•

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Attachment H

DEQ Enforcement Procedure and Civil Penalty Guidance

. ",,',".' • '1:-' ..~. .: . - - . ... I· '.:r.. ' .... '.' ...
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DRAFT

DEPARTMENT OF ENVIRONMENTAL QUALITY

ENFORCEMENT GUIDANCE

For Field Staff

- October 1, 1994
ENFORCEMENT GUIDANCE

Table of Contents

Introduction and Explanation

Additional General Guidance

Classification of Violations

Air Quality Violations

Noise Control Violations

Water Quality Violations

On-Site Sewage Violations

Solid Waste Violations

Waste Tire Violations

UST Violations

Hazardous Waste Violations

Spill & Release Violations

PCB Violations

Used Oil Violations

ECD Violations

NON Guidance

Response "A"

Response "B"

Response "alb"

Response "AlB"

Specific Guidance for AlB Response

Response "C"

Additional Guidance for Hazardous Waste

NPV NON Guidance

Response "D"

Response "E"

Response "F"

Post NPV Violations and NON Guidance

Page

2

3

5

9

10

12

14

17

18

21

23

24

25 (0, 26

27

27

27

27

28

30

31

32

33

35

37

(/'1 J

Page-l

Enforcement Guidance (10-1-94)
'.j'

INTRODUCTION AND EXPLANATION OF ENFORCEMENT GUIDANCE

This guidance is to be used by DEQ field staff to assist in achieving statewide consistency for

enforcement response to specific violations.

The first step in the enforcement process after violations are documented is to issue a NON as

is required by OAR 340-12-041(1). The NON should accomplish the following three objectives:

(1) Accurately describe the violation and the law or rule violated, (2) inform the violator what

needs to be done to correct the violation and (3) inform the violator of the possible enforcement

consequences as a result of the violation.

The following guidance language should be incorporated into NONs. The language describes

what additional enforcement action mayor may not be taken. A letter code has been placed next

to each of the violations classified in Division 12 (see pages 5-26). This letter code represents

the enforcement response for that violation. There are two or three columns containing potential

responses. Each of these letter coded enforcement responses include specific language for staff

to incorporate into their NONs to inform the violator of the enforcement consequences of the

violation (see pages 27-41). A summary of each of the responses follow:

• Response A: is for violations that are being referred to the Enforcement Section for a

formal enforcement action which may result in the assessment of a civil penalty.

Typically these are Class I violations or-serious Class II violations.

"'. \:

'--:~.

• Response B: is for violations where a civil penalty is not warranted. Typically these are

Class II violations. Based upon the nature of the violation, there are two responses.

First, if the violation is ongoing or repeated, the violator can be placed on a schedule to

correct the violation. If the schedule is not met, the violation will be referred to the

Enforcement Section for a formal enforcement action which may include a civil penalty.

Second, if the violation is a single occurrence, the violator is made aware of the

violation, requested to cooperate with the applicable law and is informed that a future

violation will be referred for civil penalty action.

• Reswnse alb & AlB: are for violations where, depending upon the specific

circumstances, either an "A" or "B" response would be appropriate. An"A" response

would be used if the violation caused environmental harm or the cause was willful;

otherwise a PB" response would be used. When AlB is capitalized, additional guidance

is given for that specific violation as to when"A" or "B" should be used (see page 28).

• Response C: is for Class ill violations and is an escalating response where the violator

.gets up to three Class ill violations before being referred for a civil penalty.

• Response D: is for Class I violations of a permit where a NPV is required to be issued.

Page-2

Enforcement Guidance (10-1-94)
• Response E: is an escalating response for Class II violations of a permit. The

Department is required to issue a NPV if the permittee has more than three NONs

containing Class II violations in a 36 month period.

(-0\. '

• Response F: is an escalating response for Class III violations of a permit as repeated or

ongoing Class m violations requires that a NPV be issued.

Response to violations occurring after an NPV has been issued

Additionally, the document sets forth guidance on how field staff should address violations by

a permittee after a NPV has been issued (see details on pages 38-41). Briefly, the responses to

subsequent violations are:

• A referral to the Enforcement Section for civil penalty assessment in the following four

cases:

• Minor and moderate Class II violations not included by (3) or (4) above receive a

warning before being referred to the Enforcement Section for the assessment of a civil

penalty.

(1)

(2)

(3)

(4)

The violation is a Class I violation;

The violation is a major magnitude Class II violation;

The violation has the same cause as the violation for which the NPV was

issued;

The violation is non-eompliance with the compliance schedule sent in

response to the NPV, which was approved by DEQ.

(:.'·"0'

• Similarly Class III violations receive two warnings before being referred to the

Enforcement Section for the assessment of a civil penalty.

Additional General Guidance:

• Please note that the NON language is written for a single violation and will need to be

modified if there is more than one violation.

• If there is more than one violation you should use the response of the most serious

. violation.

• With just cause, a formal enforcement action may be accelerated (eg. see Response "E"

on page 34). .

• With justification, a violation that merits Response "A" may receive no further formal

enforcement action beyond the NON (see page 27, "A" response).

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Enforcement Guidance (10-1-94)
• • The language given is guidance. In some cases it may not fit the circumstances of a

particular NON.

'.

• For multi-media inspections, list all violations in each program area in the NON. Most,

if not all, documented violations will be addressed in the formal enforcement action with

civil penalties.

• If you need to refer a violation for a NPV, refer all the violations (eg. if 2 Class I, 1

Class II and 4 Class III violations are documented, the NON should state that you are

referring all of the violations for a NPV).

This guidance revises the April 15, 1993 ENFORCEMENT GUIDANCE For Field Staff and

and enforcement guidance issued prior to that date.

Van Kollias

Enforcement Section Manager

Thomas Bispham

Northwest Region Administrator

Stephanie Hallock

Eastern Region Administrator

Steve Greenwood

Western Region Administrator

Fred Hansen

Director

Page-4

Enforcement Guidance (10-1-94)
CLASSIFICATION OF VIOLATIONS (0

A B (g)

A/B(2) (h)

A A/B(3) (i)

A (j)

A/B(4) (k)

alb (1)

AIR QUALITY CLASSIFICATION OF VIOLATIONS

OAR 340-12-050

Violations pertaining to air quality shall be classified as follows:

T-5 OTH

SIP ~ER

alb alb

A/B(l3)

A/B(l) D

alb· D

A D

A D

A D

A D

NO

PER ill

alb (a)

A/B(13) (b)

(c)

(d)

A (e)

A (t)

A (m)

A (n)

A (0)

A (p)

alb (q)

Class One:

Violation of a Commission or Department Order, or variance;

Constructing or operating a source without the appropriate permit;

Modifying a source with an Air Permit without first notifying and

receiving approval from the Department;

Violation of a compliance schedule in a permit;

Exceeding an allowable emission level of a hazardous air pollutant.

Exceeding an emission or opacity permit limitation for a criteria

pollutant, by a factor of greater than or equal to two times the

limitation, within 10 kilometers of either a Non-Attainment Area

or a Class I Area for that criteria pollutant;

Exceeding the annual emission limitations of a permit, rule or

order;

Failure to perform testing, or monitoring, required by a permit,

rule or order;

Systematic failure to keep records required by a permit, rule or

order;

Failure to submit semi-annual Compliance Certifications;

Failure to file a timely application for a Federal Operating Permit

. pursuant to OAR 340-28-2120;

Exceedances of operating limitations that limit the potential to emit

of a synthetic minor source and that result in emissions above the

Federal Operating Permit permitting thresholds pursuant to OAR

340-28-110(57);

Causing emissions that are a hazard to public safety;

Failure to comply with Emergency Action Plans or allowing

excessive emissions during emergency episodes;

Violation of a work practice requirement for asbestos abatement

projects which causes a potential for public exposure to asbestos

or release of asbestos into the environment;

Storage or accumulation of friable asbestos material or asbestoscontaining waste material from an asbestos abatement project

which causes a potential for public exposure to asbestos or release

of asbestos into the environment;

Visible emissions of asbestos during an asbestos abatement project

or during collection, processing, packaging, transportation, or

disposal of asbestos-eontaining waste material; .

