Or. Admin. Code § 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, 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.
(2) Concurrent with
issuing the proposed order, the Department must issue public notice of the
proposed order by:
(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;
(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(52);
and
(D) The property owners on the
updated list provided under OAR
345-027-0360(1)(f);
and
(b) Posting an
announcement of the proposed order on the Department's website.
(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. 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 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, 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 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; 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 to
345-015-0014 and
345-015-0018 to
345-015-0085. 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. 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. 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.
Notes
Statutory/Other Authority: ORS 469.470
Statutes/Other Implemented: ORS 469.405
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