PNW Metal Recycling, Inc. v. DEQ , 317 Or. App. 207 ( 2022 )

207
Argued and submitted May 20, 2021, DEQ’s challenged rule held invalid
January 26, petition for review allowed July 7, 2022 (370 Or 56)
See later issue Oregon Reports
PNW METAL RECYCLING, INC.,
dba Rivergate Scrap Metals,
dba RS Davis Recycling, dba PNW Auto Parts,
dba Orient Auto Parts and Recycling,
an Oregon corporation;
Schnitzer Steel Industries, Inc.,
an Oregon corporation;
and Pacific Recycling, Inc.,
an Oregon corporation,
Petitioners,
v.
OREGON DEPARTMENT OF
ENVIRONMENTAL QUALITY,
an agency of the State of Oregon,
Respondent.
Department of Environmental Quality
A171317
505 P3d 462
In this rule challenge under ORS 183.400(1), petitioners contend that a deci-
sion by the Oregon Department of Environmental Quality (DEQ) to reinterpret
the “auto dismantler exemption” to the solid waste permitting requirement con-
stitutes a “rule” within the meaning of the Oregon Administrative Procedures
Act, ORS 183.310 to 183.690, and is invalid because DEQ does not have rulemak-
ing authority on that subject and the agency did not conduct formal rulemaking
procedures. DEQ formerly interpreted the exemption to apply to an entire facility
that had an auto dismantler certificate, but has now concluded that it applies
only to the auto dismantling operations within a facility, such that scrap metal
recyclers that accept nonvehicular materials must obtain solid waste permits.
Held: The new interpretation was a “rule” because it was not necessarily required
by statute and it was generally applicable.
DEQ’s challenged rule held invalid.
Jon W. Monson argued the cause for petitioners. Also
on the joint opening brief were Nicole M. Swift and Cable
Huston LLP; and Crystal S. Chase, Kirk B. Maag, and Stoel
Rives LLP. Also on the joint reply brief was Nicole A. W.
Abercrombie.
208 PNW Metal Recycling, Inc. v. DEQ
Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Danielle F. Waterfield; and Jennifer Gates and Pearl
Legal Group, PC, filed the brief amicus curiae for Institute
of Scrap Recycling Industries, Inc.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
KAMINS, J.
DEQ’s challenged rule held invalid.
Cite as 317 Or App 207 (2022) 209
KAMINS, J.
In this rule challenge under ORS 183.400(1), peti-
tioners contend that a decision by the Oregon Department of
Environmental Quality (DEQ) to reinterpret one of its gov-
erning statutes regarding solid waste permitting constitutes
a “rule” within the meaning of the Oregon Administrative
Procedures Act (APA), ORS 183.310 to 183.690, and is
invalid because DEQ does not have rulemaking authority on
that subject and the agency did not conduct formal rulemak-
ing procedures. We agree with petitioners and conclude that
the new interpretation is a rule under the APA and there-
fore invalid.
The “rule” at issue relates to DEQ’s interpretation of
the so called “auto dismantler exemption” to the solid waste
permitting requirement. Oregon’s solid waste management
statutes require that “disposal site[s]” obtain a solid waste
disposal permit from DEQ. ORS 459.205(1). The definition
of “disposal site,” however, “does not include: * * * [a] site
operated by a dismantler issued a certificate under ORS
822.110.” ORS 459.005(8)(b)(D). That is the “auto dismantler
exemption.” The certificate referred to in the exemption is
an automobile dismantler certificate issued by the Oregon
Department of Transportation (ODOT).
Petitioners are scrap metal recyclers, whose busi-
ness it is to purchase unwanted automobiles as well as other
metal items, process them into scrap metal, then resell the
resulting materials. Until 2018, DEQ allowed them to oper-
ate without a solid waste disposal permit, pursuant to the
auto dismantler exemption, even though they also processed
nonvehicular items such as household appliances. However,
in late 2018, DEQ notified two of the petitioners that they
did not qualify for the exemption because they accepted non-
vehicular materials in addition to cars and asked them to
apply for solid waste disposal permits. In other words, DEQ
previously interpreted the exemption to apply to an entire
facility if it had a dismantler certificate, but the agency has
now concluded that the exemption only applies to the dis-
mantling operations within each facility.