(0

T-S I SIP

OTH PER

NO.PER

= Violation of a Title V or SIP required .permit condition

= Violation of a non-Title V or non-SIP required permit condition Page-5

= Violation of a requirement not required by an air permit Enforcement Guidance (10-1-94)
.1 T-5 OTH NO

SIP PER PER

A/B(5) (r) Conduct of an asbestos abatement project by a person not licensed

as an asbestos abatement contractor;

A (s) Violation of a disposal requirement for asbestos-containing waste

material which causes a potential for public exposure to asbestos

or release of asbestos into the environment;

B (t) Advertising to sell, offering to sell or selling a non-eertified wood

stove;

A (u) Illegal open burning in violation of OAR 340-23-042(2);

A (v) Causing or allowing open field burning without first obtaining a

valid open field burning permit;

A (w) Causing or allowing open field burning or stack burning where

prohibited by OAR 340-26-010(7) or OAR 340-26-055(4);

A (x) Causing or allowing any propane flaming which results in visibility

impairment on any Interstate Highway or Roadway specified in

OAR 837-110-080(1) and (2);

alb (y) Failing to immediately and actively extinguish all flames and

smoke sources when any propane flaming results in visibility

impairment on any Interstate Highway or Roadway specified in

OAR 837-110-080(1) and (2); I

alb (z) Causing or allowing propane flaming of grass seed or cereal grain I ., t. crops, stubble, or residue without first' obtaining a valid propane e,

flaming burning permit; - r:

alb (aa) Stack or pile burning grass seed or cereal grain crop residue ..... , ..

~,.

without first obtaining a valid stack or pile burning permit;

A (bb) Open field burning, propane flaming, stack or pile burning when ,

State Fire Marshal restrictions are in effect;

_.

alb (cc) Causing or allowing propane flaming which results in sustained .. open flame in a fire safety buffer zone along any Interstate

Highway or Roadway specified in OAR 837-110-080 (1) or (2);

B (dd) Failure to install vapor recovery piping in accordance with

standards set forth in OAR Chapter 340, Division 150;

AlB (ee) Installing vapor recovery piping' without first obtaining a service

provider license in accordance with requirements set forth in OAR

Chapter 340, Division 160;

A D A (ft) Submitting falsified actual or calculated emission fee data;

B D B (gg). Failure to provide access to premises or records when required by

law, rule, permit or order;

A D A (hh) Any violation related to air quality which causes a major harm or

poses a major risk of harm to public health or the environment.

ill Class Two:

alb E B (a) Exceeding emission limitations other than an annual emission \. limitation or opacity limitations by more than 5% opacity in

permits or rules;

T-5 I SIP = Violation of a Title V or SIP required permit condition

OTH PER = Violation of a non-Title V or non-SIP required permit condition Page-6

NO PER = Violation of a requirement not required by an air permit Enforcement Guidance (10-1-94)
alb (c)

OTH NO

PER PER

E B (b)

(d)

(e)

/-~

cO

/0c..

Violating standards in permits or rules for fugitive emissions,

particulate deposition, or odors;

Failure to take corrective action or maintain records of emissions

which equal or exceed emission action levels as required by OAR

340-28-620(2);

Failure to submit a complete Air Contaminant Discharge Permit

application 60 days prior to permit expiration or prior to modifying

a source;

Failure to maintain on site records when required by a permit to

be maintained on site;

Exceedances of operating limitations that limit the potential to emit

of a synthetic minor source that do not result in emissions above

the Federal Operating Permit permitting thresholds pursuant to

OAR 340-28-110(57);

Illegal open burning of commercial, construction and/or

demolition, and/or agricultural waste;

Failing to comply with notification and reporting requirements in

a permit;

Failure to comply with asbestos abatement licensing, certification,

or accreditation requirements;

Failure to provide notification of an asbestos abatement project;

Failure to display permanent labels on a certified woodstove;

Alteration of a permanent label for a certified woodstove;

Failure to use Department-approved vapor control equipment when

transferring fuel;

Operating a vapor recovery system without first obtaining a piping

test performed by a licensed service provider as required by OAR

Chapter 340, Division 160;

Failure to obtain Department approval prior to installing a Stage

II vapor recovery system not already registered with the

Department as specified in Department rules;

Failure to actively extinguish all flames and major smoke sources

from open field or stack burning when prohibition conditions are

imposed by the Department or when instructed to do so by an

agent or employee of the Department;

. Causing or allowing a propane flaming operation to be conducted

in a manner which causes or allows an open flame to be

sustained;

Installing, .servicing, repairing, disposing of or otherwise treating

automobile air conditioners without recovering and recycling

chlorofluorocarbons using approved. recovery and recycling

equipment;

(h)

(t)

A/B(S) (i)

alb (P)

alb (g)

B (n)

B

alb (q)

B (0)

B (r)

B G)

B (k)

B (1)

alb (m)

alb

E

alb

alb

alb

B

T-S

SIP

B

B

T-S I SIP

OTH PER·

NO PER

= Violation of a Title V or SIP required permit condition

= Violation of a non-Title V or non-51P required permit condition Page-7

= Violation of a requirement not required by an air permit Enforcement Guidance (10-1-94)
T-5

SIP

B

OTH NO

PER PER

B

B

B

B

B

E B

c

c

c

c

(s)

(t)

(u)

(v)

(w)

(x)

ill

(a)

(b)

(c)

(d)

Selling, or offering to sell, or giving as a sales inducement any

aerosol spray product which contains as a propellant any

compound prohibited under ORS 468A.655;

Selling any chlorofluorocarbon or halon containing product

prohibited under ORS 468A.635;

Failure to pay an emission fee;

Substantial underpayment of an emission fee;

Submitting inaccurate emission fee data;

Any violation related to air quality which IS not otherwise

classified in these rules.

Class Three:

Illegal residential open burning;

Improper notification of an asbestos abatement project;

Failure to display a temporary label on a certified wood stove;

Exceeding opacity limitation in permits or rules by 5% opacity or _

less.

'I

.• 1

T-S I SIP

OTH PER

NO PER

= Violation of a Title V or SIP required permit condition

= Violation of a non-Title V or non-SIP required permit condition Page-8

= Violation of a requirement not required by an air permit Enforcement Guidance (10-1-94)
NOISE CONTROL CLASSIFICATION OF VIOLATIONS

OAR 340-12-052

Violations pertaining to noise control shall be Classified as follows:

(l) Class One:

(a) Violation of a Commission or Department order or variance;

(b) . Violations that exceed noise .standards by ten (10) decibels or

more;

(c) Exceeding the ambient degradation rule by five (5) decibels or

more; or

(d) Failure to submit a compliance schedule required by OAR 340-35-

. 035(2);

(e) Operating a motor sports vehicle without a properly installed or

well-maintained muffler or exceeding the noise standards set forth

in OAR 340-35-040(2); .

(f) Operating a new permanent motor sports facility without

submitting and receiving approval of projected noise impact

boundaries;

(g) Failure to provide access to premises or records when required by

law, rule, or order;

(h) Violation of motor racing curfews set forth in OAR 340-35-040(6);

(i) Any violation related to noise control which causes a major harm

or poses a major risk of harm to public health or the environment.

(2) Class Two:

(a) Violations that exceed noise standards by three (3) decibels or

more;

(b) Advertising or offering to sell or selling an uncertified racing

vehicle without displaying the required notice 'or obtaining a

notarized affidavit of sale;

(c) Any violation related to noise control which is not otherwise

classified in these rules.

(3) Class TIlree:

Violations that exceed noise standards by one (1) or two (2)

decibels are Class III violations;

(--.

