oel .A‘fl' t-%/

Department of Environmental Quality

811 SW Sixth Avenue

Portland, OR 97204-1390

503-229-5696

TTY 503-229-6993

August 28, 2006

Ron Kriezenbeck, Acting Regional Administrator

U.S. Environmental Protection Agency, Region 10

1200 Sixth Avenue

Seattle, WA 98101

Re: Revision to the Oregon State Implementation Plan: Division 12 Enforcement Procedure

and Civil Penalties

Dear Mr. riezenbeck:

The Oregon Department of Environmental Quality (DEQ) requests approval of revisions to

Oregon's State Implementation Plan (SIP) from the Office of Air, Waste, and Toxics, State and

Tribal Air Programs Unit of the U.S. EPA, Region 10. Three copies of the amendments are

submitted for your review. These rules establish the procedures and penalties used in

conjunction with enforcement.

The Environmental Quality Commission adopted the revisions to the SIP under OAR 340-200-

0040 on March 2, 2006. DEQ submits these revisions to EPA as part of the SIP and pursuant

to 40 CFR 51.104.

I certify that public notices were published in newspapers of general circulation on September 2,

2005 and in the Secretary of State's Oregon Bulletin on June 1, 2005 and September 1, 2005. 1

further certify that a public hearing was held on October 4, 2005 in Pendleton, Oregon and on

October 5, 2005 in Portland, Oregon and on October 6, 2005 in Medford, Oregon. The notices

included a statement that adoption of the rules would revise the SIP.

Thank you for your assistance with these revisions to Oregon's SIP. Staff contacts for this

submittal are Jane Hickman, Office of Compliance & Enforcement Administrator, at 503-229-

5555, and Gary Beyer, SIP Coordinator, at 503-229-6457.

Sincerely,

cc w/attachments: Gina Bonifacino, EPA, Region 10 (3 complete sets plus 2 additional

copies of revised rules, attachment 3)

cc who attachments: Gary Beyer, DEQ AQ SIP Coordinator

Andrew Ginsburg, DEQ AQ Administrator

Jane Hickman, DEQ OCE Administrator

Paul Koprowski, EPA Oregon Operations office

Oregon

Theodore R. Ku[ongos[d, Governor

DEQ-1

1
•1
Attachments:

Attachment 1: Evidence that the state has adopted the revision.

1.1 Staff Report, Agenda Item D of the March 2, 2006 EQC Meeting. See

also Certificate and Order for Filing Permanent Administrative Rules in

Attachment 4.2.

Attachment 2: Evidence that the State has the necessary legal authority.

See Attachment 1.1 "Commission Authority" (page 5 of Staff Report, Agenda

Item D).

Attachment 3: Provisions Submitted for Approval.

3.1 State of Oregon Clean Air Act Implementation Plan: OAR 340-200-0040,

Effective March 31, 2006.

3.2 Enforcement Procedures & Civil Penalties: OAR 340-012, Effective

March 31, 2006.

Attachment 4: Evidence that the State followed the Administrative Procedures Act.

4.1 Public notice in the Secretary of State's Oregon Bulletin, June 1, 2005.

4.2 Public notice in the Secretary of State's Oregon Bulletin, September 1,

2005. .

4.3 Certificate and Order for Filing Permanent Administrative Rules, filed

March 29, 2006.

Attachment 5: Evidence of adequate public notice.

5.1 Affidavit of Publication: The Oregonian, Notice of September 2, 2005

publication.

5.2 Affidavit of Publication: Daily Journal of Commerce, Notice of September

2, 2005 publication.

Attachment 6: Certification of public hearing.

See paragraph three of cover letter and Attachment 7.1.

Attachment 7: Compilation of public comments and Department's response.

7.1 Presiding Officer's Report for Rulemaking Hearings dated January 17,

2006.

7.2 Compilation of Public Comment.

7.3 Advisory Group Membership List

2

Attachment 1

Evidence the State has

Adopted the Revision

1.1 Staff Report, Agenda Item D of the March 2, 2006 EQC Meeting.

See also Certificate and Order for Filing Permanent Administrative Rules in

Attachment 4.3.

Attachment 1.1, pg. 1

State of Oregon

Department of Environmental Quality Memorandum

March 2, 2006

Environmental Quality Commission

Stephanie Hallock, Director / t.i

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties, OAR

Chapter 340, Division 12, March 1-3, 2006, EQC Meeting

Department The Department of Environmental Quality (DEQ or department) recommends that

Recommendation the Environmental Quality Commission (EQC or Commission) amend Oregon

Administrative Rules (OAR) Chapter 340, Division 12 by adopting the proposed

rules as presented in Attachment A.

The department is proposing revisions to OAR Chapter 340, Division 12, which

governs the department's enforcement processes. The proposed changes are the

result of a comprehensive review of the department's enforcement program to

ensure that it is equitable, consistent and understandable. The review began in

2001 as a key element of DEQ's Strategic Directions. The changes relate to rules

that dictate how penalties are to be calculated for violations of Oregon's

environmental regulations and statutes. The Commission has the statutory

authority to adopt regulations regarding compliance and enforcement procedures

under ORS 468.020.

Due to the complexity of the issues involved, the department divided the

rulemaking into two phases. Phase 1 of the rulemaking clarified the difference

between formal and informal enforcement actions, created a new categorization of

informal warnings (replacing the Notice of Non-compliance (NON) with the

warning letter and pre-enforcement notice) and modified the penalty matrices and

aggravating factors. The penalty matrices were modified to increase penalties for

some violations and to better ensure that smaller, potentially less knowledgeable

violators would receive lower penalties than larger, potentially more

knowledgeable violators. The Phase T rules were adopted by the Commission on

December 9, 2004, and became effective on June 1, 2005.

This Phase II of the rulemaking addresses the "classification" and "magnitude" of

violations. The proposed rules revise the classification and magnitude of some

violations to better reflect the department's environmental priorities and to create

greater consistency among programs. The department received previous

comments from the public and from external stakeholders that the existing rules

do not clearly distinguish between classification and magnitude, that the rules are

unclear about how "potential" harm is considered, and that the rules sometimes

"double count" facts in determining both class and magnitude. The department

o0001

Date:

To:

From:

Subject:

Background and

Need for

Rulemaking
Attachment 1.1, pg. 2

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties

March 1-3, 2006, EQC Meeting

Page 2 of 10

agreed with these comments based on its own experience implementing the

existing rules. The proposed rules clarify the difference between these concepts

by classifying violations based on how important the requirement is to achieving

the intended environmental and public health protections and how probable it is

that a violation will result in significant harm to the environment or pose

significant threat to public health.

According to Oregon Administrative Rules Chapter 340, Division 12, penalties

are established by first determining a "base penalty" and then considering

aggravating and mitigating factors which increase or decrease the penalty. The

base penalty is determined primarily by the "classification" and "magnitude" of

the violation.

Classification of violations

The "classification" of the violation considers the potential impact to human

health or the environment and the significance to the regulatory structure of the

given environmental program. Classifications range from Class I (most

important) to Class III (least important). See OAR 340-012-0053 to -0097.

During the rulemaking process, the department further defined its criteria for

Class I, II and III violations.

Class I violations are those violations that:

• Have high probability for significant, direct environmental harm;

• Involve reporting requirements that mask another violation and the

information cannot be reconstructed; or

• Are necessary to maintain federal delegation

Class 11 violations that are specifically listed in the proposed rules are frequently

cited by inspectors or are identified to distinguish between Class I and Class III

violations. Rarely or never cited violations fall within the Class II "any otherwise

unclassified violation" (OAR 340-012-0053(2)(a)).

Class III violations are those violations that:

• Have the least likelihood of harm to human health and the environment;

and

Have the least significance to the regulatory program.

In this rulemaking, the department re-evaluated each of the program violations in

light of these revised classification criteria. Previously, some violations were

listed as Class I violations based on whether the department intended to initiate

00002

Content of

Current

Rulernaking
Attachment 1.1, pg. 3

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil , Penalties

March 1-3, 2006, EQC Meeting

Page 3 of 10

formal enforcement on the first incidence of the violation rather than whether the

violation met the criteria above. In addition, the department looked across the

programs to make consistent the classification of violations found in more than

one program. For example, the department is proposing that the violation for

failing to conduct required monitoring would generally be a Class I violation in

each program, because it could mask a violation of permit limits, but that the

violation for failing to submit a report on time would be Class II. In the latter

case, the department would allow the violator an opportunity to submit the report

before proceeding with enforcement.

Magnitude of violations

The "magnitude" of the violation considers the actual impact to human health and

the environment resulting from a particular violation. The magnitudes are

designated as minor, moderate or major. They may be based on a variety of

factors, such as the degree of deviation from the law; the effects of the violation;

the concentration, volume, or toxicity of the materials involved; or the duration of

the violation. For some violations, there are "selected" magnitudes in rule that

determine which factors are the bases for the magnitude determination. If the

facts warrant consideration of factors beyond those articulated in the selected

magnitude, if the department does not have sufficient information to determine a

selected magnitude, or if no selected magnitude exists for a violation, then

"general" magnitudes apply. If the general magnitudes apply, the magnitude

defaults to "moderate" unless information is reasonably available to allow the

department to make a finding of "major" or "minor" magnitude based on any one

or more of the factors listed above. See OAR 340-012-0130 to -0135.

In this rulemaking, each department program reconsidered whether their existing

selected magnitudes best distinguished the differences among environmental or

public health effects from the occurrence of a specific violation. Modifications

shown in these proposed rules indicate changes the programs considered

necessary to better differentiate among the range of violation scenarios from those

resulting in "major" harm to public health or the environment, to those resulting

in "minor" harm.

