# •

••••



# •• Attachment H DEQ Enforcement Procedure and Civil Penalty Guidance

. ",,',".' • '1:-'

..**~.** .: .- - .

... I· '.:r

..'

.... '.' ...

# • DRAFT

DEPARTMENTOFENVIRONMENTAL QUALITY

ENFORCEMENTGUIDANCE For FieldStaff

- October 

### 1, 1994ENFORCEMENT 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 staffto 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 isrequiredby 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 correctthe violation and (3) inform the violator ofthe possibleenforcement consequences as a result ofthe violation. The following guidance language should be incorporated into NONs. The language describes what additional enforcementaction mayormay not be taken. Alettercodehas been placed next to each ofthe violations classified in Division 12 (see pages 5-26). This letter code represents theenforcementresponse for that violation. Thereare two or three columns containing potential responses. Each ofthese lettercoded enforcementresponses include specific language for staff to incorporate into their NONs to inform the violator ofthe enforcement consequences ofthe violation (see pages 27-41). A summary ofeach ofthe 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 violatorcan be placed on a scheduleto correct the violation. If the schedule is not met, the violation will be referred to the Enforcement Section for a formal enforcementaction which may includea 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 

### .getsup to three Class ill violations before being referred for a civil penalty. • Response D: is for Class I violations ofa 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 ofa permit as repeated or ongoing Class

## mviolations 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 staffshould 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 ofa 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. • Withjust cause, a formal enforcementaction may be accelerated (eg. see Response "E" on page 34).

. • Withjustification, a violation that merits Response "A" may receive no further formal enforcement action beyond the NON (see page 27, "A" response).

Page-3 EnforcementGuidance (10-1-94)

# • • The language given is guidance. In some cases it may not fit the circumstances of a particular NON.



# '. • For multi-mediainspections, list allviolations in each program area in the NON. Most, ifnot all, documented violations will be addressed in the formal enforcementaction with civil penalties.

• If you need to refer a violation for a NPV, refer all the violations (eg. if2 Class I, 1 Class II and 4 Class III violations are documented, the NON should state that you are referring all ofthe violations for a NPV).

This guidance revises the April 15, 1993 ENFORCEMENT GUIDANCE For Field Staffand 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 ofa Commission or Department Order, or variance; Constructing or operating a source without the appropriatepermit; Modifying a source with an Air Permitwithout first notifying and receiving approval from the Department; Violation ofa compliance schedule in a permit; Exceeding an allowableemission level ofa hazardous airpollutant. 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 ofeither 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 ofoperating limitations that limit the potential to emit ofa 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 ofasbestos into the environment; Storage or accumulation offriable asbestos material or asbestoscontaining waste material from an asbestos abatement project which causes a potential for public exposure to asbestos or release ofasbestos into the environment; Visible emissions ofasbestos during an asbestos abatementproject or during collection, processing, packaging, transportation, or disposal ofasbestos-eontaining waste material;

. 

# (0

T-S I SIP OTH PER NO.PER 

### = Violation ofa Title V or SIP required.permit condition

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


### = Violation ofa 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 ofan asbestos abatementproject by a person not licensed as an asbestos abatement contractor; A (s) Violation ofa disposal requirement for asbestos-containing waste material which causes a potential for public exposure to asbestos or release ofasbestos 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 ofOAR 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 anypropaneflaming which results invisibility 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 ofgrass 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 providerlicense 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 ofharm 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 ofa Title V or SIP required permit condition OTH PER 

### = Violation ofa non-Title V or non-SIP required permit condition Page-6 NO PER 

### = Violation ofa requirement not required by an air permit Enforcement Guidance (10-1-94)alb (c) 

### OTH NO PER PER E B (b)

(d)
(e)**/-~** 

# cO



# /0 c.. Violating standards in permits or rules for fugitive emissions, particulate deposition, or odors; Failure to take corrective action or maintain records ofemissions which equal orexceed emission action levels as required by OAR 340-28-620(2); Failure to submit a complete Air Contaminant Discharge Permit application 60 days priorto permitexpiration orpriorto modifying a source; Failure to maintain on site records when required by a permit to be maintained on site; Exceedances ofoperating limitations that limitthe potentialto emit ofa 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 ofan asbestos abatement project; Failure to display permanent labels on a certified woodstove; Alteration ofa permanent label for a certified woodstove; Failureto use Department-approvedvaporcontrolequipment

### 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 ofthe 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 ofor 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 ofa Title V or SIP required permit condition


### = Violation ofa non-Title V or non-51P required permit condition Page-7


### = Violation ofa 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 ofan 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 ofan 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 ofa non-Title V or non-SIP required permit condition Page-8