··0

PER = NOP = Violation of a Permit Condition

Violation not involving a permit condition

Page-9

Enforcement Guidance (10-1-94)
I

I

~-­,<:;:'

(c)

(d)

(e)

(t)

(b)

(h)

(g)

(d)

(e)

(c)

(t)

\VATER QUALITY CLASSIFICATION OF VIOLATIONS

OAR 340-12-055

Violations pertaining to water quality shall be classified as follows:

(1) Class One:

(a) Violation of a Commission or Department Order;

(b) Any discharge of waste that enters waters of the state, either

without a waste discharge permit or from a discharge point not

authorized by a waste discharge permit;

Failure to comply with statute, rule, or permit requirements

regarding notification of a spill or upset condition which results in

a non-permitted discharge to public waters;

Violation of a permit compliance schedule;

Any violation of any pretreatment standard or requirement by a

user of a municipal treatment works which either impairs or

damages the treatment works, or causes a major harm or poses a

major risk of harm to public health or the environment;

Failure to provide access to premises or records when required by

law, rule, permit or order;

Failure of any ship carrying oil to have financial assurance as

required in ORS 468B.300 to 468B.335 or rules adopted .--

thereunder; .~:

Any violation related to water quality which causes a major harm

or poses a major risk of harm to public health or the environment.

(2) Class Two:

(a) Operation of a disposal system without first obtaining a Water

Pollution Control Facility Permit;

Failure to submit a report or plan as required by rule permit, or -j

license;

Any violation of OAR Chapter 340, Division 49 regulations

pertaining to certification of wastewater system operator personnel;

Placing wastes such that the wastes are likely to enter public

waters by any means;

Failure by any ship carrying oil to keep documentation of financial

assurance on board or on file with the Department as required by

ORS 468B.300to 468B.335 or rules adopted thereunder;

Any violation related to water quality which is not otherwise

classified in these rules.

(3) Class Three:

(a). Failure to submit a discharge monitoring report on time;

(b) Failure to submit a complete discharge monitoring report;

A

A

A

alb

alb

alb

B

B

alb

B

C

C

B

PER NOP

alb

D A/B(6)

D

D

D

D

D

E

E

E

E

F

F

_.

•

:-.

PER = NOP = Violation of a Permit Condition

Violation not involving a permit condition

Page-l0

Enforcement Guidance (10-1-94)
PER Nap , .-.""'".....

F C (c) Exceeding a waste discharge permit biochemical oxygen demand fO

(BOD), carbonaceous biochemical oxygen demand (CBOD), or

total suspended solids (fSS) limitation by a concentration of 20 per

cent or less, or exceeding a mass loading limitation by 10 per cent

or less;

F C (d) Violation of a removal efficiency requirement by a factor of less

than or equal to O.B times the number value of the difference

between 100 and the applicable removal efficiency requirement

(e.g., if the requirement is 65% removal, 0.2 (100-65) = 0.2

(35) = 7%; then 7% would the maximum percentage that would

qualify under this rule for a permit with a 65 % removal efficiency

requirement);

F C (e) Violation of a pH requirement by less than 0.5 pH;

(0-

PER = NOP = Violation of a Permit Condition

Violation not involving a permit condition

Page-I I

Enforcement Guidance (10-1-94)
ON-SITE SEW AGE DISPOSAL CLASSIFICATION OF VIOLATIONS

OAR 340-12-060

Violations pertaining to On-Site Sewage Disposal shall be classified as

follows:

A/B(S) (c)

PER NOP 0)

alb (a)

A/B(T) (b)

(f)

(e)

(d)

(e)

(b)

(d)

(c)

Class One:

Violation of a Commission or Department order;

Performing, advertising or representing one's self as being in the

business of performing sewage disposal services without first

obtaining and maintaining a current sewage disposal service license

from the Department;

Installing or causing to be installed an on-site sewage disposal

system or any part thereof, or repairing any part thereof, without

first obtaining a permit;

Disposing of septic tank, holding tank, chemical toilet, privy or

other treatment facility contents in a manner or location not

authorized by the Department;

Failure to provide access to premises or records when required by

law, rule, permit or order;

Any violations related to on-site sewage disposal which cause

major harm or pose a major risk of harm to public health, welfare,

safety or the environment.

(2) Class Two:

(a) Installing or causing to be installed an on-site sewage disposal

system, or any part thereof, or the repairing of any part thereof,

which fails to meet the requirements for satisfactory completion

within thirty (30) days after written notification or posting of a

Correction Notice at the site;

Operating or using a nonwater-carried waste disposal facility

without first obtaining a letter of authorization from the Agent;

Operating or using a newly constructed, altered or repaired on-site

sewage disposal system, or part thereof, without first obtaining a

Certificate of Satisfactory Completion;

Providing any sewage disposal service in violation of any statute,

rule, license, or permit, provided that the violation is not otherwise

classified in these rules;

Failing to obtain an authorization notice from the Agent prior to

affecting change to a dwelling or commercial facility that results

in the potential increase in the projected peak sewage flow from

the dwelling or commercial facility in excess of the sewage

disposal system's peak design flow.

A

A

B

B

B

B

B

B

•

:.

PER = NOP = Violation of a Permit Condition

Violation not involving a permit condition

Page-12

Enforcement Guidance (10-1-94)
PER NOP

B

B

B

B

C

(t) Installing or causing to be installed a nonwater-carried waste

disposal facility without first obtaining written approval from the

Agent;

(g) Failing to connect all plumbing fixtures to, or failing to discharge

waste water or sewage into, a Department approved system;

(h) Operating or using an on-site sewage disposal system which is

failing by discharging sewage or effluent onto the ground surface

or into surface public water;

(i) Any violation related to on-site sewage disposal which is not

otherwise classified in these rules.

(3) Class Three:

Violations where the sewage disposal system design flow is not

exceeded, placing.an existing system into service, or changing the

dwelling or type of commercial facility, without first obtaining an

authorization notice are Class III violations.

PER = NOP = Violation of a Permit Condition

Violation not involving a permit condition

Page-13

Enforcement Guidance (1Q.;1-94)
• SOLID WASTE MANAGEMENT CLASSIFICATION OF VIOLATIONS

OAR 340-12-065

Violations pertaining to the management, recovery and disposal of solid waste

shall be classified as follows:

PER SubD NOP (1)

D alb alb (a)

D alb A/B(9) (b)

•

'-'.

D

D

D

D

D

D

D

D

D

D

A

A

B

alb

alb

alb

alb

A

alb

B

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(k)

(1)

Class One:

Violation of a Commission or Department Order;

Establishing, expanding, maintaining or operating a disposal site

without first obtaining a permit;

Accepting solid waste for disposal in a permitted solid waste unit

or facility that has been expanded in area or capacity without first

submitting plans to the Department and obtaining Department

approval;

Violation of the freeboard limit which results in the actual

overflow of a sewage sludge or leachate lagoon;

Violation of the landfill methane gas concentration standards;

Violation of any federal or state drinking water standard in an

aquifer beyond the solid waste boundary of the landfill, or an

alternative boundary specified by the Department;

Violation of a permit-specific groundwater concentration limit, as

defined in OAR 340-40-030(3) at the permit-specific groundwater

concentration compliance point, as defined in OAR 340-40-

030(2)(e);

Failure to perform the groundwater monitoring action requirements

specified in OAR 340-40-030(5), when a significant increase (for

pH, increase or decrease) in the value of a groundwater monitoring

parameter is detected.

Impairment of the beneficial uses(s) of an aquifer beyond the solid

waste boundary or an alternative boundary specified by the

Department;

Deviation from the approved facility plans which results in an

actual safety hazard, public health hazard or damage to the

environment;

Failure to properly construct and maintain groundwater, surface

water, gas or leachate collection, treatment, disposal and

monitoring facilities in accordance with the facility permit, the

facility environmental monitoring plan, or Department rules;

Failure to collect, analyze and report groundwater, surface water

or leachate quality data in accordance with the facility permit, the

facility environmental monitoring plan, or Department rules;

PER

Sub D

NOP

= Violation of a permit condition by a non Subtitle D landfill

= Violation of a permit condition by a Subtitle D landfiII

= Violation not involving a permit condition

Page-14

Enforcement Guidance (10-1-94)
PER SubD NOP / ..-.;;.....

