75th OREGON LEGISLATIVE ASSEMBLY--2009 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 1003
 
                         Senate Bill 105
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Governor Theodore R.
  Kulongoski for Department of Environmental Quality)
 
 
                             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.
 
  Increases maximum penalties for violations of environmental
laws.
 
                        A BILL FOR AN ACT
Relating to penalties for environmental laws; creating new
  provisions; and amending ORS 459.995, 465.900, 466.990,
  466.992, 466.994, 466.995, 468.130, 468.140, 468.922, 468.929,
  468.936, 468.996 and 783.992.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 459.995 is amended to read:
  459.995. (1) Except as provided in subsection (2) of this
section, in addition to any other penalty provided by law:
  (a) Any person who violates ORS 459.205, 459.270, 459.272,
459.386 to 459.405, 459.705 to 459.790, 459A.005 to 459A.620,
459A.310 to 459A.335, 459A.675 to 459A.685 or 646A.080, or any
rule or order of the Environmental Quality Commission pertaining
to the disposal, collection, storage or reuse or recycling of
solid wastes, as defined by ORS 459.005, or any rule or order
pertaining to the disposal, storage or transportation of waste
tires, as defined by ORS 459.705, or any rule or order pertaining
to the sale of novelty items that contain encapsulated liquid
mercury, shall incur a civil penalty not to exceed
 { - $10,000 - }  { + $25,000 + } a day for each day of the
violation.
  (b) Any person who violates the provisions of ORS 459.420 to
459.426 shall incur a civil penalty not to exceed $500 for each
violation. Each battery that is disposed of improperly shall be a
separate violation. Each day an establishment fails to post the
notice required under ORS 459.426 shall be a separate violation.
  (c) For each day a city, county or metropolitan service
district fails to provide the opportunity to recycle as required
under ORS 459A.005, the city, county or metropolitan service
district shall incur a civil penalty not to exceed $500 for each
violation.
  (2) Any product manufacturer or package manufacturer who
violates ORS 459A.650 to 459A.665 or any rule adopted under ORS
459A.650 to 459A.665 shall incur a civil penalty not to exceed
$1,000 per day for each day of the violation. A violation of ORS
459A.650 to 459A.665 shall not be subject to additional penalties
under subsection (1) of this section.
  (3) Any civil penalty authorized by subsection (1) or (2) of
this section shall be imposed in the manner provided by ORS
468.135.
  SECTION 2. ORS 459.995, as amended by section 17, chapter 302,
Oregon Laws 2007, is amended to read:
  459.995. (1) Except as provided in subsection (2) of this
section, in addition to any other penalty provided by law:
  (a) Any person who violates ORS 459.205, 459.270, 459.272,
459.386 to 459.405, 459.705 to 459.790, 459A.005 to 459A.620,
459A.310 to 459A.335, 459A.675 to 459A.685 or 646A.080, or any
rule or order of the Environmental Quality Commission pertaining
to the disposal, collection, storage or reuse or recycling of
solid wastes, as defined by ORS 459.005, or any rule or order
pertaining to the disposal, storage or transportation of waste
tires, as defined by ORS 459.705, or any rule or order pertaining
to the sale of novelty items that contain encapsulated liquid
mercury, shall incur a civil penalty not to exceed
 { - $10,000 - }  { + $25,000 + } a day for each day of the
violation.
  (b) Any person who violates the provisions of ORS 459.420 to
459.426 shall incur a civil penalty not to exceed $500 for each
violation. Each battery that is disposed of improperly shall be a
separate violation. Each day an establishment fails to post the
notice required under ORS 459.426 shall be a separate violation.
  (c) For each day a city, county or metropolitan service
district fails to provide the opportunity to recycle as required
under ORS 459A.005, the city, county or metropolitan service
district shall incur a civil penalty not to exceed $500 for each
violation.
  (d) Any person who violates the provisions of ORS 459.247
(1)(f) shall incur a civil penalty not to exceed $500 for each
violation. Each covered electronic device that is disposed of
improperly shall be a separate violation.
