72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3766
House Bill 3655
Sponsored by Representative DINGFELDER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires Environmental Quality Commission to develop priority
list of hazardous substances discharged into Willamette River
Basin. Requires list to contain substances that pose significant
human health risk. Enumerates specific substances that must be
included on list. Requires commission to prohibit discharge of
substance on list to waters of state located in Willamette River
Basin on January 1 of fourth year following placement on list.
Permits exception under specified circumstances. Modifies
definition of hazardous substance. Requires Department of
Environmental Quality to create database of pollution discharges
by watershed and pollutant for all watersheds in state.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to environmental cleanup; creating new provisions;
amending ORS 453.005 and 468.065; and declaring an emergency.
Whereas improvements in the manner in which the state regulates
the discharge of pollutants into the waters of the Willamette
River Basin can be made; and
Whereas certain discharged substances pose a significant human
health risk; and
Whereas the Legislative Assembly finds that the following
Willamette River Cleanup and Protection Act will provide
significant benefits to the citizens of this state; now,
therefore,
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2003 Act is added to and made
a part of ORS chapter 468B. + }
SECTION 2. { + (1) The Environmental Quality Commission shall
develop a priority list of hazardous substances currently
discharged into the waters of this state located in the
Willamette River Basin. The priority list shall be developed by
the commission with the goal of assisting in future cleanup
efforts in the Willamette River Basin by targeting pollutant
types and sources. The priority list shall contain those
substances that pose a significant human health risk either by
toxicity or because they are persistent bioaccumulative toxins.
The priority list may be amended on January 1 of each year as the
commission deems necessary. The priority list must include:
(a) Methyl mercury;
(b) Polychlorinated biphenyls;
(c) Dioxins; and
(d) Lead.
(2)(a) The commission shall require persons holding a permit
issued pursuant to ORS 468B.050 that allows for the discharge of
one or more of the substances placed on the list created pursuant
to this section to test for, monitor and report their releases in
amount and concentration to the Department of Environmental
Quality on an annual basis.
(b) Upon placing a substance on the list created pursuant to
this section, the commission shall notify all permit holders
known to discharge the substance into the waters of this state
located in the Willamette River Basin that testing, monitoring
and reporting will be required for that substance within one
year.
(c) The commission shall require testing, monitoring and
reporting of the substance placed on the list created pursuant to
this section on January 1 of the year following its placement on
the list.
(3)(a) The commission shall prohibit the discharge into the
waters of this state located in the Willamette River Basin of any
substance on the list created pursuant to this section on January
1 of the fourth year following its placement on the list.
(b) After the commission prohibits the discharge of a substance
on the list, the department shall issue to all persons holding a
permit issued pursuant to ORS 468B.050 that allows for the
discharge of a substance placed on the list a new permit that
does not allow for the discharge of the substance.
(c) Notwithstanding paragraph (a) of this subsection, the
commission may allow a substance to be discharged if it
determines that no reasonably available technology exists to
completely eliminate the substance from the wastes discharged.
(4) On January 1 of the fifth year following the placement of a
substance on the list created pursuant to this section, unless
the commission determines that no reasonable alternative product
or manufacturing technology exists, the commission, in
consultation with the Director of Human Services, shall determine
that a substance on the list is a hazardous substance for
purposes of ORS 453.005 to 453.135. + }
SECTION 3. { + The Environmental Quality Commission shall
create the first priority list required by section 2 of this 2003
Act on or before January 1, 2004. + }
SECTION 4. ORS 453.005 is amended to read:
453.005. As used in ORS 453.005 to 453.135 and 453.990 (2)
unless the context requires otherwise:
(1) 'Combustible' means any substance which has a flash point
above 80 degrees Fahrenheit to and including 140 degrees, as
determined by the Tagliabue Open Cup Tester.
(2) 'Commerce' means any and all commerce within the State of
Oregon and subject to the jurisdiction thereof and includes the
operation of any business or service establishment.
(3) 'Corrosive' means any substance which in contact with
living tissue will cause destruction of tissue by chemical
action, but does not refer to action on inanimate surfaces.
(4) 'Electrical hazard' means an article which because of its
design or manufacture may cause personal injury or illness by
electric shock when in normal use or when subjected to reasonably
foreseeable damage or abuse.
(5) 'Extremely flammable' means any substance which has a flash
point at or below 20 degrees Fahrenheit as determined by the
Tagliabue Open Cup Tester.
(6) 'Flammable' means any substance which has a flash point of
above 20 degrees to and including 80 degrees Fahrenheit, as
determined by the Tagliabue Open Cup Tester.
(7) 'Hazardous substance' means:
(a) Any substance which is toxic, corrosive, an irritant, a
strong sensitizer, flammable, combustible, or generates pressure
through decomposition, heat or other means, if such substance or
mixture of substances may cause substantial personal injury or
substantial illness during or as a proximate result of any
customary or reasonably foreseeable handling or use, including
reasonably foreseeable ingestion by children or any substance
which the Director of Human Services finds, pursuant to the
provisions of ORS 453.005 to 453.135 and 453.990 (2), comes
within the definition of this paragraph.