The proposal also eliminates magnitude-type language in the classifications where

possible so the penalty does not "double count" the same facts in determining

more than one penalty factor. In addition, where magnitude language is included

for the purpose of distinguishing between classifications, that same element is not

included elsewhere in the penalty-calculation process (i.e., in the selected

magnitude or in the matrix). For example, violations of water quality permit

effluent limitations are classified based on the amount by which the discharge

exceeded the permit limits. However, magnitude for these violations is

03003
Attachment 1.1, pg. 4

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties

March 1-3, 2006, EQC Meeting

Page 4 of 10

determined by evaluating the impact of that quantity of discharge based on the

actual river conditions at the time of the violation.

Penalty calculation

Once the classification and magnitude are determined, the base penalty can be

found in civil penalty "matrices" listed in the rules. Different kinds of violators

and violations are assigned to different matrices. Larger, potentially more

knowledgeable violators tend to be assigned to a higher penalty matrix than

smaller or potentially less knowledgeable violators. See OAR 340-012-0140.

The base penalty is adjusted up or down according to the following (see OAR

340-012-0145):

• The person's history of noncompliance;

• The person's history of cooperation in correcting violations cited in past

enforcement actions;

• Whether the violation occurred once or was repeated or continuous;

• Whether the person had constructive knowledge or acted negligently,

whether the person acted recklessly or had actual knowledge that the

conduct would be a violation, or whether the person acted flagrantly;

• Whether the person made an effort to correct the violation or minimize its

effects; and

• The economic benefit in monetary terms that the violator gained by not

complying with the law.

Penalties calculated according to the formula above range from about $100 to

$10,000 per violation per day of violation. The rules provide for alternative

penalties in certain cases. See OAR 340-012-0155.

The proposed Phase II rules-also-delete-some-of the references to quantity of

material burned that are currently in the penalty matrix for open burning

violations (OAR 340-012-0140) since quantity is the basis for the open burning

selected magnitudes (OAR 340-012-0135(1)(g)). This eliminates the duplicative

consideration of quantity at two separate points in the penalty calculation process.

Finally, the rulemaking proposes to move suction dredgers operating under water

quality general permits from the $6,000 matrix to the $1,000 matrix, a matrix that

is more consistent with violators of a similar size and sophistication.

Effect of Rule Proposed changes in classifications and magnitudes may cause penalty amounts

for a given violation to increase or decrease.

These amendments, if adopted, will be submitted to the U.S. Environmental

-Q0004
Attachment 1.1, pg. 5

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties

March 1-3, 2006, EQC Meeting

Page 5 of 10

Protection Agency (EPA) as a revision to the State Implementation Plan (OAR

340-200-0040), which is a requirement of the Clean Air Act (see Attachment A2).

Commission The Commission has authority to take this action under ORS 468.130(1) and ORS

Authority 468.020(1), as well as under ORS 459.376(1); ORS 459.995; 465.900; ORS

466.210; ORS 466.990; ORS 466.992; ORS 466.994; ORS 468.020(1); ORS

468.035(1)(j); ORS 468.045(1)(c); ORS 783.992.

Stakeholder The department established an external Advisory Group in March 2005. The

Involvement Advisory Group was comprised of twelve regular members and two auxiliary

members. (Attachment C provides the Advisory Group Membership List.) The

regular members represented large and small businesses, small cities, public water

management agencies, the Associated Oregon Industries and environmental

groups. The auxiliary members represented Lane Regional Air Pollution Agency

and the EPA. The Advisory Group met five times, from March 2005 to July

2005. The Advisory Group's role was to review proposed amendments and

provide advice on how the enforcement process and civil penalties can be

equitable while achieving compliance and deterrence.

An internal DEQ rulemaking team drafted proposed amendments to the rules and

provided them to the Advisory Group for review. The Advisory Group provided

comments at meetings with the department. Based on these external and internal

discussions, a final rule package was proposed for public review in the fall of

2005.

Public Comment A public comment period on the proposed Phase II rule package was held from

September 1, 2005 to October 17, 2005, and included public hearings in

Pendleton, Portland, and Medford. The department held informational briefings

in conjunction with all three of the public hearings. Two people attended the

public hearing/informational briefing in Medford. One of the attendees testified

at the hearing. (Attachment D provides the Presiding Officer's Report.) In total,

eleven stakeholders submitted written comments during the public comment

period. The department responded to these comments by either incorporating

suggested changes or explaining why they were not incorporated. (Attachment B

provides the Summary of Public Comments and Responses.)

Key Issues The key issues raised from the public comments:

1) Should violation of a compliance schedule in a permit be a Class ,l violation?

00005
Attachment 1.1, pg. 6

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties

March 1-3, 2006, EQC Meeting

Page 6 of 10

• Background: The department proposes to amend OAR 340-012-053(1)(a)

to make violation of a compliance schedule a Class I violation in all

program areas. Commentors suggest that violation of a compliance

schedule in a permit should only be Class I when the violation causes

environmental damage.

• Classification Recommendation: The department recommends that a

violation of a compliance schedule or order always be classified as Class I

without consideration of whether there was actual harm in the individual

case. First, most compliance schedules are individually drafted,

developed, negotiated, evaluated, publicly reviewed, and incorporated into

permits to solve individual facility compliance issues. Therefore,

compliance schedules in permits are similar to compliance schedules in

orders, the violation of which would also be a Class I. Second, an

important goal of the rulemaking was to eliminate, where possible,

"double counting" of the same facts in determining the classification and

magnitude of the violation. The suggestion would allow consideration of

the same general "environmental impact" information for determining

both the class and the magnitude. For these reasons, the department

recommends making all violations of compliance schedules in permits

Class I.

2) Should the department create new classifications and magnitudes for water

quality effluent limitation violations?

. Background: Previously the penalty rules classified all effluent limitation

violations as Class II. Because all effluent violations were classified

identically, the classifications did not distinguish between violations that

have high, moderate or low potential for environmental harm. In addition,

the applicable magnitude rules were generally based only on effluent

concentration and did not result in realistic distinctions between violations

that had significant actual impact on water quality and those that did not.

Other factors, for example the size of the receiving stream, which also

affect whether there will be an impact on water quality, were not

considered in determining magnitude. In order to better tie the

classification to the potential environmental risk and in order to tie the

magnitude to the resulting actual harm, the Department proposed .

amendments to the effluent limitation classification and magnitude rules

as follows:

• Recommendation on Classification -- The Department recommends

00006
Attachment 1.1, pg. 7

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties

March 1-3, 2006, EQC Meeting

Page 7 of 10

adopting the proposed classifications for effluent limit violations, which

are based on the degree to which the effluent deviates from the permitted

effluent limit. The Department notes that using case-specific information,

like the degree of deviation, to determine the class of a violation is a

departure from the general Phase II strategy of placing consideration of all

case-specific facts in the magnitude rules. However, using case-specific

information in these determinations is consistent with the general Phase II

strategy to create classifications based on potential for environmental

harm because the greater the deviation, the more likely the harm.

• Recommendation on Magnitude - The Department recommends adopting

the proposed magnitude rules for effluent limitation violations. The rules

add a measure of dilution caused by the volume of the discharge and the

flow of the river at the time of the violation. Current rules led to

unrealistic magnitude determinations, because they did not consider

discharge volume and river flow, and even a highly concentrated effluent

may have minimal impact on in-stream water quality if the discharge is

small or is diluted by entering a large water body. By including these

factors, the proposed magnitudes better distinguish between violations that

significantly harm water quality and those that do not.

• By adopting this combination of classifications and magnitudes, the

penalty formula for violations of water quality permit effluent limitations

considers the size of the deviation from the permit limit as generally

measured by pollutant concentration, the volume of the discharge, and the

dilution of the river. These factors together will account for the principle

factors affecting the importance of the violation and its impact on instream water quality and will, therefore, result in equity in penalty size.

3) Should the department delete the Class I and III "default" violations in OAR

340-012-0053 and retain the Class II "default" violation for those violations that

are rarely or never cited and not specifically classified in the program sections of

the rule?

▪ Background.' These "default" classifications apply to violations that are

not specifically listed elsewhere in Division 12 rules. Class I applies to

violations that have a "significant adverse impact or pose a significant

threat to human health or the environment." Class III applies to violations

that have a "de minimis adverse impact ... or pose no more than a de

minimis threat to human health or the environment." Class II applies to

violations that are rarely or never cited by the department and do not meet

00007
Attachment 1.1, pg. 8

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties

March 1-3, 2006, EQC Meeting

Page 8 of 10

the criteria for a Class I or Class III violation. The department is

proposing to delete the Class I and Class III "default" classifications

because they are based solely on fact-based magnitude-type language.

The proposed reflect the department's efforts to eliminate this kind of

language from the classifications to reduce double counting of the

potential harm of the violation in the classifications and magnitudes.

+ Class I Recommendation: Commentors suggest that the department

should retain the Class I violation to ensure its ability to take enforcement

against violations that have an adverse impact on the environment. The

department disagrees for two reasons. First, most of the violations that

would have fallen under this "default" classification now would fall under

the existing and proposed Class I violations in the program sections of the

Division 12 rules (e.g., exceeding a hazardous air pollutant emission

limitation, reducing the water quality of waters of the state below water

quality standards, or illegal treatment or disposal of hazardous waste).

Second, there is minimal risk that a significant violation might occur that

would not be Class I under the proposed rules because it was rare or not

considered. In addition, the proposed rules would not hinder the

department from taking appropriate action because the department may

take action on any class of violation and because the director has authority

and discretion to issue a penalty up to the amount of the statutory

maximum.