### = Violation ofa 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 ofa 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 submita compliance schedulerequired by OAR 340-35-

. 035(2); (e) Operating a motor sports vehicle without a properly installed or well-maintained muffler orexceeding 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 ofmotorracing curfews set forth in OAR 340-35-040(6); (i) Any violation related to noise control which causes a major harm orposes a major risk ofharm 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 ofsale; (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 ofa 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 ofa 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 ofa spill or upset condition which results in a non-permitted discharge to public waters; Violation ofa 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 ofharm to public health or the environment; Failure to provide access to premises orrecords 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 ofharm to public health or theenvironment. (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 tocertificationofwastewatersystemoperatorpersonnel; Placing wastes such that the wastes are likely to enter public waters by any means; Failureby any ship carrying oil to keep documentation offinancial 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 A/B(6) D

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 , .-.""'"

..... 

# fO F C (c) Exceeding a waste discharge permit biochemical oxygen demand (BOD), carbonaceous biochemical oxygen demand (CBOD), or total suspended solids (fSS) limitation by aconcentrationof20 per cent or less, or exceeding a mass loading limitation by 10 per cent or less; 

### F C (d) Violation ofa 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 thisrule for a permit with a 65 % removal efficiency requirement); 

### F C (e) Violation ofa pH requirement by less than 0.5 pH;


# (0-

PER 

### = NOP 

### = Violation ofa Permit Condition Violation not involving a permit condition Page-II 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 ofa 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 acurrentsewage 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 ofharm 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 ofany 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 ofauthorization 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 ofSatisfactory Completion; Providing any sewage disposal service in violation ofany statute, rule, license, orpermit, provided that the violation is nototherwise 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 ofa 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 ofcommercial facility, without first obtaining an authorization notice are Class III violations.

PER 

### = NOP 

### = Violation ofa 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 ofa 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 ofa sewage sludge or leachate lagoon; Violation ofthe 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 ofa 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); Failuretoperformthe groundwatermonitoring actionrequirements specified in OAR 340-40-030(5), when a significant increase (for pH, increase or decrease) in the value ofa groundwatermonitoring parameter is detected. Impairmentofthe beneficial uses(s) ofan 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 ofa 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 / ..-.;;..... 

# (.0 D alb (m) Violation of a compliance schedule contained in a solid waste 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 contaminatedby hazardous substances by a landfill 

### inviolationof the facility permitand plans as approved by the Department or the provisions ofOAR 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 ofprincipal recyclable material that has been properly prepared and source separated for recycling; D A A (t) Any violation related to the management, recovery and disposalof . solid waste which causes major harm or poses a major risk of

harm to public health or the environment. (2) Class Two: 

# (0 E alb (a) VIolation of

### a condition or term of a Letter of Authorization; E alb alb (b) Knowingly accepting for disposal or disposing ofa 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 accordancewith the laws and rules ofthe Department; E B (e) Failure of a disposal site to obtain certification for recycling programsin accordancewith the laws and rules ofthe 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 programinaccordancewith the laws and rules ofthe 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 ofworking 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 permitcondition Page-16 Enforcement Guidance (10-1-94)

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

# (b OAR 340-12-066 Violations pertaining to the storage, transportation and management of waste tires ortire-derived products shall be classified asfollows: 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 oftpecompliance 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 ofwaste tires or tire-derived products which causes major harm or poses a major risk ofharm to public health or the environment. (2) Class Two: E (a) Violation of a waste tire storage site or waste tire carrier permit 

# CO other than a specified Class One or Class Three violation; 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 ofvehicles; F C (c) Failure to post required signs; F C (d) Failureto 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 ofa permit condition NOP 

### =Violation not involving a permit condition .Page-17 Enforcment GuidanceA/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 ofa 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 ofa 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 ofa release from an underground storage tank or heating oil tank; Failure to provide access to premises or records when requiredby law, rule, permit or order; Placementofaregulated 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 toinitiateand complete free productremovalin accordance with OAR 340-122-235; Failure to initiate and complete the investigation or cleanup ofa 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 ofan 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 otherviolation related to underground storagetanks orheating oil tanks or cleanup ofpetroleum contaminated soil at heating oil tanks which cause major harm or poses a major risk ofharm to public health or the environment. (2) Class Two: (a) Failure to conduct required underground storage tank monitoring and testing activities; 

# •

•

I.

