DAPC Program Update SeminarDecember 6, 2011

DAPC RULES UPDATE

TODAY'S TOPICS

The Rule Process – an Overview

Senate Bill 2/Executive Order 2011-01K

2011 – Year in Review

In the Hopper

SIP Conduit

THE RULE PROCESS – AN OVERVIEW

Ohio Revised Code = Laws/Statutes

Ohio Administrative Code = Rules/Regulations

DAPC Makes Rules!

469 Rules in Chapter 3745 of the Administrative Code

THE RULE PROCESS – AN OVERVIEW

Two Paths – 5 year review and Non-5yr

5 Year Review What is it? – ORC 119.032 Determine if rule is....

• Necessary: Changes or No Change

• Unnecessary: Rescission

Must review whole rule.

• Make content changes, but also;

• Fix Typos, Admin Data, IBR’s, etc...

Non-5yr: typically just a content change

THE RULE PROCESS – AN OVERVIEW

Typical Rule Schedule (180 – 255 Days) Content Development – Prior to rule path Draft Rule (IP) Comment Period Proposal Period

• Public Hearing

• JCARR jurisdiction - 65 days Regular, 90 Days No-change JCARR = Joint Committee on Agency Rule Review JCARR jurisdiction includes JCARR hearing No public hearing for no-change rules

THE RULE PROCESS – AN OVERVIEW

Typical Rule Path – continued Final File Package• Package Review and Sign-off (15-30 days)• Final file (can be done first day after JCARR jurisdiction is over)• First possible effective date is 10 days after final filing

Revising (if necessary)• If change necessary within the first 35 days of JCARR

jurisdiction• Does not lengthen timeframe

Refiling (if necessary)• If change necessary after the first 35 days of JCARR jurisdiction• Could lengthen timeframe considerably (30 day JCARR

extension) Also Emergency and No-Change

GUIDANCE DOCUMENTS

DAPC has developed many guidance documents

“Rule Generating and Processing Guidance”

“Rule Drafting and Formatting Guidance”

Rule package document templates

Additional outside guidance available

LSC Rule Drafting Manual

RAS/ERF Training Manuals

EXECUTIVE ORDER 2011-01K

Became effective on January 10, 2011 and will remain effective even after the SB 2 CSI provisions apply

Created the Common Sense Initiative (CSI)

Under the EO, agencies are to “promote transparency, consistency, predictability, and flexibility in regulatory activities.”

The Executive Order directs agencies to continually evaluate regulations to ensure the regulatory objectives are being accomplished. Agencies are also instructed to “amend or rescind rules that are unnecessary, ineffective, contradictory, redundant, inefficient and needlessly burdensome, have a negative unintended consequence, or unnecessarily impede business growth.”

EXECUTIVE ORDER 2011-01K

Rule Drafting

The Executive Order specifically calls for agencies to establish business regulations via rule-making procedures and to write rules, regulations, and related communication in plain English so that they may be easily understood.

Determining Impact on Small Business

The Executive Order further requires that, before filing a rule that economically impacts small business with JCARR, agencies must determine the rule’s real or potential impact on small business and comply with CSIO requirements for determining that impact.

EXECUTIVE ORDER 2011-01K

Balancing Rule Objectives

The EO specifies that the objectives of rules should be properly balanced with the costs of compliance by regulated parties, and that the perspectives of small businesses should be considered as early as possible in the rulemaking process.

Agencies must respond to any recommendations for improved regulations issued by the Lieutenant Governor through the CSIO. Recommendations that are adopted should be identified, and an explanation should be provided for those recommendations the agency elects not to implement.

SENATE BILL 2

Subsequent to the issuance of the Executive Order, the Ohio Legislature enacted Amended Substitute Senate Bill 2 (SB2).

SB2 more broadly seeks to identify and limit adverse impacts on businesses regardless of size.