D alb (m) Violation of a compliance schedule contained in a solid waste (.0

disposal or closure permit;

D B B (n) Failure to provide access to premises or records when required by

law, rule, permit or order;

D A A (0) Knowingly disposing, or accepting for disposal, used oil, in single

quantities exceeding 50 gallons, or lead acid batteries;

D alb (P) Accepting, handling, treating or disposing of clean-up materials

contaminated by hazardous substances by a landfill in violation of

the facility permit and plans as approved by the Department or the

provisions of OAR 340-61-060.

D A A (q) Accepting for disposal infectious waste not treated in accordance

with laws and Department rules;

D A A (r) Accepting for treatment, storage or disposal wastes defined as

hazardous under ORS 466.005, et seq, or wastes from another

state which are hazardous under the laws of that state without

specific approval from the Department;

D B B (s) Mixing for disposal or disposing of principal recyclable material

that has been properly prepared and source separated for recycling;

D A A (t) Any violation related to the management, recovery and disposal of

. solid waste which causes major harm or poses a major risk of

harm to public health or the environment.

(2) Class Two:

E alb (a) VIolation of a condition or term of a Letter of Authorization; (0

E alb alb (b) Knowingly accepting for disposal or disposing of a material banned

from land disposal under ORS 459.247, except those materials

specified as Class I violations.

E B (c) Failure of a permitted landfill, solid waste incinerator or a

municipal solid waste compost facility operator or a metropolitan

service district to report amount of' solid waste disposed in

accordance with the laws and rules of the Department;

E B (d) Failure to report weight and type of material recovered or

processed from the solid waste stream in accordance with the laws

and rules of the Department;

E B (e) Failure of a disposal site to obtain certification for recycling

programs in accordance with the laws and rules of the Department

prior to accepting solid waste for disposal;

E ·B (t) Acceptance of solid waste by a permitted disposal site from a

person that does not have an approved solid waste reduction

program in accordance with the laws and rules of the Department;

PER

Sub D

NOP

= Violation of a permit condition by a non Subtitle D landfill

= Violation of a permit condition by a Subtitle 0 landfill

= Violation not involving a permit condition

Page-15

Enforcement Guidance (10-1-94)
•

•

PER

E

E

E

E

E

F

F

SubD NOP

B

alb

alb

alb

B

c

c

(g) Failure to comply with any solid waste permit requirement

pertaining to permanent household hazardous waste collection

facility operations;

(h) Failure to comply with landfill cover requirements, including but

not limited to daily, intermediate, and final covers, and limitation

of working face size;

(i) Failure to comply with site development and operational plans as

approved by the Department;

(j) Failure to submit a permit renewal application prior to the

expiration date of the existing permit in accordance with the laws

and rules of the Department;

(k) Any violation related to solid waste, solid waste reduction, or any

violation of a solid waste permit not otherwise classified in these

rules.

(3) Class Three:

(a) Failure to post required signs;

(b) Failure to control litter;

PER

Sub D

NOP

= Violation of a permit condition by a non Subtitle 0 landfill

= Violation of a permit condition by a Subtitle D landfill

= Violation not involving a permit condition

Page-16

Enforcement Guidance (10-1-94)
'"

SOLID \VASTE TIRE l\'1ANAGEMENT CLASSIFICATION OF VIOLATIONS

OAR 340-12-066 (b

Violations pertaining to the storage, transportation and management

of waste tires or tire-derived products shall be classified as follows:

PER NOP (1) Class One:

D alb (a) Violation of a Commission or Department Order;

alb (b) Disposing of waste tires or tire-derived products at an unauthorized

site;

D (c) Violation of tpe compliance schedule or fire safety requirements of

a waste tire storage site permit;

A/B(T) (d) Hauling waste tires or advertising or representing one's self as

being in the business of a waste tire carrier without first obtaining

a waste tire carrier permit as required by laws and rules of the

Department;

B (e) Hiring or otherwise using an unpermitted waste tire carrier to

transport waste tires;

D B (t) Failure to provide access to premises or records when required by

law, rule, permit or order;

D A (g) Any violation related to the storage, transportation or management

of waste tires or tire-derived products which causes major harm or

poses a major risk of harm to public health or the environment.

(2) Class Two:

E (a) Violation of a waste tire storage site or waste tire carrier permit

other than a specified Class One or Class Three violation; CO

E alb (b) Establishing, expanding, or operating a waste tire storage site

without first obtaining a permit;

E B (c) Any violation related to the storage, transportation or management

of waste tires 'or tire-derived products which is not otherwise

classified in these rules.

(3) Class Three:

F C (a) Failure to submit required annual reports in a timely manner;

F C (b) Failure to keep required records on use of vehicles;

F C (c) Failure to post required signs;

F C (d) Failure to submit a permit renewal application in a timely manner;

F C (e) Failure to submit permit fees in a timely manner;

F C (t) Failure to maintain written records of waste tire disposal and

generation;

PER = Violation of a permit condition

NOP = Violation not involving a permit condition

.Page-17

Enforcment Guidance
A/B(T) (k)

(d)

(e)

(c)

(g)

(h)

(i)

(0

alb

alb

alb

alb

alb

alb

B

A

B

B

PER NOP

alb

alb

UNDERGROU1\TJ) STORAGE TANK CLASSIFICATION OF VIOLATIONS

OAR 340-12-067

Violations pertaining to Underground Storage Tanks and cleanup of

petroleum contaminated soil at heating oil tanks shall be classified as

follows:

(1) Class One:

(a) Violation of a Commission or Department Order;

(b) Failure to report a release from an underground storage tank or

a heating oil tank as required by statute, rule or permit;

Failure to initiate and complete the investigation or cleanup of a

release from an underground storage tank or a heating oil tank;

Failure to prevent a release from an underground storage tank;

Failure to submit required reports from the investigation or

cleanup of a release from an underground storage tank or heating

oil tank;

Failure to provide access to premises or records when required by

law, rule, permit or order;

Placement of a regulated material into an unpermitted underground

storage tank;

Installation of an underground storage tank in violation of the

standards or procedures adopted by the Department;

Failure to initiate and complete free product removal in accordance

with OAR 340-122-235;

Failure to initiate and complete the investigation or cleanup of a

release from a heating oil tank;

Providing installation, retrofitting, decommissioning, or testing

services on an underground storage tank or providing cleanup of

petroleum contaminated soil at an underground storage tank site

without first registering or obtaining an underground storage tank

service providers license;

Supervising the installation, retrofitting, decommissioning, or

testing of an underground storage tank or supervising cleanup of

petroleum contaminated soil at an underground storage tank site

without first obtaining an underground storage tank supervisors

license;

(m) Any other violation related to underground storage tanks or heating

oil tanks or cleanup of petroleum contaminated soil at heating oil

tanks which cause major harm or poses a major risk of harm to

public health or the environment.

(2) Class Two:

(a) Failure to conduct required underground storage tank monitoring

and testing activities;

•

•

I.

PER = Violation of a permit condition

NOP = Violation not involving a permit condition

Page-IS

Enforcment Guidance
A/B(T) (i)

co

(0)

(b)

(g)

(c)

(t)

(n)

(1)

(h)

Failure to conform to operational standards for underground

storage tanks and leak detection systems;

Failure to obtain a permit prior to the installation or operation of

an underground storage tank;

Failure to properly decommission an underground storage tank;

Providing installation, retrofitting, decommissioning or testing

services on a regulated underground storage tank or providing

cleanup of petroleum contaminated soil at a regulated underground

storage tank that does not have a permit;

Failure by a seller or distributor to obtain the tank permit number

before depositing product into the underground storage tank or

failure to maintain a record of the permit numbers;

Allowing the installation, retrofitting, decommissioning, or testing

of an underground storage tank or cleanup of petroleum

contaminated soil at an underground storage tank by any person

not licensed by the department;

Allowing cleanup of petroleum contaminated soil at a heating oil

tank by any person not licensed by the Department;

Providing petroleum contaminated soil cleanup services at a

heating oil tank without first registering or obtaining a heating oil

tank soil matrix cleanup service provider license;

Providing supervision of petroleum contaminated soil at a heating

oil tank without first registering or obtaining a heating oil tank soil

matrix cleanup supervisor license;

Supervising petroleum contaminated soil cleanup at a heating oil

tank without first registering or obtaining a heating oil tank soil

matrix cleanup supervisor license;

Failure to submit a corrective action plan (CAP) in accordance

with the schedule or format established by the Department

pursuant to OAR 340-122-250.

