OAR 345-027-0371
Proposed Order, Requests for Contested Case and Council’s Final Decision on Requests for Amendment Under Type A Review
(1)
No later than 30 days after the Council has reviewed the draft proposed order and considered all comments received on the record of the public hearing under 345-027-0367 (Public Comment and Hearing on the Draft Proposed Order for Requests for Amendment Under Type A Review), the Department must issue a proposed order recommending approval, modification or denial of the request for amendment to the site certificate. The Department must consider any oral comments made at the public hearing, written comments received before the close of the record of the public hearing, agency consultation, and any Council comments. The Department may issue the proposed order at a later date, but the Department must, no later than 30 days after the Council has reviewed the draft proposed order and considered all comments received on the record of the public hearing, notify the certificate holder in writing of the reasons for the delay.(a)
Sending public notice of the proposed order by mail or email to:(A)
All persons on the Council’s general mailing list as defined in OAR 345-011-0020 (Agendas for Regular Meetings);(B)
All persons on any special list established for the facility;(C)
The reviewing agencies for the facility, as defined in OAR 345-001-0010 (Definitions)(52); and(D)
The property owners on the updated list provided under OAR 345-027-0360 (Preliminary Request for Amendment)(1)(f); and(3)
Notice of the proposed order must include:(a)
A description of the facility and the facility’s general location;(b)
A description of the process for requesting a contested case;(c)
The physical address and website where the public may review copies of the proposed order; and(d)
The name, address, email address and telephone number of the Department representative to contact for more information.(4)
On the same date the notice of proposed order as described in section (2) is issued, the Department must send a notice of the opportunity to request a contested case by mail or email to the certificate holder, and to all persons who commented in person or in writing on the record of the public hearing as described in OAR 345-027-0367 (Public Comment and Hearing on the Draft Proposed Order for Requests for Amendment Under Type A Review). The notice must include the deadline for requesting a contested case and restatements of sections (5) through (9) of this rule.(5)
Only those persons, including the site certificate holder, who commented in person or in writing on the record of the public hearing described in OAR 345-027-0367 (Public Comment and Hearing on the Draft Proposed Order for Requests for Amendment Under Type A Review) may request a contested case proceeding on the proposed order for an amendment to the site certificate. To properly raise an issue in a request for a contested case proceeding on the proposed order for an amendment, the issue must be within the jurisdiction of the Council, and the person must have raised the issue in person or in writing on the record of the public hearing, unless the Department did not follow the requirements of OAR 345-027-0367 (Public Comment and Hearing on the Draft Proposed Order for Requests for Amendment Under Type A Review), or unless the action recommended in the proposed order differs materially from the draft proposed order, including any recommended conditions of approval, in which case the person may raise only new issues within the jurisdiction of the Council that are related to such differences. If a person has not raised an issue at the public hearing with sufficient specificity to afford the decision maker an opportunity to respond to the issue, the Council may not grant a contested case proceeding for that issue. To have raised an issue with sufficient specificity, the person must have presented facts at the public hearing that support that person’s position on the issue.(6)
Contested case requests must be submitted in writing and must be received by the Department by a specified deadline that is at least 30 days from the date of notice in section (4) of this rule. Contested case requests must include:(a)
The person’s name, mailing address and email address and any organization the person represents;(b)
A short and plain statement of the issue or issues the person desires to raise in a contested case proceeding;(c)
A statement that describes why the Council should find that the requester properly raised each issue, as described in section (7) of this rule, including a specific reference to the person’s prior comments to demonstrate that the person raised the specific issue or issues on the record of the public hearing, if applicable;(d)
A statement that describes why the Council should determine that each identified issue justifies a contested case, under the evaluation described in section (9) of this rule;(e)
Name and address of the person’s attorney, if any;(f)
A statement of whether the person’s request to participate in a contested case is as a party or a limited party, and if as a limited party, the precise area or areas in which participation is sought;(g)
If the person seeks to protect a personal interest in the outcome of the proceeding, a detailed statement of the person’s interest, economic or otherwise, and how such interest may be affected by the results of the proceeding;(h)
If the person seeks to represent a public interest in the results of the proceeding, a detailed statement of such public interest, the manner in which such public interest will be affected by the results of the proceeding, and the person’s qualifications to represent such public interest; and(i)
A statement of the reasons why others who commented on the record of the public hearing cannot adequately represent the interest identified in subsections (h) or (i) of this section.(7)
Before considering whether an issue justifies a contested case proceeding under section (9) of this rule, the Council must determine that the person requesting a contested case commented in person or in writing on the record of the public hearing and properly raised each issue included in the request. To determine that a person properly raised each issue included in the request, the Council must find that:(a)