  (2) Any product manufacturer or package manufacturer who
violates ORS 459A.650 to 459A.665 or any rule adopted under ORS
459A.650 to 459A.665 shall incur a civil penalty not to exceed
$1,000 per day for each day of the violation. A violation of ORS
459A.650 to 459A.665 shall not be subject to additional penalties
under subsection (1) of this section.
  (3) Any civil penalty authorized by subsection (1) or (2) of
this section shall be imposed in the manner provided by ORS
468.135.
  SECTION 3. ORS 465.900 is amended to read:
  465.900. (1) In addition to any other penalty provided by law,
any person who violates a provision of ORS 465.200 to 465.545, or
any rule or order entered or adopted under ORS 465.200 to
465.545, shall incur a civil penalty not to exceed
 { - $10,000 - }  { + $25,000 + } a day for each day that such
violation occurs or that failure to comply continues.
  (2) The civil penalty authorized by subsection (1) of this
section shall be imposed in the manner provided by ORS 468.135,
except that a penalty collected under this section shall be
deposited in the Hazardous Substance Remedial Action Fund
established under ORS 465.381, if the penalty pertains to a
release at any facility.
  SECTION 4. ORS 466.990 is amended to read:
  466.990. (1) In addition to any other penalty provided by law,
any person who violates ORS 466.005 to 466.385 and 466.992, a
license condition or any Environmental Quality Commission rule or
 { +  any + } order  { + of the commission or Department of
Environmental Quality + } pertaining to the generation,
treatment, storage, disposal or transportation by air or water of
hazardous waste, as defined by ORS 466.005, shall incur a civil
penalty not to exceed   { - $10,000 - }  { + $25,000 + } for each
day of the violation.
  (2) The civil penalty authorized by subsection (1) of this
section shall be imposed in the manner provided by ORS 468.135.
  (3) In addition to any other penalty provided by law, any
person who violates a provision of ORS 466.605 to 466.680, or any
rule or order entered or adopted under ORS 466.605 to 466.680,
  { - may - }   { + shall + } incur a civil penalty not to exceed
 { - $10,000 - }   { + $25,000 + }.  Each day of violation shall
be considered a separate offense.
  (4) The civil penalty authorized by subsection (3) of this
section shall be imposed in the manner provided by ORS 468.135,
except that a penalty collected under this section shall be
deposited to the fund established in ORS 466.670.
  SECTION 5. ORS 466.992 is amended to read:
  466.992. (1) Any person who has care, custody or control of a
hazardous waste or a substance   { - which - }   { + that + }
would be a hazardous waste except for the fact that it is not
discarded, useless or unwanted shall incur a civil penalty
according to the schedule set forth in   { - subsection (2) of
this section - }   { + ORS 496.705 + } for the destruction, due
to contamination of food or water supply by such waste or
substance, of any of the wildlife referred to in
  { - subsection (2) of this section - }   { + ORS 496.705 + }
that are the property of the state.
    { - (2) The penalties referred to in subsection (1) of this
section shall be as follows: - }
    { - (a) Each game mammal other than mountain sheep, mountain
goat, elk or silver gray squirrel, $400. - }
    { - (b) Each mountain sheep or mountain goat, $3,500. - }
    { - (c) Each elk, $750. - }
    { - (d) Each silver gray squirrel, $10. - }
    { - (e) Each game bird other than wild turkey, $10. - }
    { - (f) Each wild turkey, $50. - }
    { - (g) Each game fish other than salmon or steelhead trout,
$5. - }
    { - (h) Each salmon or steelhead trout, $125. - }
    { - (i) Each fur-bearing mammal other than bobcat or fisher,
$50. - }
    { - (j) Each bobcat or fisher, $350. - }
    { - (k) Each specimen of any wildlife species whose survival
is specified by the wildlife laws or the laws of the United
States as threatened or endangered, $500. - }
    { - (L) Each specimen of any wildlife species otherwise
protected by the wildlife laws or the laws of the United States,
but not otherwise referred to in this subsection, $25. - }
    { - (3) - }   { + (2) + } The civil penalty imposed under
this section shall be in addition to other penalties prescribed
by law.