DEQ’s decision is evidenced by two principle sources.
The first is an internal memorandum prepared by senior
210 PNW Metal Recycling, Inc. v. DEQ
DEQ staff in August 2018. That memorandum discussed a
large fire that occurred at an automobile dismantling facil-
ity (unrelated to petitioners) in Northeast Portland in March
2018. It also analyzed “potential gaps in environmental reg-
ulation of automobile dismantlers,” and proposed “potential
actions to fill those gaps.” One option it suggested:
“DEQ historically has applied the statutory exemption
from solid waste management regulation as applying to
an entire operation, even if that operation includes solid
waste other than automobiles. Nevertheless, the statutory
exemption could be applied narrowly to only cover auto dis-
mantling operations—leaving other solid waste activities
subject to regulation.”
The memorandum thus acknowledged that established DEQ
practice was to interpret the auto dismantler exemption to
apply to an entire facility, not just the auto dismantling
activities within that facility, and proposed changing that
practice.
Petitioners also cite statements made by DEQ staff
at a December 2018 meeting between agency representa-
tives and petitioner PNW Metal Recycling, Inc. During that
meeting, Program Manager Audrey O’Brien acknowledged
that, “historically, we’ve said, if you had the DMV certif-
icate, then you’re not defined as a disposal site by law,”
but explained that, “[w]hat we have clarified is that, for
those facilities that accept other types of waste materials
in addition to vehicles, they are a disposal site, and they
should be regulated under a DEQ permit.” DEQ represen-
tatives also indicated that the new interpretation would be
applied to all other similar businesses. Specifically, a Senior
Environmental Engineer stated, “we haven’t gotten to those
yet, but they—we will.” Petitioners contend that the memo-
randum combined with those statements demonstrate that
DEQ adopted a new, generally applicable policy that contra-
dicted its prior practices.
Under ORS 183.400, our review to determine the
validity of a rule is limited to “the face of the rule and the
law pertinent to it.” Smith v. TRCI, 259 Or App 11, 13, 312
P3d 568 (2013) (Smith 2013) (internal quotation marks omit-
ted). We may declare a rule invalid only if it violates the
Cite as 317 Or App 207 (2022) 211
state or federal constitutions, exceeds the agency’s statutory
authority, or was adopted in violation of applicable rulemak-
ing procedures. Id. The parties agree that if DEQ’s decision
constitutes a rule, it is invalid because DEQ does not have
authority to promulgate rules regarding solid waste permit-
ting,1 and the agency did not conduct formal rulemaking
procedures. The issue on appeal is thus limited to whether
the new interpretation constitutes a “rule” as defined by the
APA.
ORS 183.310(9) broadly defines a “rule” as “any
agency directive, standard, regulation or statement of gen-
eral applicability that implements, interprets or prescribes
law or policy, or describes the procedure or practice require-
ments of any agency.” However, an agency elaboration that
“merely explains what is necessarily required” by a validly
promulgated rule is not itself a rule. Smith 2013, 259 Or
App at 25 (citation omitted). Conversely, an “interpretive
amplification or refinement of an existing rule,” does con-
stitute a rule. Id.; see also Smith v. Dept. of Corrections, 276
Or App 862, 871, 369 P3d 1213 (2016) (explaining that rules
include “policy-based” interpretations of “an existing rule
which could have been otherwise construed”). To determine
whether a given interpretation is “necessarily required” as
opposed to an “amplification or refinement,” we consider
whether “the existing rule is susceptible to a reasonable
interpretation other than that given by the agency.” Smith
2013, 259 Or App at 25. In sum, to be a “rule,” the chal-
lenged agency directive must be (1) of “general applicability,”
and (2) not “necessarily required” by a statute or validly pro-
mulgated rule.
ORS 459.005(8) defines “disposal site” as follows:
“(a) ‘Disposal site’ means land and facilities used for
the disposal, handling or transfer of, or energy recovery,
material recovery and recycling from solid wastes, includ-
ing but not limited to dumps, landfills, sludge lagoons,
sludge treatment facilities, disposal sites for septic tank
pumping or cesspool cleaning service, transfer stations,
energy recovery facilities, incinerators for solid waste
1
That rulemaking authority rests with the Environmental Quality
Commission. ORS 459.045.