+ Class II Recommendation: Commentors argue that "rarely or never cited

violations should be classified as Class III violations. The department

disagrees. During the rulemaking process, the department evaluated

whether "rarely cited" violations met the Class III criteria. Violations

meeting thecriteria are proposed asClass III violations. Rarely cited

violations not meeting the Class III criteria become Class II through the

"default" classification. This approach creates predictability and

consistency in the penalty amount because more common violations are

specifically listed according to the evaluation of the likelihood of

environmental impact, and less common violations fall into one

classification. If the department identifies a rarely cited violation which it

believes has resulted in little or no harm to the environment it would

likely decide not to initiate formal enforcement, or if enforcement was

necessary, it may allege that the violation has only a minor magnitude

effect on the environment or public health,

Class III Recommendation: Commentors object to the department's

00008
Attachment 1.1, pg. 9

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties

March 1-3, 2006, EQC Meeting

Page 9 of 10

proposal to eliminate the Class III "default" violation. The department

proposes to delete the Class III "default" violation for several reasons.

First, it contains fact-based magnitude-type language which the

department worked to eliminate in these proposed rules. Second, this

classification is unnecessary because the department evaluated violations

that were commonly cited and those meeting the Class III criteria were

specifically listed as Class III violations in the Division 12 rules. Third,

the suggested Class HI default classification effectively adds magnitude

language into all unlisted violations, including those listed as Class II

because it would allow violators with a default Class II to argue that their

violation should be reclassified as Class III unless the department could

show that their particular violation had more than de minimis effect.

Evidence of damages is often not available for many of these moderatelyimportant violations.

Next Steps The proposed effective date for the proposed rule changes is upon filing after

adoption.

Implementation of these rules will be informed by a department's internal

management directive (Enforcement Guidance Manual) clarifying department

policies pertaining to referring violations for formal enforcement. We estimate

that one full time staff (1 FTE) will be invested in developing and conducting the

training. A sample of the draft guidance governing program-specific enforcement

referrals is provided in Attachment H for informational purposes (no action by the

EQC is requested on this item).

If the rules are adopted, the department will provide updated rule information to

those who submitted comments. We will also issue a press release and draft an

article for distribution to interested publications announcing and describing the

rule adoption.

Attachments A. Proposed Rule Revisions

1. Proposed Division 12 Rule Revisions (redlined version)

2. Proposed Division 200 Rule Revision

B. Summary of Public Comments and Agency Responses

C. Advisory Group Membership List

D. Presiding Officer's Report on Public Hearings

E. Relationship to Federal Requirements Questions

F. Statement of Need and Fiscal and Economic Impact

G. Land Use Evaluation Statement

H, Sample Program Draft Enforcement Guidance for Field Staff

.90009
Attachment 1.1, pg. 10

Agenda Item D, Rule Adoption: Enforcement Procedure and Civil Penalties

March 1-3, 2006, EQC Meeting

Page 10 of 10

Available Upon 1. Legal Notice of Hearing

Request 2. Cover Memorandum from Public Notice

3. Written Comments Received

Approved:

Section:

Division:

Report Prepared By:

Anne R. Price

Phone: 503-229-6585

00010
Attachment 2

Evidence that the State

has the Necessary Legal Authority

See Attachment l .1. "Commission Authority" (page 5 of Staff

Report, Agenda Item D).

Attachment 3

Provisions Submitted for Approval

3.1 State of Oregon Clean Air Act Implementation Plan:

OAR 340-200-0040. Effective March 31, 2006.

3.2 Enforcement Procedures & Civil Penalties: OAR 340-

012. Effective March 31, 2006.

Attachment 3.1, pg. 1

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 200 - Department of Environmental Quality

GENERAL AIR POLLUTION

PROCEDURES AND DEFINITIONS

340-200-0040

State of Oregon Clean Air Act Implementation Plan

(I) This implementation plan, consisting of Volumes 2 and 3 of the State of Oregon Air Quality Control

Program, contains control strategies, rules and standards prepared by the Department of

Environmental Quality and is adopted as the state implementation plan (SIP) of the State of Oregon

pursuant to the federal Clean Air Act, 42 U.S.C.A 7401 to 7671q.

(2) Except as provided in section (3), revisions to the SIP will be made pursuant to the Commission's

rulemalcing procedures in division 11 of this chapter and any other requirements contained in the SIP

and will be submitted to the United States Environmental Protection Agency for approval. The State

Implementation Plan was last modified by the Commission on March 3, 2006.

(3) Notwithstanding any other requirement contained in the SIP, the Department may:

(a) Submit to the Environmental Protection Agency any permit condition implementing a rule that is

part of the federally-approved SIP as a source-specific SIP revision after the Department has

complied with the public hearings provisions of 40 CFR 51.102 (July 1, 2002); and

(b) Approve the standards submitted by a regional authority if the regional authority adopts verbatim

any standard that the Commission has adopted, and submit the standards to EPA for approval as

a SIP revision.

[NOTE: Revisions to the State of Oregon Clean Air Act Implementation Plan become federally

enforceable upon approval by the United States Environmental Protection Agency. If any provision of

the federally approved Implementation Plan conflicts with any provision adopted by the Commission,

the Department shall enforce the more stringent provision.]

Stat. Auth.: ORS 468.020

Stats. Implemented: ORS 468A.035

Rules of this Division as last Filed by the SOS 03/29/2006

Attachment 3.2, pg. t

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

ENFORCEMENT PROCEDURE AND CIVIL PENALTIES

340-012-0027

Rule Effective Date

These rules will become effective on March 31, 2006.

Stat. Auth.: ORS 468.020

Stats. Implemented: ORS 183.355, ORS 454, ORS 459, ORS 465, ORS 466, ORS 468, ORS 468A, &

ORS 468B.

340-012-0053

Violations that Apply to all Programs

(1) Class I:

(a) Violating a requirement or condition of a commission or department order, consent order,

agreement, consent judgment (formerly called judicial consent decree) or compliance schedule

contained in a permit;

(b) Submitting false, inaccurate or incomplete information to the department where the submittal

masked a violation, caused environmental harm, or caused the department to misinterpret any

substantive fact;

(c) Failing to provide access to premises or records as required by statute, permit, order, consent

order, agreement or consent judgment (formerly called judicial consent decree); or

(d) Using fraud or deceit to obtain department approval, permit or license.

(2) Class II:

(a) Violating any otherwise unclassified requirement.

Stat. Auth.: ORS 468.020 & ORS 468.130

Stats. Implemented: ORS 459.376, ORS 459.995, ORS 465.900, ORS 465.992, ORS 466.990 - ORS

466.994, ORS 468.090 --- ORS 468.140 & ORS 468B.450

340-012-0054

Air Quality Classification of Violations

(1) Class I:

(a) Constructing a new source or modifying an existing source without first obtaining a required

New Source Review/Prevention of Significant Deterioration (NSR/PSD) permit;

(b) Operating a major source, as defined in OAR 340-200-0020, without first obtaining the required

permit;

(c) Exceeding a Plant Site Emission Limit (PSEL);

(d) Failing to install control equipment or meet performance standards as required by New Source

Performance Standards under OAR 340 division 238 or National Emission Standards for

Hazardous Air Pollutant Standards under OAR 340 division 244;

(e) Exceeding a hazardous air pollutant emission limitation;

(f) Failing to comply with an Emergency Action Plan;

(g) Exceeding an opacity or emission limit (including a grain loading standard) or violating an

operational or process standard, that was established pursuant to New Source Review/Prevention

of Significant Deterioration (NSR/PSD), or the Western Backstop S02 Trading Program;

(h) Exceeding an emission limit or violating an operational or process standard that was established

to limit emissions to avoid classification as a major source, as defined in OAR 340-200-0020;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 2

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(i) Exceeding an emission limit, including a grain loading standard, by a major source, as defined in.

OAR 340-200-0020, when the violation was detected during a reference method stack test;

(j) Failing to perform testing or monitoring, required by a permit, rule or order, that results in failure

to show compliance with a Plant Site Emission Limit (PSEL) or with an emission limitation or a

performance standard set pursuant to New Source Review/Prevention of Significant

Deterioration (NSR./PSD), National Emission Standards for Hazardous Air Pollutants

(NESHAP), New Source Performance Standards (NSPS), Reasonable Achievable Control

Technology (RACT), Best Achievable Control Technology (BACT), Maximum Achievable

Control Technology (MACT), Typically Achievable Control Technology (TACT), Lowest

Achievable Emissions Rates (LAER) or adopted pursuant to section 111(d) of the Federal Clean

Air Act;

(k) Causing emissions that are a hazard to public safety;

(I) Violating a work practice requirement for asbestos abatement projects;

(m) Storing or accumulating friable asbestos material or asbestos-containing waste material;

(n) Conducting an asbestos abatement project, by a person not licensed as an asbestos abatement

contractor;

(o) Violating an OAR 340 division 248 disposal requirement for asbestos-containing waste material;

(p) Failing to hire a licensed contractor to conduct an asbestos. abatement project;

(q) Openly burning materials which are prohibited from being open burned anywhere in the state by

OAR 340-264-0060(3); or

(r) Failing to install certified vapor recovery equipment.