(m) Failure by the tank owner to provide the permit number to persons

depositing product into the underground storage tank; .

Failure to report a suspected release from an underground storage

tank.

Any other violation related to underground storage tanks or heating

oil tanks or cleanup of petroleum contaminated soil at a heating oil

tank that is not otherwise classified in these rules.

(3)' Class Three:

(a) Failure to submit an application for a new permit when an

underground storage tank is acquired by a new owner;

B (d)

A/B(T) (e)

c

B

B

B

B

B

B

B

B

PER NOP

B

PER = Violation of a permit condition

NOP = Violation not involving permit condition

Page-19

Enforcment Guidance
-_..._-_._~- -_.

••

••

•

PER NOP

C (b)

B (c)

B (d)

C (e)

Failure of a tank seller or product distributor to notify a tank

owner or operator of the Department's permit requirements;

Decommissioning, installing, or retrofitting an underground

storage tank or conducting a soil matrix cleanup without first

providing the required notifications to the Department;

Failure to provide information to the Department regarding the

contents of an underground storage tank;

Failure to maintain adequate decommissioning records;

PER = Violation of a permit condition

NOP = Violation not involving a permit condition

Page-20

Enforcment Guidance
HAZARDOUS \VASTE l\:lANAGEMENT AND DISPOSAL

CLASSIFICATION OF VIOLATIONS

OAR 340-12-068

Violations pertaining to the management and disposal of hazardous

waste shall be classified as follows:

For all hazardous waste violations check the Additional Guidance for Hazardous

Waste violations on page 31.

.:'0-0

PER NOP. (1)

alb (a)

A/B(lO) (b)

A/B(ll) (c)

alb (d)

A (e)

A (f)

B (g)

B (h)

alb (i)

A (j)

A (k)

A 0)

B (m)

B (n)

alb (0)-

A (p)

A (q)

Class One:

Violation of a Department or Commission order;

Failure to carry out waste analysis for a waste stream or to

properly apply "knowledge of process";

Operating a treatment, storage or disposal facility (TSD) without

a permit or without meeting the requirements of OAR 340-105-010

(2)(a);

Failure to comply with the ninety (90) day storage limit by a fully

regulated generator or the 180 day storage limit for a small

quantity generator where there is a gross deviation from the

requirement;

Shipment of hazardous waste without a manifest;

Systematic failure of a generator to comply with the manifest

system requirements;

Failure to satisfy manifest discrepancy reporting requirements;

Failure to prevent the unknown entry or prevent the possibility of

the unauthorized entry of persons or livestock into the waste

management area of a TSD facility;

Failure to properly handle ignitable, reactive, or incompatible

wastes as required under 40 CFR Part 264 and 265.17(b)(l),(2),

(3),(4) and (5);

Illegal disposal of hazardous waste;

Disposal of waste in violation of the land disposal restrictions;

Mixing, solidifying, or otherwise diluting waste to circumvent land

disposal restrictions;

Incorrectly certifying a waste for disposal/treatment in violation of

the land disposal restrictions;

Failure to submit notificationsrcertifications as required by land

disposal restrictions;

Failure to comply with the tank integrity assessments and

certification requirements;

Failure of an owner/operator of a TSD facility to have closure

and/or post closure plan and/or cost estimates;

Failure of an owner/operator of a TSD facility to retain an

independent registered professional engineer to oversee closure

activities and certify conformity with an approved closure plan;

co

PER = Violation of a permit condition

NOP = Violation not involving a permit condition

o Page-21

Enfon:ment Guidance
A/B(12) (u)

(t)

(r)

(s)

(v)

(w)

(bb)

(aa)

(x)

(y)

(z)

(dd)

(cc)

(ee)

(ff)

(gg)

Failure to establish or maintain financial assurance for closure

and/or post closure care;

Systematic failure to conduct unit specific and general inspections

as required or to correct hazardous conditions discovered during

those inspections;

Failure to follow emergency procedures contained in response plan

when failure could result in serious harm;

Storage of hazardous waste in containers which are leaking or

present a threat of release;

Systematic failure to follow container labeling requirements or lack

of knowledge of container contents;

Failure to label hazardous waste containers where such failure

could cause an inappropriate response to a spill or leak and

substantial harm to public health or the environment;

Failure to date containers with accumulation date;

Failure to comply with the export requirements;

Violation of any TSD facility permit, provided that the violation

is equivalent to any Class I violation set forth in these rules;

Systematic failure to comply with OAR 340-102-041, generator

annual reporting requirements and OAR 340-102-012, annual

registration information;

Systematic failure to comply with OAR 340-104-075, Treatment,

Storage, Disposal and Recycling facility annual reporting

requirements and OAR 340-102-012, annual registration

information;

Construct or operate a new treatment, storage or disposal facility

without first obtaining a permit;

Installation of inadequate groundwater monitoring wells such that

detection of hazardous waste or hazardous constituents that migrate

from the waste management area cannot be immediately be

detected;

Failure to install any groundwater monitoring wells;

Failure to develop and follow a groundwater sampling and analysis

plan using proper techniques and procedures;

Failure to provide access to premises or records when required by

law, rule, permit or order;

Any violation related to the generation, management and disposal

of hazardous waste which causes major harm or poses a major risk

of harm to public health or the environment.

(2) Class Two:

Any violation pertaining to the generation, management and

disposal of hazardous waste which is not otherwise classified in

these rules is a Class Two violation .

(hh)

A

A

alb

alb

A

alb

A

B

alb

B

B

A

A

B

B

B

PER NOP

A

•

•

•

PER = Violation of a permit condition

NOP = Violation not involving a permit condition

Page-22

Enforcment Guidance
(0

(e)

(d)

(c)

(t)

A

A

B

alb

alb

OIL AND HAZARDOUS l\'1ATERIAL SPILL AI\TI RELEASE

CLASSIFICATION OF VIOLATIONS

OAR 340-12-069

Violations pertaining to spills or releases of oil or hazardous materials

shall be classified as follows:

0) Class One:

(a) Violation of a Commission or Department Order;

(b) Failure to provide access to premises or records when required by

law, rule, permit or order;

Failure by any person having ownership or control over oil or

hazardous materials to immediately cleanup spills or releases or

threatened spills or releases;

Failure by any person having ownership or control over oil or

hazardous materials to immediately report all spills or releases or

threatened spills or releases in amounts equal to or greater than the

reportable quantity;

Any violation related to the spill or release of oil or hazardous

materials which causes a major harm or poses a major risk of

harm to public health or the environment;

Any spill or release of oil or hazardous materials which enters

waters of the state.

(2) Class Two:

Any violation related to the spill or release of oil or hazardous

materials which is not otherwise classified in these rules is a Class

Two violation

PER NOP

alb

B

PER =Violation of a permit condition

NOP = Violation not involving a permit condition

Page-23

Enforcment Guidance
•

\.'......

PER NOP

alb

A

A

B

A

B

B

PCB CLASSIFICATION OF VIOLATIONS

OAR 340-12-071

Violations pertaining to the management and disposal of

polychlorinated biphenyls (PCJJ) shall be classified as follows:

0) Class One:

(a) . Violation of a Commission or Department Order;

(b) Treating or disposing of PCBs anywhere other than at a permitted

PCB disposal facility:

(c) Establishing, constructing or operating a PCB disposal facility

without first obtaining a permit;

(d) Failure to provide access to premises or records when required to

by law, rule, permit or order;

(e) Any violation related to the management and disposal of PCBs

which causes a major harm or poses a major risk of harm to public

health or the environment.

(2) Class Two:

(a) Violating a condition of a PCB disposal facility permit;

(b) Any violation related to the management and disposal of PCBs

which is not otherwise classified in these rules.