212 PNW Metal Recycling, Inc. v. DEQ
delivered by the public or by a collection service, compost-
ing plants and land and facilities previously used for solid
waste disposal at a land disposal site.
“(b) ‘Disposal site’ does not include:
“* * * * *
“(D) A site operated by a dismantler issued a certifi-
cate under ORS 822.110.”
Petitioners contend that the ordinary meaning of
“site” indicates that the legislature intended for the exemp-
tion to apply to an entire facility if that facility has a disman-
tler certificate. DEQ, on the other hand, argues that because
subsection (a) defines “disposal site” as “land and facilities
used for” disposal activities, the legislature intended to limit
the permit exemption to only those “land and facilities used
for” automobile dismantling, requiring a permit for any
other solid waste disposal even if it occurs at a facility that
also dismantles automobiles. Both interpretations are rea-
sonable, as demonstrated by DEQ’s longstanding adherence
to the interpretation it now rejects. Because more than one
interpretation is plausible, the most recent interpretation is
not “necessarily required” by the statute. DEQ’s decision to
change its interpretation is a “new exercise of agency dis-
cretion” which must be promulgated as a rule to be valid.
Smith 2013, 259 Or App at 25; see also Fulgham v. SAIF,
63 Or App 731, 735-36, 666 P2d 850 (1983) (concluding that
the Workers’ Compensation Board’s attempt to reverse its
“long-standing procedures” of treating a request for a hear-
ing date as an adequate response to an order to show case
was a rule).
DEQ also argues that the new interpretation is not
“generally applicable” because it only applies to petitioners
PNW Metal Recycling, Inc. and Schnitzer Steel Industries,
Inc. However, the August 2018 memorandum, which did
not specifically discuss petitioners’ facilities, demonstrates
that the reason DEQ reconsidered its interpretation was
to increase oversight of the entire industry, and then the
agency decided to enforce it against petitioners first. As its
representatives acknowledged, DEQ intends to eventually
apply the new interpretation to and require solid waste
permits for all scrap metal recyclers in Oregon that accept
Cite as 317 Or App 207 (2022) 213
vehicles and nonvehicles. Petitioners have demonstrated
that the new interpretation is “generally applicable.” See
Smith v. Board of Parole, 250 Or App 345, 349, 284 P3d 1150
(2012) (concluding that a notice-of-rights form was of general
applicability because it applied identically to “all inmates in
a particular category or class of hearings”).
DEQ finally contends that petitioners have failed
to identify a “directive, standard, regulation, or statement,”
because the purported rule is not embodied in any official
document. Typically, our review of “the face of the rule and
the law pertinent to it” contemplates situations where the
agency announced its policy in written form. Smith 2013,
259 Or App at 13. The burden is on petitioners to identify
the purported rule and prove that it qualifies as such under
the APA. Smith v. Dept. of Corrections, 300 Or App 309,
311-12, 454 P3d 12 (2019) (Smith 2019). Here, despite the lack
of a single document embodying the rule, petitioners point
to several “statements,” including a memorandum and oral
statements to verify its existence. The August 2018 mem-
orandum,2 together with DEQ officials’ unequivocal state-
ments, demonstrate that DEQ substantially reinterpreted
the automobile exemption across the board. Indeed, the fact
of this policy shift is not disputed by DEQ in this proceeding.
We are thus able to clearly identify the rule without sifting
through extensive policies or transcripts. Smith 2019, 300
Or App at 311. Where, as here, an agency makes a gener-
ally applicable, policy-based decision, it cannot evade formal
rulemaking requirements merely by failing to memorialize
it in writing.
DEQ’s new interpretation of the “auto dismantler
exemption” reverses its long-standing practice without com-
plying with the APA’s rulemaking procedures. Because
that action is “generally applicable” and not “necessarily
required” by the statute, it constitutes a “rule” as defined by
ORS 183.310(9) and is thus invalid.
DEQ’s challenged rule held invalid.
2
Although the interagency memorandum is not itself a rule, see ORS
183.310(9)(d), it evinces the existence of the DEQ policy.