  SECTION 6. ORS 466.994 is amended to read:
  466.994. (1) Any person who violates any provision of ORS
466.706 to 466.882 and this section, a rule adopted under ORS
466.706 to 466.882 and this section or the terms or conditions of
any order or permit issued by the Department of Environmental
Quality under ORS 466.706 to 466.882 and this section shall be
subject to a civil penalty not to exceed   { - $10,000 - }
 { + $25,000 + } per violation per day of violation.
  (2) Each violation may be a separate and distinct offense and
in the case of a continuing violation, each day's continuance
thereof may be deemed a separate and distinct offense.
  (3) The civil penalties authorized under this section shall be
imposed in the manner provided by ORS 468.135 except that a
penalty collected under subsection (1) of this section shall be
deposited to the fund established in ORS 466.791.
  SECTION 7. ORS 466.995 is amended to read:
 
  466.995. (1) Penalties provided in this section are in addition
to and not in lieu of any other remedy specified in ORS 459.005
to 459.105, 459.205 to 459.385, 466.005 to 466.385 or 466.992.
  (2) Subject to ORS 153.022, violation  { + by any person + } of
a provision of ORS 466.605 to 466.680 or of any rule or order
entered or adopted under ORS 466.605 to 466.680 is punishable,
upon conviction, by a fine of not more than   { - $10,000 - }
 { + $25,000 + } or by imprisonment in the county jail for not
more than one year or both. Each day of violation shall be
considered a separate offense.
  (3) Subject to ORS 153.022, any person who knowingly violates
any provision of ORS 466.706 to 466.882 and 466.994 or the rules
adopted under ORS 466.706 to 466.882 and 466.994 shall be subject
to a criminal penalty not to exceed   { - $10,000 - }
 { + $25,000 + } or imprisonment for not more than one year or
both. Each day of violation shall be deemed a separate offense.
  (4) Subject to ORS 153.022, any person who knowingly violates
any provision of ORS 465.200 to 465.545 or any rule or order
adopted or issued under ORS 465.200 to 465.545 shall, upon
conviction, be subject to a criminal penalty not to exceed
  { - $10,000 - }   { + $25,000 + } or imprisonment for not more
than one year, or both. Each day of violation shall be deemed a
separate offense.
   { +  (5) Notwithstanding ORS 161.655, if a person incurring a
fine under this section is a corporation, the corporation shall
pay the fine provided for under this section. + }
  SECTION 8. ORS 468.130 is amended to read:
  468.130. (1) The Environmental Quality Commission shall adopt
by rule a schedule or schedules establishing the amount of civil
penalty that may be imposed for a particular violation. Except as
provided in ORS 468.140 (3), no civil penalty shall exceed
  { - $10,000 - }   { + $25,000 + } per day. Where the
classification involves air pollution, the commission shall
consult with the regional air quality control authorities before
adopting any classification or schedule.
  (2) In imposing a penalty pursuant to the schedule or schedules
authorized by this section, the commission and regional air
quality control authorities shall consider the following factors:
  (a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
  (b) Any prior violations of statutes, rules, orders and permits
pertaining to water or air pollution or air contamination or
solid waste disposal.
  (c) The economic and financial conditions of the person
incurring a penalty.
  (d) The gravity and magnitude of the violation.
  (e) Whether the violation was repeated or continuous.
  (f) Whether the cause of the violation was an unavoidable
accident, negligence or an intentional act.
  (g) The violator's cooperativeness and efforts to correct the
violation.
   { +  (h) Whether the violator gained an economic benefit as a
result of the violation. + }
    { - (h) - }   { + (i) + } Any relevant rule of the
commission.
  (3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the commission or
regional authority considers proper and consistent with the
public health and safety.
  (4) The commission may by rule delegate to the Department of
Environmental Quality, upon such conditions as deemed necessary,
all or part of the authority of the commission provided in
subsection (3) of this section to remit or mitigate civil
penalties.