(2) Class II:

(a) Constructing or operating a source required to have an Air Contaminant Discharge Permit

(ACDP) without first obtaining such permit, unless otherwise classified;

(b) Violating the terms or conditions of a permit or license, unless otherwise classified;

(c) Modifying a source in such a way as to require a permit modification from the department

without first obtaining such approval from the department, unless otherwise classified;

(d) Exceeding an opacity limit, unless otherwise classified;

(e) Exceeding a Volatile Organic Compound (VOC) emission standard, operational requirement,

control requirement or VOC content limitation established by OAR 340 division 232;

(f) Failing to timely submit an ACDP annual report;

(g) Failing to timely submit a certification, report, or plan as required by rule or permit, unless

otherwise classified;

(h) Failing to timely submit a permit application or permit renewal application;

(i) Failing to comply with the open burning requirements for commercial, construction, demolition,

or industrial wastes in violation of OAR 340-264-0080 through -0180;

(j) Failing to comply with open burning requirements in violation of any provision of OAR 340

division 264, unless otherwise classified;

(k) Failing to replace, repair, or modify any worn or ineffective component or design element to

ensure the vapor tight integrity and efficiency of a stage I or stage II vapor collection system;

(1) Failing to provide notification of an asbestos abatement project;

(m) Failing to perform a final air clearance test or submit an asbestos abatement project air clearance

report for an asbestos abatement project; or

(n) Violating on road motor vehicle refinishing rules contained in OAR 340-242-0620.

(3) Class III:

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 3

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(a) Failing to perform testing or monitoring required by a permit, rule or order where missing data

can be reconstructed to show compliance with standards, emission limitations or underlying

requirements;

(b) Constructing or operating a source required to have a Basic Air Contaminant Discharge Permit

without first obtaining the permit;

(c) Modifying a source in such a way as to require construction approval from the department

without first obtaining such approval from the department, unless otherwise classified;

(d) Failing to provide proper notification of an asbestos abatement project or failing to revise a

notification when necessary, unless otherwise classified;

(e) Submitting a late air clearance report that demonstrates compliance with the standards for an

asbestos abatement project; or

(f) Failing to display a temporary label on a certified woodstove.

[Publications: The publication(s) referenced in this rule is available from the agency.]

Stat. Auth.: ORS 468.020, ORS 468A.025 & ORS 468A.045

Stats. Implemented: ORS 468.020 & ORS 468A.025

340-012-0055

Water Quality Classification of Violations

(1) Class I:

(a) Causing pollution of waters of the state;

(b) Reducing the water quality of waters of the state below water quality standards;

(c) Discharging any 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;

(d) Operating a discharge source or conducting a disposal activity without first obtaining an

individual permit or applying for coverage under a general permit for that discharge or disposal

activity;

(e) Failing 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;

(f) Failing to take appropriate action, as required by the municipal wastewater treatment works

owner's department-approved pretreatment-compliance oversight program, against an industrial

discharger to the municipal treatment works who violates any pretreatment standard or

requirement, if the violation impairs or damages the treatment works, or causes major harm or

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

(g) Making unauthorized changes, modifications, or alterations to a facility operating under a Water

Pollution Control Facility (WPCF) or National Pollutant Discharge Elimination System

(NPDES) permit;

(h) Allowing operation or supervision of a wastewater treatment and collection system without

proper certification, by the permittee and/or owner;

(i) Applying biosolids or domestic septage to a parcel of land that does not have department approval

for land application;

(j) Applying biosolids that do not meet the pollutant, pathogen or one of the vector attraction

reduction requirements of 40 CFR 503.33(b)(1) through (10);

(k) Violating a technology based effluent limitation, except for removal efficiency, in an NPDES or

WPCF permit if:

(A) the discharge level (except for pH and bacteria) exceeds the limitation by 50 percent or

more,

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 4

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(B) the discharge is outside the permitted pH range by more than 2 pH units,

(C) the discharge exceeds a bacteria limit as a result of an inoperative disinfection system where

there is no disinfection, or

(D) the discharge of reclaimed water exceeds a bacteria limit by more than five times the limit;

(1) Violating a water quality based effluent limitation in an NPDES permit;

(m) Violating a WPCF permit limitation in a designated groundwater management area if the

exceedance is of a parameter for which the groundwater management area was established;

(n) Failing to report an effluent limitation exceedance;

(o) Failing to collect monitoring data required in Schedule B of the permit;

(p) Contracting for operation or operating a prohibited Underground Injection Control (UIC) system

other than a cesspool that only disposes of human waste;

(q) Operating an Underground Injection Control (UIC) system that causes a data verifiable violation

of federal drinking water standards in an aquifer used as an underground source of drinking

water; or

(r) Failing to implement an erosion and sediment control plan in accordance with an NPDES permit.

(2) Class II:

(a) Violating a technology based effluent limitation, except for removal efficiency, in an NPDES or

WPCF permit if:

(A) the discharge level (except for pH and bacteria) exceeds the limitation by 20 percent or

more, but less than 50 percent, for biochemical oxygen demand (BOD), carbonaceous

chemical oxygen demand (CBOD), and total suspended solids (TTS), or by 10 percent or

more, but less than 50 percent, for all other limitations,

(B) the discharge is outside the permitted pH range by more than 1 pH unit but less than or equal

to 2 pH units,

(C) the discharge exceeds a bacteria limit by a factor of five or more, unless otherwise classified,

or

(D) the discharge of reclaimed water exceeds a bacteria limit by an amount equal to or less than

five times the limit;

(b) Failing to timely submit a report or plan as required by rule, permit, or license, unless otherwise

classified;

(c) Causing any wastes to be placed in a location where such wastes are likely to be carried into

waters of the state by any means;

(d) Violating any management, monitoring, or operational plan established pursuant to a waste

discharge permit, unless otherwise classified; or

(e) Failing to timely submit or implement a Total Maximum Daily Load (TMDL) Implementation

Plan, by a Designated Management Agency (DMA), as required by department order.

(3) Class III:

(a) Failing to submit a complete discharge monitoring report;

(b) Violating a technology based effluent limitation, except for removal efficiency, in an NPDES or

WPCF permit if:

(A) the discharge (except for pH and bacteria) exceeds the limitation by less than 20 percent for

biochemical oxygen demand (BOD), carbonaceous chemical oxygen demand (CBOD), and

total suspended solids (TSS), or by less than 10 percent for all other limitations,

(B) the discharge is outside the permitted pH range by 1 pH unit or less, or

(C) the discharge (except for reclaimed water) exceeds a bacteria limit by less than five times the

limit;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3,2, pg. 5

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(c) Failing to achieve a removal efficiency established in an NPDES or WPCF permit;

(d) Failing to register an Underground Injection Control (UIC) system, except for a UIC system

prohibited by rule; or

(e) Failing to follow the owner's department-approved pretreatment program procedures, where such

failure did not result in any harm to the treatment works and was not a threat to the public health

or the environment.

Stat. Auth.: ORS 468.020 & ORS468B,015

Slats. Implemented: ORS 468.090 - ORS 468.140, ORS 468B.025, ORS 468B.220 & ORS 468B,305

340-012-0060

Onsite Sewage Disposal Classification of Violations

(1) Class I:

(a) Performing sewage disposal services without a current license;

(b) Installing or causing to be installed an onsite wastewater treatment system or any part thereof, or

repairing or causing to be repaired any part thereof, without first obtaining a permit;

(c) Disposing of septic tank, holding tank, chemical toilet, privy or other treatment facility contents

in a manner or location not authorized by the department; or

(d) Owning, operating or using an onsite wastewater treatment system that is discharging sewage or

effluent to the ground surface or into waters of the state.

(2) Class II:

(a) Failing to meet the requirements for satisfactory completion within 30 days after written

notification or posting of a Correction Notice at the site;

(b) Operating or using a nonwater-carried waste disposal facility without first obtaining a letter of

authorization or permit;

(c) Operating or using an onsite wastewater treatment system or part thereof without first obtaining a

Certificate of Satisfactory Completion;

(d) Advertising or representing oneself as being in the business of performing sewage disposal

services without a current license;

(e) Placing into service, reconnecting to or changing the use of an onsite wastewater treatment

system in a manner that increases the projected daily sewage flow into the system without first

obtaining an authorization notice, construction permit, alteration permit, or repair permit;

(f) Failing to connect all plumbing fixtures to, or failing to discharge wastewater or sewage into, a

department-approved system, unless failure results in sewage discharging to the ground surface

or to waters of the state;

(g) Allowing, by a licensed sewage disposal business, an uncertified installer to supervise or be

responsible for the construction or installation of a system or part thereof;

(h) Failing to submit an annual maintenance report, by a service provider of alternative treatment

technologies; or

(i) Failing to report that a required operation and maintenance contract has been terminated, by a

service provider of alternative treatment technologies.

(3) Class III:

(a) Failing to obtain an operation and maintenance contract from a certified service provider, by an

owner of an alternative treatment technology, recirculating gravel filter or commercial sand

filter; or

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 6

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(b) Placing an existing onsite wastewater treatment system into service or changing the dwelling or

type of commercial facility, without first obtaining an authorization notice, where the design

flow of the system is not exceeded.

Stat. Auth.: ORS 454.050, ORS 454.625 & ORS 468.020

Stats. Implemented: ORS 454.635, ORS 454.645 & ORS 468.090 - ORS 468.140

340-012-0065

Solid Waste Management Classification of Violations

(1) Class I:

(a) Establishing or operating a disposal site without first obtaining a registration or permit;

(b) 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;

(c) Disposing of or authorizing the disposal of a solid waste at a location not permitted by the

department to receive that solid waste;

(d) Violating a. lagoon freeboard limit that results in the overflow of a sewage sludge or leachate

lagoon;

(e) Accepting for treatment, storage, or disposal at a solid waste disposal site, without approval from

the department, waste defined as hazardous waste, waste from another state which is hazardous

under the laws of that state, or wastes prohibited from disposal by statute, rule, permit, or order;

(f) Failing to properly construct, maintain, or operate in good functional condition, groundwater,

surface water, gas or leachate collection, containment, treatment, disposal or monitoring facilities

in accordance with the facility permit, department approved plans, or department rules;

(g) Failing to collect, analyze or report groundwater, surface water or leachate quality data in

accordance with the facility permit, the facility environmental monitoring plan, or department

rules;

(h) Mixing for disposal or disposing of recyclable material that has been properly prepared and

source separated for recycling;

(i) Failing to establish or maintain financial assurance as required by statute, rule, permit or order; or

(j) Failing to comply with the terms of a permit terminated due to a failure to submit a timely

application for renewal.