1

•• 1

PER = Violation of a permit condition

NOP = Violation' Dot involving a permit condition

Page-24

Enforcment Guidance
USED OIL l\1ANAGEMENT CLASSIFICATION OF VIOLATIONS

OAR 340-12-072

Violations pertaining to the management of used oil shall be classified

as follows:

(1) Class One:

(a) Using untested used oil as a dust suppressant or pesticide, or

otherwise spreading untested used oil directly in the environment,

if the quantity of oil spread exceeds 50 gallons per event;

(b) Spreading used oil contaminated with hazardous waste or failing

to meet the limits for materials set in OAR 340.;.111-030;

(c) Any violation related to the management of used oil which causes

major harm or poses a major risk of harm to public health or the

environment.

(d) Failure to provide access to premises or records when required to

do so by law, rule, permit or order.

(2) Class Two:

(a) Failure to notify the Department of activities relating to spreading

used oil;

(b) Any violation related to the management of used oil which is not

otherwise classified in these rules.

Note: On March 13, 1994 these violations were made moot by the EQC's adoption of the

Federal rules which do not allow for the use of used oil as a dust suppressant.

·'c--"~· I \ \. l

co

PER = Violation of a permit condition

NOP. = Violation not involving a permit condition

Page-25

Enforcment Guidance
A (c)

B

B

ENVIROm'1ENTAL CLEANUP CLASSIFICATION OF VIOLATIONS

OAR 340-12-073

Violations of ORS 465.200 through 465.420 and related rules or orders

pertaining to environmental cleanup shall be classified as follow:

(1) Class One:

(a) Violation of a Commission or Department order;

(b) Failure to provide access to premises or records when required to

do so by law, rule, permit or order;

Any violation related to environmental investigation or cleanup

which causes a major harm or poses a major risk of harm to public

health or the environment.

(2) Class Two:

(a) Failure to provide information under ORS 465.250;

(b) Any violation related to environmental investigation or cleanup

which is not otherwise classified in these rules.

PER NOP

alb

B

•

i, •

•

PER· = Violation of a permit condition

NOP = Violation not involving a permit condition

Page-26

Enforcment Guidance
RESPONSE "A"

Response" A" informs the violator that the violation is being referred to the Enforcement Section

with a recommendation for the assessment of a civil penalty. Therefore the following language

should be incorporated into the Notice of Noncompliance (NON):

"This is a Class I violation and is considered to be a serious violation of Oregon

environmental law. Therefore, we are referring this violation to the Department's

Enforcement Section with a recommendation to initiate a formal enforcement action.

A formal enforcement action may include a civil penalty assessment for each day of

violation. "

With justification, a violation that receives an "A" Response, may be sent an NON with the "B"

Response. The inspector involved must write ajustification memo that needs to be routed to and

agreed to by the inspector's Manager, Regional Administrator, the Enforcement Section Manager

and the Enforcement Administrator.

RESPONSE "B"

Response "B" informs the violator that if a particular set of steps are not taken to correct the

violation(s) the violation(s) will be referred to the Enforcement Section with a recommendation

to assess a civil penalty. Therefore, the NON should set forth a specific schedule to bring the

violator into compliance, (or if this is a one time event, use the alternative language included

below) and state: .

"This is a Class I (or ill violation and is considered to be a significant violation of

Oregon environmental law. Should you fail to correct the violation in accordance

with the schedule set forth above {or: "should a similar violation occur"}, we will

refer your me to the Department's Enforcement Section with a recommendation to

proceed with a formal enforcement action which may result in a civil penalty

assessment. Civil penalties can be assessed for each day of violation. "

RESPONSE "alb" & "AlB"

o

co

"alb:" The enforcement response depends upon an evaluation of the environmental

seriousness andlor cause of the violation. If there was serious environmental

harm or if the violation was willful or if the violator has received a previous

NON for the same violation, an "A" response shall be used.

See and apply the alb response given above. In addition, when "AlB" is

capitalized there is more specific guidance that can assist in making the

determination of the response. Refer to the following notes when the response

is "AlB"

Page-27

Enforcement Guidance (10-1-94)
• Notes on "AlB" Responses

The following specific guidance for the Response "AlB" shows when to use the "A" response

and when to use the "B" response.

(1) "A" response if PSD or NSR is violated, otherwise "B" response is used.

(2) "A" response if the failure prevents compliance determination, "B" response if the

violation can be corrected and compliance determination is possible.

(3) "A" response if the source is environmentally sophisticated, otherwise the "B" response

is used.

(4) "A" response if the source is on the Federal Operating Permit call in list. "B" response

if the source has been unidentified.

(5) "A" response when the contractor is more sophisticated and has some knowledge that

helshe may be dealing with asbestos. "B" response when the contractor is less

sophisticated (eg. a handyman or a person not licensed by the Contractors Board and

need not be).

•

(6)

(7)

(8)

(9)

"A" response when the discharge was avoidable (eg. a worker at a sewage treatment

plant fails to reset pumps to automatic). "B" response when the discharge is unavoidable"

(eg. a pipe ruptures unexplainably even though there is a good inspection program).

"A" response if the person was previously licensed or permitted, previously told to be

licensed or permitted, or if the violator caused environmental harm. "B" response

wherein the violator is told to get a license or permit by a specific date (send application

forms with the NON and be reasonable about the date due to potential classes or

examinations that may need to be taken). If the violator does not get licensed or

permitted by the date indicated, refer the initial violation to Enforcement for a civil

penalty.

"A" response if the "B" response does not apply. "B" response if the violation is caused

by a property owner. "B" response if the violation is caused by a licensed installer who

immediately obtained the permit and this installer has no previous history of installing

or repairing without a permit.

"A" response when the violator accepts a significant amount of solid waste from the

public for a fee. "B" response when an individual establishes a solid waste dump on

his/her own property.

If the violation referred is for failure to make a hazardous waste determination, one of

the following must apply to the violator:

•

(10)

(1) The violator is a large company with a dedicated environmental staff.

Page-28

Enforcement Guidance (10-1-94)
(2) The violator is not a large company with dedicated environmental staff but:

(a) A sample was taken by DEQ and the waste was determined to be

hazardous; or _

(b) No sample was taken by DEQ but the waste is a listed hazardous waste;

or

(c) No sample was taken by DEQ but the Regional Hazardous Waste Manager

is confident that the waste would test hazardous; or

(d) No sample was taken by DEQ but pursuant to a request made in the NON

and the violator tested the waste and it was determined to be hazardous;

or

(e) No sample was taken by DEQ and the violator did not perform a

hazardous waste determination as requested in the NON.

o

(11) "A" response when the violator is acting-like a TSD (eg. accepting hazardous waste from

generators and treats, stores or disposes of the waste). "B" response when the violator

is a generator operating without a permit by storing hazardous waste and failing to meet

40 CFR 262.34 storage requirements.

(12) "A" response if hazardous waste containers are actually leaking. "B" response if

containers are in poor condition and only present a threat of release.

(13) If all four of the criteria below are met, and if the source files a timely permit application

with fees that include the appropriate (normally $400) late filing fee, then use the "B"

response. Otherwise use the "A" response.

(a) Actual emissions from the source, although it must obtain a permit due to other

requirements, are deminirnus. Deminimus is defined as equal to, or less than:

a) 2.0 tons/year of any combination of particulate emissions;

b) 5.0 tons/year of any combination of all criteria and toxic pollutants; or

c) 20% of the SER, or Interim Toxic SER, of any individual pollutant.

(b) Environmental impacts from the facility, due to it operating without a permit,

were negligible.

(c) The facility has not previously held an air discharge permit, except for those

situations where the Department has previously advised the source that a permit

was no longer necessary and based on this information the source cancelled its

permit. -

(d) The only significant economic gain to the company for operating without a permit

was the avoidance of permit and compliance determination fees.

Page-29

Enforcement Guidance (l0-1-94)

(0

(0
•

••••

•

RESPONSE IICII

Response "C" is for Class Three violations. It is an escalating response based on the number

of previous NONs.

FIRST AND SECOND NON

"This is your first {second} Class ill violation. The Department requests your

cooperation in ensuring this violation does not recur. Violations of Oregon

environmental law are subject to civil penalties for each day of each violation. II

THIRD NON

"This is your third Class III violation of Oregon environmental law. Should you

again have a similar violation, we may refer your file to the Department's

Enforcement Section with a recommendation to proceed with formal enforcement"

action which may result in a civil penalty "assessment. Violations of Oregon

environmental law are subject to civil penalties for each day of violation."