The person making the contested case request raised the issue on the record of the public hearing described in OAR 345-027-0367 (Public Comment and Hearing on the Draft Proposed Order for Requests for Amendment Under Type A Review) with sufficient specificity to afford the Council, the Department, and the certificate holder an adequate opportunity to respond to the issue;(b)
The Department did not follow the requirements of OAR 345-027-0367 (Public Comment and Hearing on the Draft Proposed Order for Requests for Amendment Under Type A Review); or(c)
If the action recommended in the proposed order, including any recommended conditions of approval, differs materially from the action recommended in the draft proposed order, the contested case request identified new issues that are related to such material differences.(8)
If the Council finds that the person requesting a contested case failed to comment in person or in writing on the record of the public hearing or failed to properly raise any issue, as described in section (7) of this rule, the Council must deny that person’s contested case request. If the Council finds that the person requesting a contested case commented in person or in writing on the record of the public hearing and properly raised one or more issues, the Council’s determination of whether an issue justifies a contested case, as described in section (9) of this rule, must be limited to those issues the Council finds were properly raised.(9)
After identifying the issues properly raised the Council must determine whether any properly raised issue justifies a contested case proceeding on that issue. To determine that an issue justifies a contested case proceeding, the Council must find that the request raises a significant issue of fact or law that is reasonably likely to affect the Council’s determination whether the facility, with the change proposed by the amendment, meets the applicable laws and Council standards included in chapter 345 divisions 22, 23 and 24. If the Council does not have jurisdiction over the issue raised in the request, the Council must deny the request.(10)
The Council must take one of the following actions when determining if a request identifying one or more properly raised issues justifies a contested case proceeding:(a)
If the Council finds that the request identifies one or more properly raised issues that justify a contested case proceeding, the Council must conduct a contested case proceeding according to the applicable provisions of OAR 345-015-0012 (Filing and Service of Documents in a Contested Case) to 345-015-0014 (Contested Case Notices) and 345-015-0018 (Authorized Representative) to 345-015-0085 (Hearing Officer’s Proposed Contested Case Order). The Council must identify the contested case parties and the issues each contested case party may participate on. The parties to a contested case proceeding must be limited to those persons who commented on the record of the public hearing and who properly raised issues in their contested case request that the Council found sufficient to justify a contested case, except that the certificate holder is an automatic party to a contested case. The issues a party to a contested case proceeding may participate on must be limited to those issues that party properly raised in its contested case request that the Council found sufficient to justify a contested case, except that the certificate holder may participate on any issue the Council found sufficient to justify a contested case proceeding;(b)
If the Council finds that the request identifies one or more properly raised issues that an amendment to the proposed order, including modification to conditions, would settle in a manner satisfactory to the Council, the Council may deny the request as to those issues and direct the Department to amend the proposed order and send a notice of the amended proposed order to the persons described in section (4) of this rule. Only the certificate holder and those persons who commented on the record of the hearing may, in a writing received by the Department within 30 days after the Department issues the notice of the amended proposed order, request a contested case proceeding limited to issues related to the amendment to the proposed order. As described in section (9) of this rule, the Council must determine whether any issue identified in the request for a contested case proceeding justifies a contested case proceeding. A person’s contested case request under this subsection must include:(A)
The person’s name, mailing address and email address;(B)
A statement of the contested issues related to the amendment to the proposed order, including facts believed to be at issue; and(C)
A statement that describes why the Council should find an issue justifies a contested case, as described in section (8) of this rule; and(c)
If the Council finds that the request does not identify a properly raised issue that justifies a contested case proceeding, the Council must deny the request. In a written order denying the request, the Council must state the basis for the denial. The Council must then adopt, modify or reject the proposed order based on the considerations described in OAR-345-027-0375 (Scope of Council’s Review). In a written order the Council must either grant or deny issuance of an amended site certificate. If the Council grants issuance of an amended site certificate, the Council must issue an amended site certificate, which is effective upon execution by the Council Chair and by the certificate holder.(11)
If there is no request for a contested case proceeding as described in section (6) or subsection (10)(b) of this rule, the Council, may adopt, modify or reject the proposed order based on the considerations described in OAR 345-027-0375 (Scope of Council’s Review). In a written order, the Council must either grant or deny issuance of an amended site certificate. If the Council grants issuance of an amended site certificate, the Council must issue an amended site certificate, which is effective upon execution by the Council Chair and by the certificate holder.(12)
Judicial review of the Council’s final order either granting or denying an amended site certificate is as provided in ORS 469.403 (Rehearing on approval or rejection of application for site certificate or amendment).
Source:
Rule 345-027-0371 — Proposed Order, Requests for Contested Case and Council's Final Decision on Requests for Amendment Under Type A Review, https://secure.sos.state.or.us/oard/view.action?ruleNumber=345-027-0371.