(2) Class II:

(a) Failing to accurately report the amount of solid waste disposed, by a permitted disposal site or a

metropolitan service district;

(b) Failing to timely or accurately report the weight and type of material recovered or processed

from the solid waste stream;

(c) Failing to comply with landfill cover requirements, including but not limited to daily,

intermediate, and final covers, or limitation of working face size;

(d) Operating a Household Hazardous Waste (HHW) collection event or temporary site without first

obtaining department approval or without complying with an approved plan for a HHW

collection event; or

(e) Receiving or managing waste in violation of or without a department approved Special Waste

Management Plan.

(3) Class III:

(a) Failing to post required signs;

(b) Failing to control litter;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 7

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(c) Failing to notify the department of any name or address change; or

(d) Violating any labeling requirement under ORS 459A.675 -.685.

Stat. Auth.: ORS. 459.045 & ORS 468.020

Stats. Implemented: ORS 459.205, ORS 459.376, ORS 459.995 & ORS 468.090 - ORS 468.140

340-012-0066

Solid Waste Tire Management Classification of Violations

(1) Class I:

(a) Establishing or operating a waste tire storage site without first obtaining a permit;

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

(c) Violating the fire safety requirements of a waste tire storage site permit;

(d) Hauling waste tires without first obtaining a waste tire carrier permit; or

(e) Failing to establish and maintain financial assurance as required by statute, rule, permit or order.

(2) Class II:

(a) Failing to maintain written records of waste tire generation, storage, collection, transportation, or

disposal.

(3) Class III:

(a) Failing to keep required records on use of vehicles;

(b) Failing to post required signs;

(c) Hiring or otherwise using an unpermitted waste tire carrier to transport waste tires; or

(d) Hauling waste tires in a vehicle not identified in a waste tire carrier permit or failing to display

required decals as described in a permittee's waste tire carrier permit.

Stat. Auth.: ORS 459.785 & ORS 468.020

Stats. Implemented: ORS 459.705 - ORS 459.790, ORS 459.992 & ORS 468.090 - ORS 468.140

340-012-0067

Underground Storage Tank (UST) Classification of Violations

(1) Class I:

(a) Failing to investigate or confirm a suspected release;

(b) Failing to establish or maintain the required financial responsibility mechanism;

(c) Failing to obtain the appropriate general permit registration certificate before installing or

operating an UST;

(d) Failing to install spill and overfill protection equipment that will prevent a release, or failing to

demonstrate to the department that the equipment is properly functioning;

(e) Failing to install, operate or maintain a method or combination of methods for release detection

such that the method can detect a release from any portion of the UST system;

(f) Failing to protect from corrosion any part of an UST system that routinely contains a regulated

substance;

(g) Failing to permanently decommission an UST system;

(h) Failing to obtain approval from the department before installing or operating vapor or

groundwater monitoring wells as part of a release detection method;

(i) Installing, repairing, replacing or modifying an UST system in violation of any rule adopted by

the department;

(j) Failing to conduct testing or monitoring, or to keep records where the failure constitutes a

significant operational compliance violation;

(k) Providing, offering or supervising tank services without the appropriate license;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 8

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(1) Demonstrating negligence or incompetence in performing tank services; or

(m) Failing to assess the excavation zone of a decommissioned or abandoned UST when directed to

do so by the department.

(2) Class II:

(a) Continuing to use a method or methods of release detection after period allowed by rule has

expired;

(b) Failing to have a trained UST system operator for an UST facility after March 1, 2004;

(c) Failing to apply for a modified general permit registration certificate;

(d) Failing to have an operation certificate for each compartment of a multi-chambered or multicompartment UST when at least one compartment or chamber has an operation certificate;

(e) Installing, repairing, replacing or modifying an UST or UST equipment without providing the

required notifications;

(f) Failing to decommission an UST in compliance with the statutes and rules adopted by the

department, including, but not limited to, performance standards, procedures, notification,

general permit registration and site assessment requirements;

(g) Providing tank services at an UST facility that does not have the appropriate general permit

registration certificate;

(h) Failing to obtain the identification number and operation certificate number before depositing a

regulated substance into an UST, by a distributor;

(i) Failing, by a distributor, to maintain a record of all USTs into which it deposited a regulated

substance;

(j) Allowing tank services to be performed by a person not licensed by the department;

(k) Failing to submit checklists or reports for UST installation, modification or suspected release

confirmation activities;

(1) Failing to complete an integrity assessment before adding corrosion protection;

(m) Failing by an owner or permittee to pass the appropriate national examination before performing

tank services; or

(n) Failing to provide the identification number or operation certificate number to persons depositing

a regulated substance into an UST.

(3) Class III:

(a) Failing to notify the new owner or permittee of the department's general permit registration

requirements, by a person who sells an UST.

Stat. Auth.: ORS 466.720, ORS 466.746, ORS 466.882, ORS 466.994 & ORS 468.020

Stats: Implemented: ORS 466.706 = ORS 466.835, ORS 466.994 &-ORS-468-,090-=ORS 46$:140 -

340-012-0068

Hazardous Waste Management and Disposal Classification of Violations

(1) Class I:

(a) Failing to make a complete and accurate hazardous waste determination of a residue as required

by OAR 340-102-0011;

(b) Failing to meet Land Disposal Restriction (LDR) requirements when disposing of hazardous

waste;

(c) Operating a hazardous waste treatment, storage or disposal facility (TSD) without first obtaining

a permit or without having interim status;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 9

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(d) Treating, storing or accumulating hazardous waste in a hazardous waste management unit, as

defined in 40 CFR 260.10, that does not meet the unit design or unit integrity assessment criteria

for the hazardous waste management unit;

(e) Accepting, transporting or offering for transport hazardous waste without a uniform hazardous

waste manifest;

(f) Transporting, delivering or designating on a manifest delivery of hazardous waste to a facility not

authorized or permitted to manage hazardous waste; or failing to submit an exception report;

(g) Failing to comply with management requirements for ignitable, reactive, or incompatible

hazardous waste;

(h) Illegally treating or disposing of a hazardous waste;

(i) Failing to submit Land Disposal Restriction notifications;

(j) Failing to have and maintain a closure plan or post closure plan for a Treatment, Storage or

Disposal (TSD) facility or for each regulated hazardous waste management unit, as defined in 40

CFR 260.10, by the owner or operator of facility or unit;

(k) Failing to carry out closure or post closure plan requirements, by an owner or operator of a TSD

facility, such that the certification for completing closure or post closure work is not submitted,

or is incomplete, inaccurate, or non-compliant with the approved plans;

(1) Failing to establish or maintain financial assurance or hazard liability requirements in 40 CFR

264.147 or 40 CFR 265.147, by an owner or operator of a TSD facility;

(m), Failing to follow emergency procedures in a Contingency Plan or other emergency response

requirements during an incident in which a hazardous waste or hazardous waste constituent is

released to the environment or the incident presents a risk of harm to employees, emergency

responders or the public;

(n) Failing to comply with the export requirements in 40 CFR 262.52 for hazardous wastes;

(o) Failing to properly install a groundwater monitoring system in compliance with permit

requirements, by an owner or operator of a TSD facility;

(p) Failing to properly control volatile organic hazardous waste emissions, by a large-quantity

hazardous waste generator or TSD facility, when such failure could result in harm to employees,

the public or the environment;

(q) Failing to inspect, operate, monitor, keep records or maintain in compliance with a permit:

hazardous waste landfill units, incineration equipment, Subpart X treatment equipment,

hazardous waste treatment units, pollution abatement equipment for hazardous waste treatment

or disposal, or hazardous waste monitoring equipment; or

(r) Failing to immediately clean up spills or releases or threatened spills or releases of hazardous

waste, by any person having ownership or control over hazardous waste.

(2) Class II:

(a) Failing to place an accumulation start date on a container used for accumulation or storage of

hazardous waste;

(b) Failing to label a tank having a capacity of 100 gallons or more, or containers equaling more than

110 gallon capacity used for accumulation or storage of hazardous waste;

(c) Failing to post required emergency response information next to the telephone, by a small

quantity generator;

(d) Accumulating hazardous waste more than thirty (30) days beyond the specified accumulation

time frame;

(e) Failing to submit a manifest discrepancy report;

(f) Shipping hazardous waste on manifests that do not comply with department rules;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 10 -

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(g) Failing to prevent the unknown or unauthorized entry of a person or livestock into the waste

management area of a treatment, storage or disposal facility;

(h) Failing to conduct required inspections at hazardous waste generator accumulation sites or

hazardous waste permitted storage areas;

(i) Failing to prepare a contingency plan;

(j) Failing to follow the requirements of a groundwater monitoring program, unless otherwise

classified;

(k) Failing to maintain adequate aisle space to allow the unobstructed movement of personnel, fire

protection equipment, spill control equipment, and decontamination;

(1) Generating, treating, storing or disposing of hazardous waste without complying with the

Personnel Training requirements;

(m) Failing to keep containers of hazardous waste closed, except when adding or removing wastes;

(n) Failing to comply with the requirements for management of containers, including satellite

accumulation, other than the requirements for ignitable, reactive or incompatible waste, by a

hazardous waste generator or storage facility;

(o) Failing to comply with the preparedness, prevention, contingency plan or emergency procedure

requirements, unless otherwise classified;

(p) Failing to manage universal waste and waste pesticide residue in compliance with the universal

waste management requirements or waste pesticide requirements;

(q) Failing to obtain a hazardous waste EPA identification number when required;

(r) Failing to comply with 40 CFR 264 or 265 Subparts 7, W or DD standards, other than unit design

or unit integrity assessment;

(s) Failing to comply with 40 CFR 264 or 265 Subparts AA, BB or CC standards for hazardous

waste generator and TSD facilities, unless otherwise classified; or

(t) Failing to timely submit an annual report, by a hazardous waste generator, TSD facility, or

hazardous waste recycling facility.