PER 

### = Violation ofa permit condition NOP 

### = Violation not involving a permit condition Page-IS Enforcment GuidanceA/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 ofpetroleum 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 ofthe 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 ofpetroleum 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 ofpetroleum 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) Failureby the tankownerto providethepermitnumber to persons depositing product into the underground storage tank; . Failure to report a suspected release from an underground storage tank. Any otherviolation related to underground storage tanks or heating oil tanks or cleanup ofpetroleum 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 ofa 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 ofthe 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 ofan 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 GuidanceHAZARDOUS \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 ofa Department or Commission order; Failure to carry out waste analysis for a waste stream or to properly apply "knowledge ofprocess"; 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 ofa 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 ofhazardous 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/treatmentin violationof 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 ofa 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 notinvolving a permit condition o Page-21 Enfon:ment GuidanceA/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; Failureto follow emergencyprocedures containedin response plan when failure could result in serious harm; Storage of hazardous waste in containers which are leaking or present a threat ofrelease; Systematic failure to follow containerlabeling requirements or lack ofknowledge ofcontainer 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 ofany 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 ofinadequate groundwater monitoring wells such that detection ofhazardous waste or hazardous constituents that migrate from the waste management area cannot be immediately be detected; Failure to install any groundwater monitoring wells; Failureto develop and follow a groundwatersampling 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 ofhazardous waste which causes major harm orposes a major risk ofharm 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 ofa 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 ofoil orhazardous materials shall be classified as follows: 0) Class One: (a) Violation ofa 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 ofthe 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 ofa 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 ofa Commission or Department Order; (b) Treating or disposing ofPCBs anywhere otherthan 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 majorrisk ofharm to public health or the environment. (2) Class Two: (a) Violating a condition ofa 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 ofa permit condition NOP 

### =Violation'Dot involving a permit condition Page-24 Enforcment GuidanceUSED OIL l\1ANAGEMENT CLASSIFICATION OF VIOLATIONS OAR 340-12-072 Violations pertaining to the management ofused oil shallbe 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, ifthe quantity ofoil 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 ofused oil which causes major harm or poses a major risk ofharm 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 ofactivities relating to spreading used oil; (b) Any violation related to the management ofused 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 ofused oil as 

### a dust suppressant.

## ·'c--"~· I \

\. l



# co

PER 

### = Violation ofa permit condition NOP. 

### = Violation not involving a permit condition Page-25 Enforcment Guidance(c) A

B B 

### ENVIROm'1ENTAL CLEANUP CLASSIFICATION OF VIOLATIONS OAR 340-12-073 Violations of ORS 465.200through465.420 and relatedrules or orders pertaining to environmental cleanup shall be classified as 

### follow: (1) 

### Class One: (a) Violation ofa 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 ofharm 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 theviolatorthat the violation is being referred to the Enforcement Section with a recommendation for the assessment ofa civil penalty. Therefore the following language should be incorporated into the Notice ofNoncompliance (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 EnforcementSectionwith arecommendationto initiateaformal enforcementaction. A 

### formal enforcement action may include a civil penalty assessmentfor each day of violation." Withjustification, a violation that receives an "A" Response, may be sent an NON with the "B" Response. The inspectorinvolved must write ajustification memo that needs to be routed to and agreed to by theinspector'sManager, RegionalAdministrator, theEnforcementSection Manager and the Enforcement Administrator. 

### RESPONSE 

### "B" Response "B" informs the violator that if a particular set ofsteps 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 ifthis is a one time event, use the alternative language included below) andstate:
. 

### "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 referyour 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 ofthe 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 ifPSD 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 ifthe source is on the Federal Operating Permit call in list. "B" response ifthe 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 thedischargeis 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 ifthe "B" response does not apply. "B" response ifthe 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 ofinstalling 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. Ifthe 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 pursuantto 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 violatoris acting-like a TSD (eg. accepting hazardous waste from generators and treats, stores or disposes ofthe 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 ofrelease. (13) Ifall four ofthecriteriabelow are met, and ifthe 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 ofany combination ofparticulate emissions; b) 5.0 tons/year ofany combination ofall criteria and toxic pollutants; or c) 20% ofthe 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) Theonly significanteconomic gain to the company foroperating without a permit was the avoidance ofpermit 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 ofprevious 

### 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 ofthe 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 ,- EnforcementSection with a recommendation to proceed with a formal enforcement action which may resultin a civilpenalty assessment. Civil penalties canbe 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

• Ifthe violatorcorrects the violation(s) in response to the NON, the case is closed. Ifthe violatordoes notcorrectthe violations, referfor a Compliance Order. Ifthe 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 ofthe Class I violations. Withjustification on acase-by-ease basis, civil penalties may be assessed for multiple violations. Also withjustification, on a case-by-case basis you may request no civil penalty for first time violators. In this case prepare ajustification memo to be signed by your manager, the enforcement section manager and the regional operations manager. Enforcement against HighPriority Violators (HPVs)

• HPVs are defined as violators who: 1. violate the law through flagrant or willful action; or 

### 2. knowingly dispose ofhazardous 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 offull permit compliance or a detailed plan within five days ofreceipt, 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 ofthe above documented Class I violation(s), weare referring yourme 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 ofthe 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. Adetailed plan andtimeschedule forachieving compliance intheshortest practicable time; b. A 

### description ofthe 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 ofthe 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 permittedfacility into compliance. We recommendthatyou beginpreparationsnow. 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."

