Current through Register Vol. 63, No. 3, March 1, 2024
(1) For purposes of this rule, filing means
receipt in the office of the director or other office of DEQ.
(2) Commencement of Review by the Commission:
The proposed order will become final unless a participant or a member of the
commission files a Petition for Commission Review within 30 days of service of
the proposed order. The timely filing of a Petition is a jurisdictional
requirement and cannot be waived. Any participant may file a petition whether
or not another participant has filed a petition.
(3) Contents of the Petition for Commission
Review. A petition must be in writing and need only state the participant's or
a commissioner's intent that the commission review the proposed order. Each
petition and subsequent brief must be captioned to indicate the participant
filing the document and the type of document (for example: Respondents
Exceptions and Brief; DEQ's Answer to Respondent's Exceptions and Brief).
(4) Procedures on Review:
(a) Exceptions and Brief: Within 30 days from
the filing of a petition, the participant(s) filing the petition must file
written exceptions and brief. The exceptions must specify those findings and
conclusions objected to, and also include proposed alternative findings of
fact, conclusions of law, and order with specific references to the parts of
the record upon which the participant relies. The brief must include the
arguments supporting these alternative findings of fact, conclusions of law and
order. Failure to take an exception to a finding or conclusion in the brief,
waives the participant's ability to later raise that exception.
(b) Answering Brief: Each participant, except
for the participant(s) filing that exceptions and brief, will have 30 days from
the date of filing of the exceptions and brief under subsection (4)(a), in
which to file an answering brief.
(c) Reply Brief: If an answering brief is
filed, the participant(s) who filed a petition will have 20 days from the date
of filing of the answering brief under subsection (4)(b), in which to file a
reply brief.
(d) Briefing on
Commission Invoked Review: When one or more members of the commission wish to
review the proposed order, and no participant has timely filed a Petition, the
chair of the commission will promptly notify the participants of the issue that
the commission desires the participants to brief. The participants must limit
their briefs to those issues. The chair of the commission will also establish
the schedule for filing of briefs. When the commission wishes to review the
proposed order and a participant also requested review, briefing will follow
the schedule set forth in subsections (a), (b) and (c) of this section.
(e) Extensions: The commission or
director may extend any of the time limits contained in section (4) of this
rule. Each extension request must be in writing and filed with the commission
before the expiration of the time limit. Any request for an extension may be
granted or denied in whole or in part.
(f) Dismissal: The commission may dismiss any
petition, upon motion of any participant or on its own motion, if the
participant(s) seeking review fails to timely file the exceptions or brief
required under subsection (4)(a) of this rule. A motion to dismiss made by a
participant must be filed within 45 days after the filing of the Petition. At
the time of dismissal, the commission will also enter a final order upholding
the proposed order.
(g) Oral
Argument: Following the expiration of the time allowed the participants to
present exceptions and briefs, the matter will be scheduled for oral argument
before the commission.
(5) Additional Evidence: A request to present
additional evidence must be submitted by motion and must be accompanied by a
statement showing good cause for the failure to present the evidence to the
administrative law judge. The motion must accompany the brief filed under
subsection (4)(a) or (b) of this rule. If the commission grants the motion or
decides on its own motion that additional evidence is necessary, the matter
will be remanded to an administrative law judge for further proceedings.
(6) Scope of Review: The
commission may substitute its judgment for that of the administrative law judge
in making any particular finding of fact, conclusion of law, or order except as
limited by ORS 183.650 and OAR
137-003-0665.
(7) All documents filed with the
commission under this rule must also be copied upon each participant in the
contested case hearing.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.460, 183.464 &
183.470