(3) Class III:

(a) Accumulating hazardous waste up to thirty (30) days beyond the specified accumulation time

frame;

(b) Failing to label containers equaling 110 gallon capacity or less used for the accumulation or

storage of hazardous waste;

(c) Failing to label a tank having less than 100 gallon capacity used for the accumulation or storage

of hazardous waste;

(d) Failing to maintain on site a copy of the one-time notification regarding hazardous waste that

meets treatment standards by a hazardous waste generator; or

(e) Failing to submit a contingency plan to all police, fire, hospital and local emergency responders.

[Publications: Publications referenced in this rule are available from the agency.]

Stat. Auth.: ORS 459.995, ORS 466.070-ORS 466.080, 466.625 & ORS 468.020

Stats. Implemented: ORS 466.635-466.680, 466.990-466.994 & 468.090-468.140

340-012-0071

Polychlorinated Biphenyl (PCB) Classification of Violations

(1) Class I:

(a) Treating, storing or disposing of PCBs anywhere other than a permitted PCB disposal facility or

a location authorized by the department; or

Rules ofthis Division as last Filed by the SOS 03/29/2006
Attachment 3,2, pg. 11

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(b) Establishing, constructing or operating a PCB disposal facility without first obtaining a permit or

department authorization.

(2) Class 11:

(a) Violating any other requirement related to the treatment, storage, generation or disposal of PCBs

is classified under OAR 340-012-0053.

Stat. Auth.: ORS 459.995, ORS 466.625, ORS 467.030, ORS 468.020 & ORS 468.996

Stats. Implemented: ORS 466.255, ORS 466.265 - ORS 466.270, ORS 466.530 & ORS 466.990 - ORS

466.994

340-012-0072

Used Oil Management Classification of Violations

(1) Class I:

(a) Using used oil as a dust suppressant, pesticide, or otherwise spreading used oil directly in the

environment;

(b) Burning a used oil mixture where the used oil mixture has less than 5,000 Btu/pound;

(c) Offering for sale used oil as specification used oil fuel when the used oil does not meet used oil

fuel specifications;

(d) Selling off-specification used oil fuel to a facility not meeting the definition of an industrial

boiler or furnace;

(e) Burning off-specification used oil in a device that does not meet the definition of an industrial

boiler or furnace and is not otherwise exempt;

(f) Failing to make an on-specification used oil fuel determination when required, by a used oil

generator, transporter, burner or processor;

(g) Storing or managing used oil in a surface impoundment;

(h) Failing to determine whether used oil exceeds the permissible halogen content, by a used oil

transporter, burner or processor;

(i) Failing to perform required closure on a used oil tank or container, by a used oil processor or rerefiner;

(j) Failing to maintain required secondary containment at a used oil transfer facility or by a

processor, burner, or marketer of used oil; or

(k) Failing to immediately clean up spills or releases or threatened spills or releases of used oil, by

any person having ownership or control over the used oil.

(2) Class II:

(a) Failing to obtain a one time written notification from a burner before shipping off-specification

used oil fuel, by a used oil generator, transporter, processor or re-refiner;

(b) Failing to develop, follow and maintain records of a written waste analysis plan, by a used oil

processor;

(c) Failing to close or cover a used oil tank or container;

(d) Failing to timely submit annual used oil handling reports, by a used oil processor;

(e) Failing to label each container or tank used for the accumulation or storage of used oil on site,

unless otherwise classified;

(f) Failing to keep a written operating record at the facility, by used oil processor;

(g) Failing to prepare and maintain an up-to-date preparedness and prevention plan, by a used oil

processor; or

(h) Transporting, processing, re-refining, burning or marketing used oil without first obtaining an

EPA ID number.

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 12

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(3) Class III:

(a) Failing to label one container or tank in which used oil was accumulated on site, if five or more

tanks or containers are present;

(b) Failing to label up to two containers used for the accumulation or storage of used oil on site; or

(c) Failing to label a tank having less than 100 gallon capacity when used for the accumulation or

storage of used oil on site.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from

the agency.]

Stat. Auth.: ORS 459.995, ORS 468.020, ORS 468.869, ORS 468.870 & ORS 468.996

Stats. Implemented: ORS 459A.580 - ORS 459A.585, ORS 459A.590 & ORS 468.090 - ORS 468. .140

340-012-0073

Environmental Cleanup Classification of Violations

(1) Class I:

(a) Violating any otherwise unclassified environmental cleanup-related requirements are addressed

under OAR 340-012-0053.

(2) Class II:

(a) Failing to provide information under ORS 465.250.

Stat. Auth.: ORS 465.280, ORS 465.400 - ORS 465.410, ORS 465.435 & ORS 468.020

Stats. Implemented: ORS 465.210 & ORS 468.090 - ORS 468.140

340-012-0074

Underground Storage Tank (UST) Cleanup Classification of Violations

(1) Class I:

(a) Failing to report a confirmed release from an UST;

(b) Failing to initiate or complete the investigation or cleanup, or to perform required monitoring, of

a release from an UST;

(c) Failing to conduct free product removal;

(d) Failing to properly manage petroleum contaminated soil;

(e) Failing to mitigate fire, explosion or vapor hazards;

(f) Demonstrating negligence or incompetence in performing soil matrix cleanup services; or

(g) Providing or supervising soil matrix cleanup services without obtaining the appropriate license.

(2) Class II:

(a) Failing to report a suspected release from an UST;

(b) Failing to timely submit reports or other documentation from the investigation or cleanup of a

release from an UST; or

(c) Failing to timely submit a corrective action plan or submitting an incomplete corrective action

plan.

Stat. Auth.: ORS 466.746, ORS 466.994 & ORS 468.020

Stats. Implemented: ORS 466.706 - ORS 466.835 & ORS 466.994

340-012-0079

Heating Oil Tank (HOT) Classification of Violations

(1) Class I:

(a) Failing to report a release from an HOT when the failure is discovered by the department;

(b) Failing to initiate and complete the investigation or cleanup of a release from an HOT;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 13

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(c) Failing to initiate and complete free product removal;

(d) Failing to certify that heating oil tank services were conducted in compliance with all applicable

regulations, by a service provider;

(e) Failing, by a responsible party or service provider, to conduct corrective action after the

department rejects a certified report;

(0 Demonstrating negligence or incompetence in performing HOT services; or

(g) Providing or supervising HOT services without first obtaining the appropriate license.

(2) Class II:

(a) Failing to submit a corrective action plan;

(b) Failing to properly decommission an HOT;

(c) Failing to hold and continuously maintain errors and omissions or professional liability

insurance, by a HOT service provider;

(d) Failing to have a supervisor present when performing HOT services;

(e) Failing to report a release from an HOT within 72 hours when the failure is reported to the

department by the responsible person or the service provider; or

(f) Offering to provide heating oil tank services without first obtaining the appropriate service

provider license.

Stat. Auth.: ORS 466.746, ORS 466.858 - ORS 466.994 & ORS 468.020

Stats. Implemented: ORS 466.706, ORS 466.858 - ORS 466.882, ORS 466.994 & ORS 468.090 - ORS

468.140

340-012-0081

Oil and Hazardous Material Spill and Release Classification of Violations

(1) Class I:

(a) Failing to immediately clean up spills or releases or threatened spills or releases of oil or

hazardous materials, by any person having ownership or control over the oil or hazardous

materials;

(b) Failing to immediately notify the Oregon Emergency Response System (OERS) of the type,

quantity and location of a spill of oil or hazardous material, and corrective and cleanup actions

taken and proposed to be taken if the amount of oil or hazardous material released exceeds the

reportable quantity, or will exceed the reportable quantity within 24 hours;

(c) Spilling or releasing any oil or hazardous materials which enters waters of the state;

(d) Failing to activate alarms, warn people in the immediate area, contain the oil or hazardous

material or notify appropriate local emergency personnel;

(e) Failing to immediately implement a required plan; or

(f) Failing to take immediate preventative, repair, corrective or containment action in the event of a

threatened spill or release.

(2) Class II:

(a) Failing to submit a complete and detailed written report to the department of a spill of oil or

hazardous material;

(b) Failing to use the required sampling procedures and analytical testing protocols for oil and

hazardous materials spills or releases;

(c) Failing to coordinate with the department during the emergency response to a spill after being

notified of the department's jurisdiction;

(d) Failing to immediately report spills or releases within containment areas when reportable

quantities are exceeded and exemptions are not met under OAR 340-142-0040;

Rules of this Division as last Filed by the SOS 43/29/2006
Attachment 3.2, pg. 14

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(e) Failing to immediately manage any spill or release of oil or hazardous materials consistent with

the National Incident Management System (NIMS);

(0 Improperly or without approval of the Department, treating, diluting or disposing of spill, or spillrelated waters or wastes; or

(g) Using chemicals to disperse, coagulate or otherwise treat a spill or release of oil or hazardous

materials without prior department approval.