Page-32 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 apermitted source shall get no more than three NOr:-rs containing Class II violations in any thirty-six month period without receiving an NPV. You

### canconsider recommending a Class II violation beforethree NONs are issued, if the violation needs a formal compliance schedule to resolve. Forexample, ifa 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 ofoperating incompliance, then you can considera referral before issuing three NONs. However, ifthe violation is the result offailure to use the control equipment, you 

### canconsider 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 ofyourpermit, Oregon Administrative Rule 340-12-041 (2)(c) provides that a permittee shall not receive more than three NONs for Class II violations ofthesame permitwithinathirty-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 isyour second Class II violation ofyour permit, Oregon AdministrativeRule 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 thatrequires you to submit one ofthe 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, anda statementthatthe permitteehas reviewedall orthe conditions and limitations or the permit and is 

### compliance with all other provisions."

Page-33 Enforcement Guidance 00-1-94) 

# (0



# Co

# •

I,. •



# • REFERRAL NON "This isyour third Notice ofNoncompliance for a Class IT violation ofyour permit inthepreviousthirty-six (36)months. Pursuantto OregonAdministrativeRule340- 12-041(2)(c)yourfile isbeing referredto the Department's EnforcementSectionfor issuance of a Notice ofPermit 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 ofthe information on which you are certifying compliance; or 2. Ifthe 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 

### detailedplan andtime schedulefor achievingcompliance inthe shortest practicable time; b. 

### Adescription ofthe interim steps that will be takento 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 permittedfacility intocompliance. Werecommendthatyou beginpreparations now to respondto 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."

Page-34 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 referringthese violations to theDepartment's EnforcementSection for the issuance ofa 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 ofthe 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 ofNoncompliance for a Class ill violation ofyour permit in thepreviousthirty-six (36)months. Pursuantto OregonAdministrativeRule340- 12-041(2)(c) yourrile isbeing referred to the Department's EnforcementSectionfor issuance of a Notice ofPermit 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 ofits receipt:

Page-35 Enforcement Guidance (10-1-94) . ....

## ~O



# (0

# I'.

I 

### 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. Adetailedplanandtimescheduleforachieving compliancein the shortest practicable time; b. Adescription ofthe interim steps that will be taken to reducethe 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 permittedfacility into compliance. Werecommendthatyoubeginpreparationsnow 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 ormore violations cited in 

### the NPV."

Page-36 Enforcement Guidance (10-1-94)**;~.**POST NPV VIOLATIONS CIVIL PENALTY RESPONSE After a NPV has been issued refera violation if it falls into one ofthe 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. ifthe violation cited was a high opacity reading and the current violation is a high opacity reading and both are due to a continuing failure ofthe baghouse).



### 4. It involves documented noncompliance with the approved plan sent in response to the NPV, ifthe plan was approved subject to thecompliance schedule. (eg. the plan submitted said that a new drainfield would be installedby November 1st and on November 15th it is documented that the drainfield had not been installed and the approval ofthe compliance plan was made subject to having the drainfield in 

### by November 1, 1992).

Page-37 Enforcement Guidance (10-1-94) 

# (0

# •
,'.



# • 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 ofNON language:

For number 1 above:

"This is a Class I violation ofyour 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, weare 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 ofyour permit. Becauseyou received a Notice ofPermit 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 ofviolation."

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 ofyourpermit, This plan was accepted by the Department contingent upon meeting the schedule containedtherein. The compliance date described above has notbeen 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

Page-38 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, whetherit was intentional or not and the history ofthe 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 ofPermit 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 canbe assessed foreach day ofviolation." REFERRAL NON "This is the second Class II violation ofyour 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."**Page~39** Enforcement Guidance (10-1-94) (' .•.... 

# uO
"". ,.'.

# • 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 ofyour 

### permit, The Department requests that address thisviolation 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. ShouldtheDepartmentdocumentcontinuingviolations ofthis 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 thatyou 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 ofPermit Violation (Case No.

0 _). Ifthe 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 civilpenalty assessment. Civil penalties can be assessed for each day ofviolation." REFERRAL NON "This is an ongoing Class ill violation ofyourpermitsin& you were issueda 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."

Page-40 Enforcement Guidance (10-1-94)