Although SB2 itself was effective beginning June 7, 2011, many provisions will not be effective until January 1, 2012.

SB2 codifies the creation of the CSIO, alters the procedure for promulgation of agency rules, and expands the jurisdiction of JCARR.

Under SB2, a rule that might have an adverse impact on business is subject to additional analysis by the agency proposing it, the CSIO, and JCARR.

COMMON SENSE INITIATIVE OFFICE

Under SB2 the CSIO has three primary tasks:

the creation of a process for people to comment on a proposed or effective rule’s adverse impact on business,

the development of an instrument to be used to evaluate rules that may have an adverse impact on business, and

the evaluation of draft rules and transmission of recommendations to eliminate or reduce any adverse impact on business.

SENATE BILL 2

For purposes of these requirements, a rule has an adverse impact if it…

requires an authorization before engaging in or operating a business;

imposes a penalty or sanction (criminal or civil), or creates a cause of action for failure to comply; or

requires specific expenditures or the reporting of information as a condition of compliance.

JCARR PROCESS

All processes will remain the same, except for the addition of the Business Impact Analysis being added to the original filing package on the ERF.

If JCARR finds that a rule should have a Business Impact Analysis and one has not been filed with the rule, then JCARR can reject the rule, and it is like the rule filing never happened. The agency will have to start again.

JCARR will be determining the balance between the rule objective and the adverse impacts, the added 6th prong.

2011 – YEAR IN REVIEW

New Rules Greenhouse Gas Tailoring Rules – OAC Rules 3745-

31-34 and 3745-77-11

Notable Adoptions OAC Chapter 3745-18 – 5yr Review, Removal of

Limits for Permanently Closed Facilities OAC Rule 3745-14-05 – Return of 240 Allowances to

Affected Sources OAC Chapter 3745-21 – Phase 3 VOC RACT; 3 new

CTG Rules Hundreds of Minor Changes due to 5-yr review of 7

Other Chapters

RULE ACTIONS – 5 YR REVIEWS2005 - 2011

2005 2006 2007 2008 2009 2010 20110

50

100

150

200

250

300

175

246

15

69

112

155

277

Rule Actions

5 Yr Reviews

RULE ACTIONS – NEW RULES2005 - 2011

2005 2006 2007 2008 2009 2010 20110

20

40

60

80

100

120

30

24

117

39

17

4

21

Rule Actions

New Rules

TOTAL RULE ACTIONS2005 - 2010

2005 2006 2007 2008 20090

50

100

150

200

250

300

350

Rule Actions

Number of Rule Actions5 Yr ReviewsNew Rules

COMING UP IN 2012

5 Year review: Time to Reset, however..... 2011 was largest Year yet (300+ Rule Actions) Still 3 Chapters that aren’t done from old cycle (3745-

31, 3745-102, 3745-114) Rules in 9 Different Chapters, 50+ rules, set to start in

2012

2012 is not going to be a slow rule year!

IN THE HOPPER – WHAT ARE WE WORKING ON AS OF 12/6/11

Asbestos Emission Control (3745-20): Public Hearing on January 9, 2012

PM Rule Fix (3745-17-11): Adopting minor rule change in Early December to make rule federally approvable

Small Business Assistance (3745-79): Public Hearing on January 9, 2012

Open Burning Rules (3745-19): Public Hearing in Mid January, 2012

SIP APPROVALS IN 2011

OAC Rule 3745-21-25: Approved 7/13/11, 76 FR 41086, Federally effective 8/12/11 – VOC RACT for Reinforced Plastic Composites Industry

OAC Rule 3745-21-07: Approved 8/19/11, 76 FR 51091, Federally effective 9/19/11 – Photo Reactive Materials. Replaces 1999 version of the rule in the SIP.

Cincinnati Redesignation to Attainment for 1997 PM 2.5 Annual Standard: Approved 10/19/11, 76 FR 64825, Likely Federally Effective 12/19/11

Thank you!