  SECTION 9. ORS 468.140 is amended to read:
  468.140. (1) In addition to any other penalty provided by law,
any person who violates any of the following shall incur a civil
penalty for each day of violation in the amount prescribed by the
schedule adopted under ORS 468.130:
  (a) The terms or conditions of any permit required or
authorized by law and issued by the Department of Environmental
Quality or a regional air quality control authority.
  (b) Any provision of ORS 164.785, 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755
 { - , - }  { +  and 783.625 to 783.640 and + } ORS chapter 467
and ORS chapters 468, 468A and 468B.
  (c) Any rule or standard or order of the Environmental Quality
Commission adopted or issued 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 783.625 to 783.640 and + } ORS
chapter 467 and ORS chapters 468, 468A and 468B.
  (d) Any term or condition of a variance granted by the
commission or department pursuant to ORS 467.060.
  (e) Any rule or standard or order of a regional authority
adopted or issued under authority of ORS 468A.135.
  (f) The financial assurance requirement under ORS 468B.390 and
468B.485 or any rule related to the financial assurance
requirement under ORS 468B.390.
  (2) Each day of violation under subsection (1) of this section
constitutes a separate offense.
  (3)(a) In addition to any other penalty provided by law, any
person who intentionally or negligently causes or permits the
discharge of oil  { + or hazardous material + } into the waters
of the state { +  or intentionally or negligently fails to clean
up a spill or release of oil or hazardous material into the
waters of the state as required by ORS 466.645 + } shall incur a
civil penalty not to exceed the amount of   { - $20,000 - }
 { + $100,000 + } for each violation.
  (b) In addition to any other penalty provided by law, the
following persons shall incur a civil penalty not to exceed the
amount of   { - $10,000 - }   { + $25,000 + } for each day of
violation:
  (A) Any person who violates the terms or conditions of a permit
authorizing waste discharge into the air or waters of the state.
  (B) Any person who violates any law, rule, order or standard in
ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to
454.535, 454.605 to 454.755 and  { + 783.625 to 783.640 and + }
ORS chapters 468, 468A and 468B relating to air or water
pollution.
  (C) Any person who violates the provisions of a rule adopted or
an order issued under ORS 459A.590.
  (4) In addition to any other penalty provided by law, any
person who violates the provisions of ORS 468B.130 shall incur a
civil penalty not to exceed the amount of   { - $500 - }
 { + $1,000 + } for each day of violation.
  (5) Subsection (1)(c) and (e) of this section does not apply to
violations of motor vehicle emission standards which are not
violations of standards for control of noise emissions.
  (6) Notwithstanding the limits of ORS 468.130 (1) and in
addition to any other penalty provided by law, any person who
intentionally or negligently causes or permits open field burning
contrary to the provisions of ORS 468A.555 to 468A.620 and
468A.992, 476.380 and 478.960 shall be assessed by the department
a civil penalty of at least $20 but not more than $40 for each
acre so burned. Any fines collected by the department pursuant to
this subsection shall be deposited with the State Treasurer to
the credit of the General Fund and shall be available for general
governmental expense. As used in this subsection, 'open field
burning' does not include propane flaming of mint stubble.
  SECTION 10.  { + Section 10 of this 2009 Act is added to and
made a part of ORS 468.922 to 468.956. + }
  SECTION 11.  { + Notwithstanding ORS 161.655, if a person
incurring a fine imposed under ORS 468.922 to 468.956 is a
corporation, the corporation shall pay the fine provided for
under ORS 468.922 to 468.956. + }
  SECTION 12. ORS 468.922 is amended to read:
  468.922. (1) A person commits the crime of unlawful disposal,
storage or treatment of hazardous waste in the second degree if
the person, in violation of ORS 466.095 or 466.100 or any rule,
standard, license, permit or order adopted or issued under ORS
466.020, 466.095 or 466.100, knowingly treats, stores or disposes
of hazardous waste.
