OAR 345-027-0390: Request by Any Person for Amendment to Apply Later-Adopted Laws

(1) Any person, including the Department, may request an amendment of a site certificate to apply laws, including local government ordinances, statutes, rules or Council standards, adopted after the date the site certificate was executed, if the person contends failure to apply the laws results in a significant threat to the public health or safety or to the environment. (2) To request an amendment to apply later-adopted laws under this rule, the person must submit a preliminary request for amendment to the Department with the information described in OAR 345-027-0360(1)(a), (c), (d), and the following: (a) Identification of the laws that the person seeks to apply to the facility; and (b) The particular facts that the person believes clearly show a significant threat to the public health, safety or the environment that requires application of the later adopted laws. (3) If the Department receives a preliminary request for amendment to apply later-adopted laws as described in this rule from any person other than the certificate holder, the Department must send a copy of the request to the certificate holder. The transmittal must include a deadline by which the certificate holder must submit a response to the Department. In its response, the certificate holder must state whether it agrees that there is a clear showing of a significant threat to the public health, safety or the environment that requires application of the later-adopted laws. (a) If the certificate holder concludes the later-adopted laws should be applied to the facility, the Council must review the request to apply later-adopted laws as a complete request for amendment in accordance with section (5) of this rule. (b) If the certificate holder concludes that the laws should not be applied to the facility, or if the certificate holder does not respond with its conclusion before the specified deadline, the Department must ask the Council to determine whether the request clearly shows a significant threat to the public health, safety or the environment that requires application of the later-adopted laws. (A) If the Council determines there is not a clear showing of a significant threat to the public health, safety or the environment that requires application of the later adopted laws, the Council must deny the request to apply later-adopted laws. (B) If the Council determines there is a clear showing of a significant threat to the public health, safety or the environment that requires application of the later adopted laws, the Council must review the request to apply later-adopted laws as a complete request for amendment in accordance with section (5) of this rule. (4) For the purposes of OAR 345-027-0363, a preliminary request for amendment to apply later-adopted laws under this rule is considered a complete request for amendment on: (a) The date the request is received by the Department, if the request to apply later-adopted laws is made by the certificate holder; (b) The date the response described in subsection (3)(a) of this rule is received by the Department, if the request to apply later-adopted laws is made by a person other than the certificate holder, and if the certificate holder responds as described in subsection (3)(a); or (c) The date of the Council’s determination under paragraph (3)(b)(B) or this rule, if the request to apply later-adopted laws is made by a person other than the certificate holder, and if the certificate holder responds as described in subsection (3)(b) of this rule or does not respond before the specified deadline under section (3) of this rule. (5) After receiving a complete request for amendment under section (4) of this rule, the Council must review the request for amendment as described in OAR 345-027-0365, 345-027-0367, 345-027-0371 and 345-027-0375, except that: (a) If the Department recommends approval or modified approval of the requested amendment, the Department must include in the proposed order described in OAR 345-027-0371 any new or modified site certificate conditions necessary to assure compliance with the laws applied to the facility under the proposed order; (b) If the Department in its proposed order recommends approval or modified approval of the requested amendment, the certificate holder may, by written request submitted to and received by the Department within 30 days after the Department issues the proposed order, ask the Council to hold a contested case proceeding on the proposed order. In the request, the certificate holder must provide a description of the issues to be contested and a statement of the facts believed to be at issue. If the certificate holder requests 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 limited to the issues stated by the certificate holder; and (c) The Council may only include new conditions in a site certificate amended under this rule if the Council finds that the conditions are necessary based upon a clear showing of a significant threat to the public health, safety or the environment.