REFERRAL NONs

Use one of the two alternatives below on the fourth Class III violation.

Option 1

"This is your fourth Class ill violation of Oregon environmental law. The ..

Department requests that by __, you submit a written report, detailing how you

intend to correct this violation. Should the Department not receive a satisfactory

report by the date indicated, . we will refer your violation to the Department's ,-

Enforcement Section with a recommendation to proceed with a formal enforcement

action which may result in a civil penalty assessment. Civil penalties can be assessed

for each day of violation. "

Option 2

"This is your fourth Class ill violation of Oregon environmental law. We are

referring your violation to the Department's Enforcement Section and

recommending .Iormal enforcement action including a civil penalty assessment.

Civil penalties can be assessed for each day of violation."

Page-30

Enforcement Guidance (10-1-94)
ADDITIONAL GUIDANCE FOR HAZARDOUS WASTE VIOLATIONS

Enforcement against Conditionally Exempt Generators

• The response to documented violations shall be response "B. n

• If the violator corrects the violation(s) in response to the NON, the case is closed. If the

violator does not correct the violations, refer for a Compliance Order. If the violator fails

to comply with the Compliance Order, a civil penalty will be assessed.

Enforcement against Small Ouantity Generators. Large Ouantity Generators and Treatment

Storage and Disposal Facilities that are not identified as High Priority Violators

• Follow the guidance in the main document.

• First time violators will generally be assessed a civil penalty on only one of the Class I

violations. With justification on a case-by-ease basis, civil penalties may be assessed for

multiple violations. Also with justification, on a case-by-case basis you may request no

civil penalty for first time violators. In this case prepare a justification memo to be

signed by your manager, the enforcement section manager and the regional operations

manager.

Enforcement against High Priority Violators (HPVs)

• HPVs are defined as violators who:

1. violate the law through flagrant or willful action; or

2. knowingly dispose of hazardous waste into the environment or cause a release of

hazardous waste which represents an endangerment to public health or the

environment due to the quantity, location or toxicity of the hazardous waste; or

3. are recalcitrant (having received a previous formal enforcement action and failed

to correct the violation or later committed violations of a similar nature); or

4. violate an Order or permit condition equivalent to a Class I violation; or

5. are a TSD that substantially deviates from hazardous waste regulations, or an

LQG or SQG that basically is not meeting any (or at least most) hazardous waste

management regulations.

• HPVs will generally receive a civil penalty assessment for all documented violations.

Page-31

Enforcement Guidance (10-1-94)

Co

(0
• RESPONSE "D"

(.•

••

Response "D" is used for permitted AQ (except permit requirements required by Title V or the

SIP), SW (except those on Title V permits) and WQ sources who have a documented Class One

violation. Oregon Administrative Rules reguire that a NPV be issued for all documented Class

I violations. Therefore, issue the Notice of Noncompliance (NON) and refer the case to the

Enforcement Section for a NPV. Since a NPV requires certification of full permit compliance

or a detailed plan within five days of receipt, the language in the NON is designed to inform the

permittee what it must do to comply with the NPV requirements between the time of your NON

and receipt of the NPV, thereby giving the permittee adequate time to think about how to

respond to the NPV. Therefore, use following language in the NON:

"As a result of the above documented Class I violation(s), we are referring your me

to the Department's Enforcement Section with a recommendation to issue a Notice

of Permit Violation (NPV). The NPV is a formal enforcement action which will

require that you submit one of the following to the Department within 5 working

days of its receipt:

1. A written response certifying that the permitted facility is complying with all

terms and conditions of the permit, This certification shall include a sufficient

description of the information on which you are certifying compliance; or

2. If the permitted facility is not operating in compliance with the permit, you will

be required to submit a written proposal to bring the facility into compliance with

the permit and all applicable regulations which shall include at least the following:

a. A detailed plan and time schedule for achieving compliance in the shortest

practicable time;

b. A description of the interim steps that will be taken to reduce the impact

of the permit violation(s) until the permitted facility is in compliance with the

permit; and

c. A statement that you have reviewed all other conditions and limitations

of the permit and no other violations of the permit were discovered.

The purpose of the NPV is to ensure that the permitted facility is operating in

compliance with all conditions and limitations of the permit, or to bring the

permitted facility into compliance. We recommend that you begin preparations now.

to respond to the NPV. If you fail to respond to the NPV in the-5 day time frame, .

you will be assessed a civil penalty for the one or more violation(s) cited in the

NPV."

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Enforcement Guidance (1()"1-94)
RESPONSE "E"

Response "E" is used when a violation of a permit is a Class Two violation. Oregon

Administrative Rules state that a permitted source shall get no more than three NOr:-rs containing

Class II violations in any thirty-six month period without receiving an NPV. You can consider

recommending a Class II violation before three NONs are issued, if the violation needs a formal

compliance schedule to resolve. For example, if a serious Class II permit violation occurs (eg.

very high opacity) that is a result of a lack of control equipment or control equipment not

capable of operating in compliance, then you can consider a referral before issuing three NONs.

However, if the violation is the result of failure to use the control equipment, you can consider

a referral for civil penalty without an NPV first since this would be an intentional violation

which is exempted from the NPV.

Therefore, use the following language in steps to get to the actual referral for an NPV.

FIRST NON

"The above violation is a Class II violation of your permit, Oregon Administrative

Rule 340-12-041 (2)(c) provides that a permittee shall not receive more than three

NONs for Class II violations of the same permit within a thirty-six (36) month period

without being issued a more formal enforcement action called a Notice of Permit

Violation (NPV). The Department may, however, issue a NPV prior to the third

NON. The Department requests your cooperation in ensuring. that this violation

does not recur."

SECOND NON

"This is your second Class II violation of your permit, Oregon Administrative Rule

340-12-041(2)(c) provides that a permittee shall not receive more than three NONs

for Class II violations of the same permit within a thirty-six (36) month period

without being issued a Notice of Permit Violation (NPV). If additional Class II

violations occur, we will be referring these violations to the Department's

Enforcement Section for the issuance of a NPV. The NPV is a fonnal enforcement

action that requires you to submit one of the following, within five working days of

its receipt: (1) a certification of full compliance with-all permit conditions; or (2) a

detailed plan and time schedule demonstrating what steps will be taken to gain

compliance, together with interim measures taken to reduce the impact of the

violations, and a statement that the permittee has reviewed all or the conditions and

limitations or the permit and is compliance with all other provisions."

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Enforcement Guidance 00-1-94)

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REFERRAL NON

"This is your third Notice of Noncompliance for a Class IT violation of your permit

in the previous thirty-six (36) months. Pursuant to Oregon Administrative Rule 340-

12-041(2)(c) your file is being referred to the Department's Enforcement Section for

issuance of a Notice of Permit Violation (NPV). The NPV is a formal enforcement

action which will require that you submit one of the following to the Department

within 5 working days of its receipt:

1. A written response certifying that the permitted facility is complying with all

terms and conditions of the permit. This certification shall include a sufficient

description of the information on which you are certifying compliance; or

2. If the permitted facility is not operating in compliance with the permit, you will

be required to submit a written proposal to bring the facility into compliance with

the permit and all applicable regulations which shall include at least the following:

a. A detailed plan and time schedule for achieving compliance in the shortest

practicable time;

b. A description of the interim steps that will be taken to reduce the impact

of the permit violation(s) until the permitted facility is in compliance with the

permit; and

c. A statement that you have reviewed all other conditions and limitations

of the permit and no other violations of the permit were discovered.

The purpose of the NPV is to ensure that the permitted facility is operating in

compliance with all conditions and limitations of the permit, or to bring the

permitted facility into compliance. We recommend that you begin preparations now

to respond to the NPV. If you fail to respond to the NPV in the 5 day time frame,

you will be assessed a civil penalty for the one or more violation(s) cited in the

NPV."