(3) Class III:

(a) Failing to provide maintenance and inspections records of the storage and transfer facilities to the

department upon request; or

(b) Failing, by a vessel owner or operator, to make maintenance and inspection records, and oil

transfer procedures available to the department upon request.

Stat. Auth.: ORS 466.625 & ORS 468.020

Scats. Implemented: ORS 466.635 - ORS 466.680, ORS 466.992, & ORS 468.090 - ORS 468.140

340-012-0082

Contingency Planning Classification of Violations

(1) Class I:

(a) Failing to immediately implement the oil spill prevention and emergency response contingency

plan or other applicable contingency plan, after discovering a spill,;

(b) Operating an onshore or offshore facility without an approved or conditionally approved oil spill

prevention and emergency response contingency plan;

(c) Entering into the waters of the state, by a covered vessel without an approved or conditionally

approved oil spill prevention and emergency response contingency plan or purchased coverage

under an umbrella oil spill prevention and emergency response contingency plan;

(d) Failing to implement prevention measures identified in the facility or covered vessel spill

prevention plan that directly results in a spill;

(e) Failing to maintain equipment, personnel and training at levels described in an approved or

conditionally approved oil spill prevention and emergency response contingency plan;

(f) Failing to establish and maintain financial assurance as required by statute, rule or order; or

(g) Failing by the owner or operator of an oil terminal facility, or covered vessel, to take all

appropriate measures to prevent spills or overfilling during transfer of petroleum or hazardous

material products.

(2) Class II:

(a) Failing to submit an oil spill prevention and emergency response contingency plan to the

department at least 90 calendar days before beginning operations in Oregon, by any onshore or

offshore facility or covered vessel;

(b) Failing to have available on site a simplified field document summarizing key notification and

action elements of a required vessel or facility contingency plan;

(c) Failing, by a plan holder, to submit and implement required changes to a required vessel or

facility contingency plan following conditional approval;

(d) Failing, by a covered vessel or facility contingency plan holder, to submit the required vessel or

facility contingency plan for re-approval at least ninety (90) days before the expiration date of

the required vessel or facility contingency plan;

(e) Failing to submit spill prevention strategies as required; or

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 15

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(f) Failing to obtain department approval of the management or disposal of spilled oil or hazardous

materials, or materials contaminated with oil or hazardous material, that are generated during

spill response.

(3) Class III:

(a) Failing to provide maintenance and inspections records of the storage and transfer facilities to the

department upon request;

(b) Failing, by a vessel owner or operator, to make maintenance and inspection records and oil

transfer procedures available to the department upon request;

(c) Failing to have at least one copy of the required vessel or facility contingency plan in a central

location accessible at any time by the incident commander or spill response manager;

(d) Failing to have the covered vessel field document available to all appropriate personnel in a

conspicuous and accessible location;

(e) Failing to notify the department within 24 hours of any significant changes that could affect

implementation of a required vessel or facility contingency plan; or

(f) Failing to distribute amended page(s) of the plan changes to the department within thirty (30)

calendar days of the amendment.

Stat. Auth.: ORS 468B.350

Scats. Implemented: ORS 468B.345

340-012-0083

Ballast Water Management Classification of Violations

(1) Class I:

(a) Discharging of ballast water without authorization.

(2) Class II:

(a) Failing to report ballast water management information to the department at least 24 hours before

entering the waters of this state; or

(b) Failing to file an amended ballast water management report after a change in the vessel's ballast

water management plan.

Stat. Auth.: ORS 783.600 to ORS 783.992

Stats. Implemented: ORS 783.620

340-012-0097

Dry Cleaning Classification of Violations

(1) Class I:

(a) Discharging dry cleaning wastewater to a sanitary sewer, storm sewer, septic system, boiler or

into waters of the state;

(b) Failing to have a secondary containment system under and around each dry cleaning machine or

each tank or container of stored solvent;

(c) Failing to report a release outside of a containment system of more than one pound of dry

cleaning solvent released in a 24-hour period;

(d) Failing to repair the cause of a release within a containment system of dry cleaning solvent;;

(e) Failing to immediately clean up a release or repair the cause of a release outside of a containment

system of dry cleaning solvents or waste water contaminated with solvent;

(f) Illegally treating or disposing hazardous waste generated at a dry cleaning facility;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 16

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(g) Transporting, delivering or designating on a manifest, delivery of hazardous waste generated at a

dry cleaning facility to a destination facility not authorized or permitted to manage hazardous

waste; or

(h) Failing to conduct weekly perchloroethylene leak inspections, and to measure the

perchloroethylene refrigerated condenser outlet temperature and log the results, by a dry cleaning

owner or operator.

(2) Class II:

(a) Failing to place or store hazardous waste generated at a dry cleaning facility in properly labeled

and closed containers;

(b) Accumulating hazardous waste beyond the specified accumulation time period;

(c) Failing, by a dry cleaning owner or operator, to prominently post the Oregon Emergency

Response System telephone number so the number is immediately available to all employees of

the dry cleaning facility;

(d) Failing to immediately clean up a release within a containment system of dry cleaning solvent or

hazardous waste;

(e) Failing to use closed, direct-coupled delivery, by a person delivering perchloroethylene to a dry

cleaning facility;

(f) Failing to have closed, direct-coupled delivery for perchloroethylene, by a dry cleaning operator;

(g) Failing to remove all dry cleaning solvent or solvent containing residue or to disconnect utilities

from the dry cleaning machine within 45 days of the last day of dry cleaning machine operations;

or

(h) Failing to timely submit an annual report to the department, by a dry cleaning owner or operator.

(3) Class III:

(a) Failing to notify the department of change of ownership or operator or closure at a dry cleaning

business or dry cleaning store.

Stat. Audi,: ORS 466.070 - ORS 466.080, ORS 466.625 & ORS 468.020

Stats. Implemented: ORS 466.635 -- ORS 466.680, ORS 466.990, ORS 466.994 & ORS 468.090 -

468.140

340-012-0130

Determination of Violation Magnitude

(1) For each civil penalty assessed, the magnitude is moderate unless:

(a) A selected magnitude is specified in 340-012-0135 and information is reasonably available to the

department to determine the application of that selected-magnitude;-or

(b) The department determines, using information reasonably available to it, that the magnitude

should be major under section (3) or minor under section (4).

(2) If the department determines, using information reasonably available to the department, that a

general or selected magnitude applies, the department's determination is the presumed magnitude of

the violation, but the person against whom the violation is alleged has the opportunity and the

burden to prove that another magnitude applies and is more probable than the presumed magnitude.

(3) The magnitude of the violation is major if the department finds that the violation had a significant

adverse impact on human health or the environment. In making this finding, the department will

consider all reasonably available information, including, but not limited to: the degree of deviation

from applicable statutes or commission and department rules, standards, permits or orders; the extent

of actual effects of the violation; the concentration, volume, or toxicity of the materials involved;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 17

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

and the duration of the violation. In making this finding, the department may consider any single

factor to be conclusive.

(4) The magnitude of the violation is minor if the department finds that the violation had no more than a

de minimis adverse impact on human health or the environment, and posed no more than a de

minimis threat to human health or other environmental receptors. In making this finding, the

department will consider all reasonably available information including, but not limited to: the

degree of deviation from applicable statutes or commission and department rules, standards, permits

or orders; the extent of actual or threatened effects of the violation; the concentration, volume, or

toxicity of the materials involved; and the duration of the violation. In making this finding, the

department may consider any single factor to be conclusive.

Stat. Auth.: ORS 468.020 & ORS 468.130

Scats. Implemented: ORS 459.376, ORS 459.995, ORS 465.900, ORS 465.992, ORS 466.990 - ORS

466.994, ORS 468.090 - ORS 468.140 & ORS 468B.450

340-012-0135

Selected Magnitude Categories

(1) Magnitudes for selected Air Quality violations will be determined as follows if sufficient information

is reasonably available to the department to make a determination:

(a) Opacity limitation violations:

(A) Major - Opacity measurements or readings of 20 percent opacity or more over the applicable

limitation, or an opacity violation by a federal major source as defined in OAR 340-200-

0020;

(B) Moderate - Opacity measurements or readings greater than 10 percent and less than 20

percent over the applicable limitation; or

(C) Minor - Opacity measurements or readings of 10 percent or less over the applicable

limitation.

(b) Operation of a major source, as defined in OAR 340-200-0020, without first obtaining the

required permit:

(A) Major - The Best Achievable Control Technology (BACT) analysis shows need for

additional controls and/or if offsets are required.

(c) Air contaminant emission limitation violations for selected air pollutants: Magnitude

determinations under this subsection shall be made based upon significant emission rate amounts

listed in OAR 340-200-0020 (Tables 2 and 3),

(A) Major:

(i) Exceeding the annual limit as established by permit, rule or order by more than the above

amount;

(ii) Exceeding the monthly limit as established by permit, rule or order by more than ten

percent of the above amount;

(iii) Exceeding the daily limit as established by permit, rule or order by more than 0.5 percent

of the above amount; or

(iv) Exceeding the hourly limit as established by permit, rule or order by more than 0.1

percent of the above amount,

(B) Moderate:

(i) Exceeding the annual limit as established by permit, rule or order by an amount from 50

up to and including 100 percent of the above amount;

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 18

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(ii) Exceeding the monthly limit as established by permit, rule or order by an amount from

five up to and including ten percent of the above amount;

(iii) Exceeding the daily limit as established by permit, rule or order by an amount from 0.25

up to and including 0.50 percent of the above amount; or

(iv) Exceeding the hourly limit as established by permit, rule or order by an amount from

0.05 up to and including 0.10 percent of the above amount.

