§963. Department of Environmental Quality; procedure for adoption of rules

            A.(1) Notwithstanding any other provision of this Chapter to the contrary, if the Department of Environmental Quality proposes a rule that is not identical to a federal law or regulation or is not required for compliance with a federal law or regulation, the department shall do all of the following:

            (a) Adopt and promulgate the proposed rule separately from any proposed rule or set of proposed rules that is identical to a federal law or regulation or required for compliance with a federal law or regulation, unless the only difference between the proposed rule or set of proposed rules and the corresponding federal law or regulation is a proposed fee. For purposes of this Subsection, the term "identical" shall mean that the proposed rule has the same content and meaning as the corresponding federal law or regulation.

            (b)(i) Provide a brief summary which explains the basis and rationale for the proposed rule; identifies the data and evidence, if any, upon which the rule is based; and identifies any portions of the proposed rule that differ from federal law or regulation if there is a federal law or regulation which is not identical but which corresponds substantially to the proposed rule.

            (ii) The summary shall be provided along with the notice of intent and shall be published in the Louisiana Register or made available along with the proposed rule as provided in R.S. 49:961(A)(4). The department may also provide the summary when proposing a rule identical to a corresponding federal law or regulation or proposing a rule which is required for compliance with federal law or regulation to explain the basis and rationale for the proposed rule.

            (2) Notwithstanding any other provision of this Chapter to the contrary, when the department proposes a rule that is identical to a federal law or regulation applicable in Louisiana, except as provided in Paragraph (3) of this Subsection, it may use the following procedure for the adoption of the rule:

            (a) The department shall publish a notice of the proposed rule at least sixty days prior to taking action on the rule as provided below. The notice, which may include an explanation of the basis and rationale for the proposed rule, shall include all of the following:

            (i) A statement of either the terms or substance of the intended action or a description of the subjects and issues involved.

            (ii) A statement that no fiscal or economic impact will result from the proposed rule.

            (iii) The name of the person within the department who has responsibility for responding to inquiries about the intended action.

            (iv) The time, place, and manner in which interested persons may present their views including the notice for a public hearing required by R.S. 30:2011(D)(1).

            (v) A statement that the intended action complies with the law administered by the department, including a citation of the specific provisions of law which authorize the proposed rule.

            (b) Notice of the proposed rule shall be published at least once in the Louisiana Register and shall be submitted with a full text of the proposed rule to the Louisiana Register at least seventy days prior to the date the department proposes to formally adopt the rule. The office of the state register may omit from the Louisiana Register any proposed rule, the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient, if the Louisiana Register contains a notice stating the general subject matter of the omitted proposed rule, the process being employed by the department for adoption of the proposed rule, and how a copy of the proposed rule may be obtained.

            (c) Notice of the intent of the department to adopt the rule shall be transmitted to all persons who have made timely request for notice at the earliest possible date, and in no case later than ten days after the date when the proposed rule is submitted to the Louisiana Register.

            (d) For the purposes of this Paragraph, the date of notice is the date of publication of the issue of the Louisiana Register in which the notice appears as stated on the outside cover or the first page of the issue.

            (e) The department shall afford all interested persons an opportunity to submit data, views, comments, or arguments related to the proposed rule, in writing, during a period of no less than thirty days. The department shall consider fully all written comments and submissions respecting the proposed rule.

            (f) The department shall make available to all interested persons copies of the proposed rule from the time the notice of its adoption is published in the Louisiana Register.

            (g) The department shall issue a response to comments and submissions describing the principal reasons for and against adoption of any amendments or changes suggested in the written comments and submissions and specifically addressing any assertion that the proposed rule is not identical to the federal law or regulation upon which it is based. The department shall issue the response to comments and submissions to any person who presented comments or submissions on the rule and to any requesting person no later than fifteen days prior to the time of publication of the final rule.

            (h) No later than fifteen days prior to the time of publication of the final rule in the Louisiana Register, the secretary or any authorized assistant secretary of the department shall do each of the following:

            (i) Certify under oath, to the governor of the state of Louisiana, the attorney general of Louisiana, the speaker of the House of Representatives, the president of the Senate, the chairman of the House Committee on Natural Resources and Environment, the chairman of the Senate Committee on Environmental Quality, and the office of the state register that the proposed rule is identical to a specified federal law or regulation applicable in Louisiana.

            (ii) Furnish the chairman of the Senate Committee on Environmental Quality and the chairman of the House Committee on Natural Resources and Environment the response to comments and submissions required under Subparagraph (g) of this Paragraph, together with a copy of the notice required under Subparagraph (a) of this Paragraph.

            (i) Unless specifically requested, in writing, by the chairman of the House Committee on Natural Resources and Environment or the chairman of the Senate Committee on Environmental Quality within ten days of the certification provided under Subparagraph (h) of this Paragraph, there shall be no legislative oversight of the proposed rule. If, however, legislative oversight is properly requested, R.S. 49:961(B)(2) and (3) and 966 shall thereafter apply with respect to the proposed rule.

            (j) In the absence of legislative oversight, the proposed rule may be adopted by the department no earlier than sixty days, nor later than twelve months, after the official notice of the proposed rule was published in the Louisiana Register. The proposed rule shall be effective upon its publication in the Louisiana Register subsequent to the act of adoption.

            (3) The procedures set forth in Paragraph (2) of this Subsection for the adoption by the department of rules identical to federal laws or regulations applicable in Louisiana shall not be available for the adoption of any rules creating or increasing fees.

            B.(1) Prior to or concurrent with publishing notice of any proposed policy, standard, or regulation pursuant to Subsection A of this Section and prior to promulgating any policy, standard, or final regulation whether pursuant to R.S. 49:965 or otherwise under the authority of the Louisiana Environmental Quality Act, R.S. 30:2001 et seq., the department shall publish a report, or a summary of the report, in the Louisiana Register which includes:

            (a) A statement identifying the specific risks being addressed by the policy, standard, or regulation and any published, peer-reviewed scientific literature used by the department to characterize the risks.

            (b) A comparative analysis of the risks addressed by the policy, standard, or regulation relative to other risks of a similar or analogous nature to which the public is routinely exposed.

            (c) An analysis based upon published, readily available peer-reviewed scientific literature, describing how the proposed and final policy, standard, or regulation will advance the purpose of protecting human health or the environment against the specified identified risks.

            (d) An analysis and statement that, based on the best readily available data, the proposed or final policy, standard, or regulation presents the most cost-effective method practically achievable to produce the benefits intended regarding the risks identified in Subparagraph (a) of this Paragraph.

            (2) No regulation shall become effective until the secretary complies with the requirements of Paragraph (1) of this Subsection.

            (3) This provision shall not apply in those cases where the policy, standard, or regulation meets one or more of the following criteria:

            (a) Is required for compliance with a federal law or regulation.

            (b) Is identical to a federal law or regulation applicable in Louisiana.

            (c) Will cost the state and affected persons less than one million dollars, in the aggregate, to implement.

            (d) Is an emergency rule under R.S. 49:962.

            (4) For purposes of this Subsection, the term "identical" shall mean that the proposed rule has the same content and meaning as the corresponding federal law or regulation.

            (5) In complying with this Section, the department shall consider any scientific and economic studies or data timely provided by interested parties which are relevant to the issues addressed and the proposed policy, standard, or regulation being considered.

            Acts 2022, No. 663, §1.

            NOTE: Former R.S. 49:963 redesignated as R.S. 49:968 by Acts 2022, No. 663, §1.