Chapter 975 Oregon Laws 1999

Session Law

AN ACT

SB 1189

Relating to enforcement procedures for water quality violations; creating new provisions; amending ORS 468.090 and 468.126; appropriating money; limiting expenditures; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 1999 Act is added to and made a part of ORS chapter 468B.

SECTION 2. (1) In addition to enforcement proceedings pursuant to ORS 468.090 for a violation of a provision, rule, permit or order under ORS chapter 468B, the Department of Environmental Quality shall implement the procedures established under this section upon the request of the person to whom the notice of the civil penalty or other formal enforcement action is addressed if the person files the request within 20 days from the date of service of the notice. The written request shall serve in lieu of any other prescribed response.

(2) The department shall provide public notice of, and reasonable opportunity to comment in writing on, the civil penalty or other formal enforcement action.

(3) After the comment period closes, the department may determine either to modify the civil penalty or other formal enforcement action based on any comment received under subsection (2) of this section or to reissue the original civil penalty or other formal enforcement action. The department shall serve the person to whom the notice of civil penalty or other formal enforcement action was addressed with a copy of any comments filed and a new notice that includes the determination of the department. The person shall then have 20 days from the date of service of the new notice in which to make written application for a hearing.

(4) The department shall give notice to any person who commented under subsection (2) of this section of the new notice that includes the determination of the department under subsection (3) of this section. The department also shall give notice to any person who commented under subsection (2) of this section if a hearing is requested under subsection (3) of this section.

(5) If a person does not apply for a hearing under subsection (3) of this section, a person who commented under subsection (2) of this section may request that the department hold a hearing if the person who commented makes the request in writing within 30 days of the mailing of the notice given under subsection (4) of this section. However, the department shall hold a hearing only if the request includes material evidence that the department did not consider when the department issued the civil penalty or other formal enforcement action. If the department denies the request for a hearing, the department shall provide a copy of the denial and the reasons for the denial to the requester and shall provide public notice of the denial that includes the reasons for the denial.

(6) In a hearing under subsection (3) or (5) of this section, the person subject to the civil penalty or other formal enforcement action and any person who commented under subsection (2) of this section shall have a reasonable opportunity to be heard and to present evidence. The department shall conduct the hearing in accordance with ORS 183.090.

(7) If a person does not request a hearing pursuant to subsection (3) or (5) of this section, the department shall issue the civil penalty or other formal enforcement action.

(8) For purposes of judicial review under ORS 183.480 to 183.500, a person who comments under subsection (2) of this section and includes a request in writing to be a party to the civil penalty or other formal enforcement action shall have standing to be a party to an agency proceeding subject to judicial review of a final order. For the procedures established by this section only, the civil penalty or other formal enforcement action shall be deemed to be commenced for purposes of the state's implementation of section 309(g)(6) of the Federal Water Pollution Control Act, as amended, when the department first notifies a person in writing that a violation has been documented and that the violation is being referred for formal enforcement action or will result in a civil penalty or other formal enforcement action.

(9) The Environmental Quality Commission shall ensure that state enforcement procedures for implementing section 309(g)(6) of the Federal Water Pollution Control Act, as amended, are comparable to and not greater than the federal enforcement procedures for enforcing that federal Act.

(10) Any person who submits a request under subsection (1) of this section shall submit with the request a basic process fee in the amount of $2,000 and a refundable hearings fee in the amount of $3,650 to pay the expenses of the department incurred under this section. If a hearing is not conducted under this section, the department shall return the refundable hearing fee to the person who submitted the request under subsection (1) of this section. All fees received under this subsection shall be deposited into the State Treasury to the credit of an account of the department. Such moneys are continuously appropriated to the department for payment of the costs of the department in carrying out the provisions of this section.

SECTION 3. ORS 468.090 is amended to read:

468.090. (1) In case any written substantiated complaint is filed with the Department of Environmental Quality which it has cause to believe, or in case the department itself has cause to believe, that any person is violating any rule or standard adopted by the Environmental Quality Commission or any permit issued by the department by causing or permitting water pollution or air pollution or air contamination, the department shall cause an investigation thereof to be made. If it finds after such investigation that such a violation of any rule or standard of the commission or of any permit issued by the department exists, it shall by conference, conciliation and persuasion endeavor to eliminate the source or cause of the pollution or contamination which resulted in such violation.

(2) In case of failure to remedy the violation, the department shall commence enforcement proceedings pursuant to the procedures set forth in ORS 183.310 to 183.550 for a contested case and in section 2 of this 1999 Act.

SECTION 4. ORS 468.126 is amended to read:

468.126. (1) No civil penalty prescribed under ORS 468.140 shall be imposed for a violation of an air, water or solid waste permit issued by the Department of Environmental Quality until the permittee has received five days' advance warning in writing from the department, specifying the violation and stating that a penalty will be imposed for the violation unless the permittee submits the following to the department in writing within five working days after receipt of the advance warning:

(a) A response certifying that the permitted facility is complying with applicable law; [or]

(b) A proposal to bring the facility into compliance with applicable law that is acceptable to the department and that includes but is not limited to proposed compliance dates; or

(c) For a water quality permit violation, a request in writing to the department that the department follow the procedures prescribed under section 2 of this 1999 Act. Notwithstanding the requirement for a response to the department within five working days, the permittee may file a request under this paragraph within 20 days from the date of service of the notice.

(2) No advance notice shall be required under subsection (1) of this section if:

(a) The violation is intentional;

(b) The water or air violation would not normally occur for five consecutive days;

(c) The permittee has received prior advance warning of any violation of the permit within the 36 months immediately preceding the violation;

(d) The permittee is subject to the federal operating permit program under ORS 468A.300 to 468A.320 and violates any rule or standard adopted or permit or order issued under ORS chapter 468A and applicable to the permittee; or

(e) The requirement to provide such notice would disqualify a state program from federal approval or delegation.

SECTION 5. During the biennium beginning July 1, 1999, the Department of Environmental Quality shall keep a record of the costs of the department in carrying out the provisions of section 2 of this 1999 Act. Not later than January 15, 2001, the Department of Environmental Quality shall submit a report to the Seventy-first Legislative Assembly setting forth the costs to the department and recommendations about whether the fees set forth in section 2 (10) of this 1999 Act should be adjusted to accurately reflect the costs of the process set forth in section 2 of this 1999 Act.

SECTION 6. Notwithstanding any other law, the amount of $240,000 is established for the biennium beginning July 1, 1999, as the maximum limit for payment of expenses incurred in carrying out the provisions of section 2 of this 1999 Act from fees, moneys or other revenues, including Miscellaneous Receipts, excluding federal funds, collected or received by the Department of Environmental Quality.

SECTION 7. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect on its passage.

Approved by the Governor August 17, 1999

Filed in the office of Secretary of State August 18, 1999

Effective date August 17, 1999

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