320 SW Broadway.. Portland, OR 97201-3499

Affidavit of Publication

wesx. vt,_, duly sworn depose and say that I am the Principal Clerk Of The Publisher of The

Oregonian, a newspaper of general circulation, as defined by ORS 193.010 and 193.020, published in the city of Portland, in

Multnomah County, Oregon; that the advertisement, (the printed text of which is shown below or shown in the attached tear

sheet) was published without , interruption in the entire and regular issue The Oregonian or the issue on the following dates:

5/17/2007

2;fin

OFFICIAL SEAL.

ALAN COLLINS f

IJ ~°'^ NOTARY PUBLIC-OREGON

COMMISSION NO. 386700

MY COMMISSION EXPIRES DEC. 26,2008 ()

Principal Clerk ofj^he Pu,}SIisher:

Notary:

Ad Order Number: 0002186856

THE Oregon Department of Environmental Quality (DEQ) is proposing to revise OAR , chapter 340, division 11 (rules

regarding contested cases). DEQ proposes a rule that would allow both parties in contested cases to request that . Administrative Law Judges revise proposed orders in order to provide a clearer and more complete record on appeal to the

Environmental. Quality Commission. DEQ also proposes to clarify that Environmental Law Specialists may provide lay

representation on behalf of DEQ in contested case proceedings involving license, permit, or certification revocations,

modifications, and denials. .

DEQ is also proposing a revision to OAR chapter 340 division 200, rule 0040 (State of Oregon Clean Air Act Implementation

Plan). These amendments, if adopted, will be submitted to the U.S. Environmental Protection Agency as a revision to the

State Implementation Plan, which is a requirement of the Clean Air Act.

DEQ is conducting a hearing for this rulemaking on June 19, 2007, at 6:30 p.m., DEQ Headquarters, 811 SW 6th Ave., 10th

floor, Room EQCA, Portland, OR. The hearing will begin with a brief overview of the proposed rule changes, followed by an

opportunity for members of the public to provide oral and written comment. Comments on the proposed rulemaking may be

submitted in writing via mail, fax, or email (see contact information below) at any time prior to 5:00 pm Monday, July 2, 2007.

For further information, or for copies of the proposed changes, please go to http://www.oregon.govfDEQ/OCE/index.shtml, or

contact Sarah Greenley, DEQ Office of Compliance a. • fi 1: uuen-tN11 SW 6th Ave, Portland, OR,

greenley.sarah@deq.state.or,us , phone: -BOA 0 4 uw 1, - ,4 6° 7 u 03-229-6927, fax: 503-229-5100.

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Attachment 6

Certification of Public Hearing

See paragraph three of cover letter and Attachment 7.1

Attachment 7

Compilation of Public Comments and Department's

Response

7.1 Presiding Officer's Report for Rulemaking Hearings

dated June 19, 2007.

7.2 Compilation of Public Comment, October 18, 2007

Attachment 7.1, pg. 1

State of Oregon

Department of Environmental Quality Memorandum

Presiding Officer's Report

To: Environmental Quality Commission

From: Sarah Greenley, Office of Compliance and Enforcement

Re: Presiding Officer's Report for Rulemaking Hearing

Title of Proposal: Clarifications of Proposed Orders in Contested Enforcement Cases

Hearing Date and Time: June 19, 2007, 6:30 p.m.

Hearing Location: DEQ Headquarters, Portland, Oregon

The Department convened the rulemaking hearing on the proposal referenced above at 6:30 p.m.

and closed it at 7:00 p.m.

No one attended the hearing or testified about the rulemaldng.

Attachment C

Page 1 of 1

Attachment 7.2, pg. 1

Attachment B

Summary of Public Comment and Agency Response

Title of Rulemakiing: Clarification of Proposed Orders in Contested Enforcement Cases

Prepared by: Sarah Greenley

Date: October 18, 2007

Comment The public comment period opened May 16, 2007 (notice was mailed and

period emailed on May 16, 2007, published in the Oregonian on May 17, 2007, and

published in the Secretary of State's Bulletin on June 1, 2007). The

comment period closed July 2, 2007 at 5:00 p.m. . DEQ held a public hearing

on June 19, 2007, at 6:30 p.m. at DEQ Headquarters in Portland, Oregon.

Organization 14o written comments were submitted, and no one provided testimony at the

of comments hearing,

and

responses

Attachment 13

Page 1 of 1

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