(b) Any radioactive substance, if, with respect to such
substance as used in a particular class of article or as
packaged, the director determines that the substance is
sufficiently hazardous to require labeling in accordance with ORS
453.005 to 453.135 and 453.990 (2) in order to protect the public
health. However, the term 'hazardous substance' does not include
any source material, special nuclear material, or by-product
material as defined in the Atomic Energy Act of 1954, as amended,
and regulations issued pursuant thereto by the Atomic Energy
Commission.
(c) Any toy or other article intended for use by children which
the director determines in accordance with ORS 453.055 presents
an electrical, thermal or mechanical hazard.
(d) Any article which is not pesticide within the meaning of
the Federal Insecticide, Fungicide, and Rodenticide Act or
regulated under ORS 616.335 to 616.385, but which is a hazardous
substance within the meaning of paragraph (a) of this subsection
by reason of bearing or containing pesticide.
{ + (e) Any substance that the Environmental Quality
Commission, in consultation with the Director of Human Services,
determines is a hazardous substance under section 2 of this 2003
Act. + }
(8) 'Highly toxic' means any substance which falls within any
of the following categories:
(a) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, at a single dose of 50 milligrams or less per
kilogram of body weight, when orally administered; or
(b) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, when inhaled continuously for a period of one
hour or less at an atmosphere concentration of 200 parts per
million by volume or less of gas or vapor or two milligrams per
liter by volume or less of mist or dust, provided such
concentration is likely to be encountered by humans when the
substance is used in any reasonably foreseeable manner; or
(c) Produces death within 14 days in one-half or more of a
group of 10 or more rabbits tested in a dosage of 200 milligrams
or less per kilogram of body weight, when administered by
continuous contact with the bare skin for 24 hours or less.
(9) 'Immediate container' does not include package liners.
(10) 'Irritant' means any substance not corrosive within the
meaning of subsection (3) of this section, but which on
immediate, prolonged, or repeated contact with normal living
tissue will induce a local inflammatory reaction.
(11) 'Label' means a display of written, printed, or graphic
matter upon the immediate container of any substance, or in the
case of an article which is unpackaged or is not packaged in an
immediate container intended or suitable for delivery to the
ultimate consumer, a display of such matter directly on the
article involved or on a tag or other suitable material affixed
thereto, and a requirement made by or under authority of ORS
453.005 to 453.135 and 453.990 (2) that any word, statement, or
other information appearing on the label shall not be considered
to be complied with unless such word, statement, or other
information also appears on the outside container or wrapper, if
any, unless it is easily legible through the outside container or
wrapper and on all accompanying literature where there are
directions for use, written or otherwise.
(12) 'Mechanical hazard' means an article which in normal use
or when subjected to reasonably foreseeable damage or abuse
presents an unreasonable risk of personal injury or illness, by
its design or manufacture:
(a) From fracture, fragmentation, or disassembly of the
article;
(b) From propulsion of the article or any part or accessory
thereof;
(c) From points or other protrusions, surfaces, edges,
openings, or closures;
(d) From moving parts;
(e) From lack or insufficiency of controls to reduce or stop
motion;
(f) As a result of self-adhering characteristics of the
article;
(g) Because the article or any part or accessory thereof may be
aspirated or ingested;
(h) Because of instability; or
(i) Because of any other aspect of the article's design or
manufacture.
(13) 'Misbranded hazardous substance' means a hazardous
substance that does not meet the labeling requirements of ORS
453.035.
(14) 'Poison' means:
(a) Arsenic and its preparations;
(b) Corrosive sublimate;
(c) Cyanides and preparations, including hydrocyanic acid;
(d) Hydrochloric acid and any preparation containing free or
chemically unneutralized hydrochloric acid (HCl) in a
concentration of 10 percent or more;
(e) Nitric acid or any preparation containing free or
chemically unneutralized nitric acid (HNO3) in a concentration of
five percent or more;
(f) Strychnine;
(g) Sulfuric acid and any preparation containing free or
chemically unneutralized sulfuric acid (H2SO4) in a concentration
of 10 percent or more;
(h) Solution of ammonia, U.S.P. 28 percent; or
(i) Carbolic acid.
(15) 'Radioactive substance' means a substance which emits
ionizing radiation.
(16) 'Strong sensitizer' means a substance which will cause on
normal living tissue, through an allergic or photodynamic
process, a hypersensitivity which becomes evident on
reapplication of the same substances and which is designated as
such by the Director of Human Services.
(17) 'Thermal hazard' means an article which, in normal use or
when subjected to reasonably foreseeable damage or abuse, because
of its design or manufacture presents an unreasonable risk of
personal injury or illness because of heat as from heated parts,
substances or surfaces.
(18) 'Toxic substance' means any substance, other than
radioactive substance, which has the capacity to produce personal
injury or illness to humans through ingestion, inhalation, or
absorption through any body surface.