  (2)(a) Subject to ORS 153.022, unlawful disposal, storage or
treatment of hazardous waste in the second degree is a Class B
misdemeanor.
  (b) Notwithstanding ORS 161.635, in addition to any term of
imprisonment that the court may impose under paragraph (a) of
this subsection, the court may impose a fine of up to
 { - $10,000 - }  { + $25,000 + }.
  SECTION 13. ORS 468.929 is amended to read:
  468.929. (1) A person commits the crime of unlawful transport
of hazardous waste in the second degree if the person, in
violation of ORS 466.080, 824.090 or 825.258 or any rule,
standard, license, permit or order adopted or issued under ORS
466.020, 466.080, 824.090 or 825.258, knowingly transports
hazardous waste.
  (2)(a) Subject to ORS 153.022, unlawful transport of hazardous
waste in the second degree is a Class B misdemeanor.
  (b) Notwithstanding ORS 161.635, in addition to any term of
imprisonment that the court may impose under paragraph (a) of
this subsection, the court may impose a fine of up to
 { - $10,000 - }  { + $25,000 + }.
  SECTION 14. ORS 468.936 is amended to read:
  468.936. (1) A person commits the crime of unlawful air
pollution in the second degree if the person knowingly violates
any applicable requirement of ORS chapter 468A or a permit, rule
or order adopted or issued under ORS chapter 468A.
  (2) Notwithstanding ORS 161.515 and subject to ORS 153.022,
unlawful air pollution in the second degree is a criminal offense
punishable solely by a fine of up to   { - $10,000 - }
 { + $25,000 + }.
  SECTION 15. ORS 468.996 is amended to read:
  468.996. (1) In addition to any other penalty provided by law,
any person who intentionally or recklessly violates any provision
of ORS 164.785, 459.205 to 459.426, 459.705 to 459.790, ORS
chapters 465, 466 or 467 or 468, 468A and 468B or any rule or
standard or order of the Environmental Quality Commission adopted
or issued pursuant to ORS 459.205 to 459.426, 459.705 to 459.790,
ORS chapters 465, 466 or 467 or 468, 468A and 468B, which results
in or creates the imminent likelihood for an extreme hazard to
the public health or which causes extensive damage to the
environment shall incur a civil penalty not to exceed
 { - $100,000 - }   { + $250,000 + }. The Environmental Quality
Commission shall adopt by rule a schedule and the criteria for
determining the amount of a civil penalty that may be imposed for
an extreme violation.
  (2) As used in this section:
  (a) 'Intentionally' means conduct by a person with a conscious
objective to cause the result of the conduct.
  (b) 'Recklessly' means conduct by a person who is aware of and
consciously disregards a substantial and unjustifiable risk that
the result will occur or that the circumstance exists. The risk
must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of care a
reasonable person would observe in that situation.
  SECTION 16. ORS 783.992 is amended to read:
 
  783.992.   { - (1) Except as provided in subsection (2) of this
section, - }   { + As specified in ORS 468.140, + } the Director
of the Department of Environmental Quality may impose a civil
penalty on the owner or operator of a vessel for failure to
comply with the requirements of ORS 783.625 to 783.640.   { - The
penalty imposed under this section may not exceed $5,000 for each
violation. In determining the penalty imposed, the director shall
consider whether the violation was intentional, negligent or
without any fault and shall consider the quality and nature of
risks created by the violation. The owner or operator of a vessel
subject to such a penalty may contest the determination by
requesting a hearing under ORS 183.413 to 183.470. - }
    { - (2) The civil penalty for a violation of the reporting
requirements of ORS 783.640 may not exceed $500 per
violation. - }
  SECTION 17.  { + Section 11 of this 2009 Act and the amendments
to ORS 459.995, 465.900, 466.990, 466.992, 466.994, 466.995,
468.130, 468.140, 468.922, 468.929, 468.936, 468.996 and 783.992
by sections 1 to 9 and 12 to 16 of this 2009 Act apply to
violations occurring on or after the effective date of this 2009
Act. + }
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