PNW Metal Recycling, Inc. v. DEQ

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.