SECTION 5. ORS 468.065 is amended to read:
468.065. Subject to any specific requirements imposed by ORS
448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to
454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B:
(1) Applications for all permits authorized or required by ORS
448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to
454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B
shall be made in a form prescribed by the Department of
Environmental Quality. Any permit issued by the department shall
specify its duration, and the conditions for compliance with the
rules and standards, if any, adopted by the Environmental Quality
Commission pursuant to ORS 448.305, 454.010 to 454.040, 454.205
to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS
chapters 468, 468A and 468B.
{ - (2) - } { + (2)(a) + } By rule and after hearing, the
commission may establish a schedule of fees for permits issued
pursuant to ORS 468A.040, 468A.045, 468A.155 and 468B.050. Except
as provided in ORS 468A.315, the fees contained in the schedule
shall be based upon the anticipated cost of filing and
investigating the application, of carrying out applicable
requirements of Title V, of issuing or denying the requested
permit, and of an inspection program to determine compliance or
noncompliance with the permit. The fee shall accompany the
application for the permit.
{ + (b) The commission may impose + } the fees for a permit
issued under ORS 468A.040 or 468B.050 { - may be imposed - }
on an annual basis.
{ + (c) Notwithstanding the provisions of paragraph (a) of
this subsection, the fee schedule for permits issued pursuant to
ORS 468B.050 shall recover all costs of administering the permit
program, including enforcement, inspection, testing and
administrative costs.
(d) The fee schedule for permits issued pursuant to ORS
468B.050 may allow for a reduced fee for permit holders
voluntarily reducing the volume or toxicity of permitted
emissions. + }
(3) An applicant for certification of a project under ORS
468B.040 or 468B.045, and any person submitting a notice of
intent to seek reauthorization, a preliminary application or an
application for reauthorization of a water right for a
hydroelectric project under ORS 543A.030, 543A.035, 543A.075,
543A.080 or 543A.095 shall pay as a fee all expenses incurred by
the commission and department related to the review and decision
of the Director of the Department of Environmental Quality and
commission. These expenses may include legal expenses, expenses
incurred in evaluating the project, issuing or denying
certification and expenses of commissioning an independent study
by a contractor of any aspect of the proposed project. These
expenses shall not include the costs incurred in defending a
decision of either the director or the commission against appeals
or legal challenges. The department shall bill applicants for
costs incurred on a monthly basis, and shall provide a biennial
report describing how the moneys were spent. An applicant may
arrange with the department to pay the fee on a quarterly basis.
The department shall not charge a fee under the fee authority in
this subsection if the holder is being charged a fee under ORS
543.088 and 543.090 or 543A.405. In no event shall the department
assess fees under this section and under ORS 543A.405 for
performance of the same work.
(4) The department may require the submission of plans,
specifications and corrections and revisions thereto and such
other reasonable information as it considers necessary to
determine the eligibility of the applicant for the permit.
(5) The department may require periodic reports from persons
who hold permits under ORS 448.305, 454.010 to 454.040, 454.205
to 454.225, 454.505 to 454.535, 454.605 to 454.755 and ORS
chapters 468, 468A and 468B. The report shall be in a form
prescribed by the department and shall contain such information
as to the amount and nature or common description of the
pollutant, contaminant or waste and such other information as the
department may require.
(6) Any fee collected under this section or ORS 468A.315 shall
be deposited in the State Treasury to the credit of an account of
the department. Such fees are continuously appropriated to meet
the administrative expenses of the program for which they are
collected. The federal operating permit program shall include a
commensurate amount of the fee for any permit issued under this
section for which the department incurs costs associated with the
requirements of Title V and any fees collected under ORS
468A.315. Fees collected for the federal operating permit
program in any biennium that exceed the legislatively approved
budget, including amounts authorized by the Emergency Board for
the federal operating permit program for such biennium, shall be
credited toward the federal operating permit program budget for
the following biennium. The fees collected under this section or
ORS 468A.315 by a regional air pollution control authority
pursuant to a permit program authorized by the commission shall
be retained by and shall be income to the regional authority
except as provided in ORS 468A.155 (2)(c). Such fees shall be
accounted for and expended in the same manner as are other funds
of the regional authority. However, if the department finds after
hearing that the permit program administered by the regional
authority does not conform to the requirements of the permit
program approved by the commission pursuant to ORS 468A.155, such
fees shall be deposited and expended as are permit fees submitted
to the department.
(7) As used in this section, 'Title V' has the meaning given in
ORS 468A.300.
SECTION 6. { + In order to improve public understanding of the
types and amounts of pollutants entering the waters of this state
and to provide a unified source of information for future cleanup
efforts, the Department of Environmental Quality shall create a
database of pollution discharges by watershed and by pollutant
for all watersheds in this state. The department shall create the
database in a commonly used database format and make it available
to the public on the World Wide Web. + }
SECTION 7. { + The Department of Environmental Quality shall
create the database required under section 6 of this 2003 Act on
or before January 1, 2007. + }
SECTION 8. { + This 2003 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2003 Act takes effect on its
passage. + }
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