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Enforcement Guidance (10-1-94)
RESPONSE "F"

Response "F" is used when the violation of the permit is a Class III violation. Oregon

Administrative Rules state that Class III violations that are repeated or continuing shall also

receive a NPV. Therefore, use the following language in the steps indicated to get to the

referral for an NPV:

FIRST, SECOND & THIRD NONs

"The above violation is a Class ill violation. Oregon Administrative Rules provide

for more formal enforcement action, called a Notice of Permit Violation, for

repeated or continuous Class ill violations. The Department requests your

cooperation in ensuring that this violation does not recur. ".

FOURTH NON

"This is your fourth Class ill violation. Oregon Administrative Rule 340-12-

04l(2)(c) provides that a permittee will receive a Notice of Permit Violation (NPV)

for repeated or continuous Class ill violations. If additional Class ill violations

occur, we will be referring these violations to the Department's Enforcement Section

for the issuance of a NPV. The NPV is a formal enforcement action that requires

you to submit one of the following, within five working days of its receipt: (1) a

certification of full compliance with all permit conditions; or (2) a detailed plan and

time schedule demonstrating what steps will be taken to gain compliance, together

with interim measures taken to reduce the impact of the violations, and a statement

that the permittee has reviewed all of the conditions and limitations of the permit

and is compliance with all other provisions."

REFERRAL NON

"This is your fifth Notice of Noncompliance for a Class ill violation of your permit

in the previous thirty-six (36) months. Pursuant to Oregon Administrative Rule 340-

12-041(2)(c) your rile is being referred to the Department's Enforcement Section for

issuance of a Notice of Permit Violation (NPV). The NPV is a formal enforcement

action which will require that you submit one of the following to the Department

within 5 working days of its receipt:

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Enforcement Guidance (10-1-94)

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1. A written response certifying that the permitted facility is complying with all

terms and conditions of the Permit. This certification shall include a sufficient

description of the infonnation on which you are certifying compliance; or

2. If the permitted facility is not operating in compliance with the permit, you will

be required to submit a written proposal to bring the facility into compliance with

the permit and all applicable regulations which shall include at least the followlnge

a. A detailed plan and time schedule for achieving compliance in the shortest

practicable time;

b. Adescription of the interim steps that will be taken to reduce the impact

of the permit violation(s) until the permitted facility is in compliance with the

permit; and

c. A statement that you have reviewed all other conditions and limitations

of the pennit and no other violations of the permit were discovered.

The purpose of the NPV is to ensure that the permitted facility is operating in

compliance with all conditions and limitations of the permit, or to bring the

permitted facility into compliance. We recommend that you begin preparations now

to respond to the NPV. If you fail to respond to the NPV in the 5 day time frame,

you will be assessed a civil penalty for the one or more violations cited in the NPV."

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Enforcement Guidance (10-1-94)

;~.
POST NPV VIOLATIONS

CIVIL PENALTY RESPONSE

After a NPV has been issued refer a violation if it falls into one of the four following categories:

violation(s). They are:

1. It is a Class I violation.

2. It is a major magnitude Class II violation (refer to selected magnitudes contained

in 340-12-090).

3. It has the same cause as the violation(s) for which the NPV was issued, or the

violation has the same cause as a violation addressed in a prior NON leading up

to the NPV (eg. if the violation cited was a high opacity reading and the current

violation is a high opacity reading and both are due to a continuing failure of the

baghouse).

4. It involves documented noncompliance with the approved plan sent in response

to the NPV, if the plan was approved subject to the compliance schedule. (eg. the

plan submitted said that a new drainfield would be installed by November 1st and

on November 15th it is documented that the drainfield had not been installed and

the approval of the compliance plan was made subject to having the drainfield in

by November 1, 1992).

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Enforcement Guidance (10-1-94)

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POST NPV REFERRAL NONS

The exact language to be incorporated into the NON is dependent upon the reason for the

referral. The following are examples of NON language:

For number 1 above:

"This is a Class I violation of your permit and is considered to be a serious violation

of Oregon environmental law. Because you received a Notice of Permit Violation,

Case No. _-_-_'-_, within the last 36 months, we are referring this violation

to the Department's Enforcement Section with a recommendation to proceed with

a formal enforcement action which may result in a civil penalty assessment. Civil

penalties can be assessed for each day of violation."

For numbers 2 & 3 above:

"This is a Class II violation of your permit. Because you received a Notice of Permit

Violation, Case No. _-_-_-_ within the last 36 months, and this violation is

considered to be a significant violation of Oregon environmental law, we are

referring this violation to the Department's Enforcement Section with a

recommendation to proceed with a formal enforcement action which may result in

a civil penalty assessment. Civil penalties can be assessed for each day of violation."

For number 4 above:

"In response to Notice of Permit Violation, Case No. _-_-_-_ you provided

the Department with a plan to come into compliance with the terms of your permit,

This plan was accepted by the Department contingent upon meeting the schedule

contained therein. The compliance date described above has not been met. Because

you failed to meet the compliance schedule in the approved plan, we are referring

this violation to the Department's Enforcement Section with a recommendation to

proceed with a 'formal enforcement action which may result in a civil penalty

assessment. Civil penalties can be assessed for each day of violation. n

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Enforcement Guidance (10-1-94)
POST NPV ESCALATING NONS FOR

FOR CLASS II VIOLATIONS

All other Class II violations (minor and moderate magnitude) should not be referred to the

Enforcement Section, unless there are extenuating circumstances (the significance of the

violation, whether it was intentional or not and the history of the source all need to be taken into

account). These violations should be sent escalating NONs which incorporate the following

language:

FIRST NON

"The above is a Class IT violation. The Department requests that you immediately

. address this violation with a corrective action plan which you should submit to the

Department by in order to insure that the violation does not reoccur.

You should be aware that within the last 36 months the Department has issued a

Notice of Permit Violation (Case No. _-_-_-_). If the Department does not

receive a plan to correct this violation or documents continuing violations of the

permit, the violation(s) will be referred to the Enforcement Section with a

recommendation to proceed with a formal enforcement action which may result in

a civil penalty assessment. Civil penalties can be assessed for each day of violation."

REFERRAL NON

"This is the second Class II violation of your permit since you were issued a Notice

of Permit Violation, Case No, _-_-_-_. Therefore, we are referring this

violation to the Department's Enforcement Section with a recommendation to

proceed with a formal enforcement action which may result in a civil penalty

assessment. Civil penalties can be assessed for each day of violation."

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Enforcement Guidance (10-1-94)

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• POST NPV ESCALATING NONS FOR

CLASS III VIOLATIONS

After the issuance of a NPV, Class III violations should be referred to the Enforcement Section

for the assessment of a civil penalty when the Region determines that the source is a chronic

Class III violator.iThese violations should be sent an escalating response as follows:

FIRST NON

"This is a Class ill violation of your permit, The Department requests that address

this violation so that it does not recur. You should be aware that within the last 36

months the Department has issued a Notice of Permit Violation (Case No. _-_-

_-_). The Department requests your cooperation in ensuring this violation does

not recur. Should the Department document continuing violations of this pennit; the

violation(s) will be referred to the Enforcement Section with a recommendation to

proceed with a formal enforcement action which may result in a civil penalty

assessment. Civil penalties can be assessed for each day of violation."

SECOND NON

"The above is a Class ill violation. The Department requests that you immediately

address this violation with a corrective action plan which you should submit to the

Department by in order to insure that the violation does not reoccur. '

You should be aware that within the last 36 months the Department has issued a

Notice of Permit Violation (Case No. 0 _).If the Department does not

receive a plan to correct this violation or documents continuing violations of this

permit; the violation(s) will be referred to the Enforcement Section with a

recommendation to proceed with a fonnal enforcement action which may result in

a civil penalty assessment. Civil penalties can be assessed for each day of violation."

REFERRAL NON

"This is an ongoing Class ill violation of your permit sin& you were issued a Notice

of Permit Violation, Case No, - - - . Therefore, we are referring this ----- violation to the Department's Enforcement Section with a recommendation to

proceed with a formal enforcement action which may result in a civil penalty

assessment. Civil penalties can be assessed for each day of violation. "

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Enforcement Guidance (10-1-94)