(C) Minor:

(i) Exceeding the annual limit as established by permit, rule or order by an amount less than

50 percent of the above amount;

(ii) Exceeding the monthly limit as established by permit, rule or order by an amount less

than five percent of the above amount;

(iii) Exceeding the daily limit as established by permit, rule or order by an amount less than

0.25 percent of the above amount; or

(iv) Exceeding the hourly limit as established by permit, rule or order by an amount less than

0,05 percent of the above amount.

(d) Violations of Emergency Action Plans:

(A) Major - Major magnitude in all cases.

(e) Violations of on road motor vehicle refinishing rules contained in OAR 340-242-0620:

(A) Minor - Refinishing 10 or fewer on road motor vehicles per year.

(f) Asbestos violations:

(A) Major - More than 260 lineal feet or more than 160 square feet of asbestos-containing

material;

(B) Moderate - From 40 lineal feet up to and including 260 lineal feet or from 80 square feet up

to and including 160 square feet of asbestos-containing material; or

(C) Minor - Less than 40 lineal feet or 80 square feet of asbestos-containing material.

(D) The magnitude of the asbestos violation may be increased by one level if the material was

comprised of more than five percent asbestos.

(g) Open burning violations:

(A) Major - Initiating or allowing the initiation of open burning of 20 or more cubic yards of

commercial, construction, demolition and/or industrial waste; or 5 or more cubic yards of

prohibited materials (inclusive of tires); or 10 or more tires;

(B) Moderate - Initiating or allowing the initiation of open burning of 5 or more, but less than 20

cubic yards of commercial, construction, demolition and/or industrial waste; or 2 or more,

but less than 5 cubic yards of prohibited materials (inclusive of tires); or 3 to 9 tires; or if the

department lacks sufficient information upon which to make a determination of the type of

waste, number of cubic yards or number of tires burned; or

(C) Minor - Initiating or allowing the initiation of open burning of less than 5 cubic yards of

commercial, construction, demolition and/or industrial waste; or less than 2 cubic yards of

prohibited materials (inclusive of tires); or 2 or less tires.

(D) The selected magnitude may be increased one level if the department finds that one or more

of the following are true, or decreased one level if the department finds that none of the

following are true:

(i) the burning took place in an open burning control area;

(ii) the burning took place in an area where open burning is prohibited;

(iii) the burning took place in a non-attainment or maintenance area for PM10 or PM2.5; or

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 19

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(iv) the burning took place on a day when all open burning was prohibited due to

meteorological conditions.

(2) Magnitudes for selected violations pertaining to Water Quality will be determined as follows if

sufficient information is reasonably available to the department to make a determination:

(a) Violating wastewater discharge permit effluent limitations:

(A) Major:

(i) The dilution (D) of the spill or technology based effluent limitation exceedance was less

than two, when calculated as follows: D = ((QR /4) + Qt)l Qt, where QR is the estimated

receiving stream flow and Q] is the estimated quantity or discharge rate of the incident;

(ii) The receiving stream flow at the time of the water quality based effluent limitation

(WQBEL) exceedance was at or below the flow used to calculate the WQBEL; or

(iii) The resulting water quality from the spill or discharge was as follows:

(I) For discharges of toxic pollutants: Cs/D was more than CAcute, where Cs is the

concentration of the discharge, D is the dilution of the discharge as determined under

(2)(a)(A)(i), and CAcute is the concentration for acute toxicity (as defined by the

applicable water quality standard);

(II) For spills or discharges affecting temperature, when the discharge temperature is at or

above 32 degrees centigrade after two seconds from the outfall; or

(III) For BOD5 discharges: (BOD5)/D is more than 10, where BOD5 is the concentration

of the five day Biochemcial Oxygen Demand of the discharge and D is the dilution of

the discharge as determined under (2)(a)(A)(i).

(B) Moderate:

(i) The dilution (D) of the spill or the technology based effluent limitation exceedance was

two or more but less than 10 when calculated as follows: D = ((Q R /4)+ Qa )/ Ql , where

QR is the estimated receiving stream flow and Ql is the estimated quantity or discharge

rate of the discharge; or

(ii) The receiving stream flow at the time of the WQBEL exceedance was greater than, but

less than twice, the flow used to calculate the WQBEL.

(C) Minor:

(i) The dilution (D) of the spill or the technology based effluent limitation exceedance was 10

or more when calculated as follows: D = ((QR/4) + Qi)l Qr, where QR is the receiving

stream flow and Qi is the quantity or discharge rate of the incident; or

(ii) The receiving stream flow at the time of the WQBEL exceedance was twice the flow or

more of the flow used to calculate the WQBEL.

(b) Violating numeric water-quality standards:

(A) Major:

(i) Increased the concentration of any pollutant except for toxics, dissolved oxygen, pH, and

turbidity, by 25 percent or more of the standard;

(ii) Decreased the dissolved oxygen concentration by two or more milligrams per liter below

the standard; (iii) Increased the toxic pollutant concentration by any amount over the

acute standard or by 100 percent or more of the chronic standard;

(iv) Increased or decreased pH by one or more pH units from the standard; or

(v) Increased turbidity by 50 or more nephelometric turbidity units (NTU) over background.

(B) Moderate:

Rules of this Division as last Filed by the SOS 03129/2006
Attachment 3.2, pg. 20

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(i) Increased the concentration of any pollutant except for toxics, pH, and turbidity by more

than 10 percent but less than 25 percent of the standard;

(ii) Decreased dissolved oxygen concentration by one or more, but less than two, milligrams

per liter below the standard;

(iii) Increased the concentration of toxics pollutants by more than 10 percent but less than

100 percent of the chronic standard;

(iv) Increased or decreased pH by more than 0.5 pH unit but less than 1.0 pH unit from the

standard; or

(v) Increased turbidity by more than 20 but less than 50 NTU over background.

(C) Minor:

(i) Increased the concentration of any pollutant, except for toxics, pH, and turbidity, by 10

percent or less of the standard;

(ii) Decreased the dissolved oxygen concentration by less than one milligram per liter below.

the standard; (iii) Increased the concentration of toxic pollutants by 10 percent or less of

the chronic standard;

(iv) Increased or decreased pH by 0.5 pH unit or less from the standard; or

(v) Increased turbidity by 20 NTU or less over background.

(c) The selected magnitude under (2)(a) or (b) may be increased one level if the violation:

(i) Occurred in a water body that is water-quality limited (listed on the most current 303(d) list) and

the discharge is the same pollutant for which the water body is listed;

(ii) Depressed oxygen levels or increased turbidity and/or sedimentation in a stream in which

salmonids may be rearing or spawning as indicated by the beneficial use maps available at OAR

340-041-0101 through -0340;

(iii) Violated a bacteria standard either in shell-fish growing waters or during the period from June 1

through September 30; or

(iv) Resulted in a documented fish or wildlife kill.

(3) Magnitudes for selected violations pertaining to Solid Waste will be determined as follows if

sufficient information is reasonably available to the department to make a determination:

(a) Operating a solid waste disposal facility without a permit:

(A) Major - The volume of material disposed of exceeds 400 cubic yards;

(B) Moderate - The volume of material disposed of is greater than or equal to 40 cubic yards and

less than or equal to 400 cubic yards; or

(C) Minor The volume of materials disposed of is less than 40 cubic yards.

(D) The magnitude of the violation may be raised by one magnitude if the material disposed of

was either in the floodplain of waters of the state or within 100 feet of waters of the state.

(b) Failing to accurately report the amount of solid waste disposed:

(A) Major - The amount of solid waste is underreported by 15 percent or more of the amount

received;

(B) Moderate - The amount of solid waste is underreported by 5 percent or more, but less than

15 percent, of the amount received; or

(C) Minor - The amount of solid waste is underreported by less than 5 percent of the amount

received.

(4) Magnitudes for selected violations pertaining to Hazardous Waste will be determined as follows if

sufficient information is reasonably available to the department to make a determination:

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 21

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(a) Failure to make a hazardous waste determination:

(A) Major - Failure to make the determination on five or more waste streams;

(B) Moderate - Failure to make the determination on three or four waste streams; or

(C) Minor - Failure to make the determination on one or two waste streams.

(b) Hazardous Waste treatment and disposal violations OAR 340-012-0068 (1)(b), (c), (h), (k), (I),

(tn), (p), (q) and (r):

(A) Major:

(i) Treatment or disposal of more than 55 gallons or 330 pounds of hazardous waste; or

(ii) Treatment or disposal of more than three gallons or 18 pounds of acutely hazardous

waste.

(B) Moderate:

(i) Treatment or disposal of 55 gallons or 330 pounds or less of hazardous waste; or

(ii) Treatment or disposal of three gallons or 18 pounds or less of acutely hazardous waste.

(c) Hazardous waste management violations OAR 340-012-0068 (1)(d), (e) (f), (g), (i), (j),

(n), and (2)(a), (b), (d), (e), (h), (i), (k), (m), (n), (o), (p), (r) and (s):

(A) Major:

(i) Hazardous waste management violations involving more than 1,000 gallons or 6,000

pounds of hazardous waste, or

(ii) Hazardous waste management violations involving more than 20 gallons or 120 pounds

of acutely hazardous waste.

(B) Moderate:

(i) Hazardous waste management violations involving more than 250 gallons or 1,500

pounds, up to and including 1,000 gallons or 6,000 pounds of hazardous waste; or

(ii) Hazardous waste management violations involving more than 5 gallons or 30 pounds, up

to and including 20 gallons or 60 pounds of acutely hazardous waste;

(C) Minor:

(i) Hazardous waste management violations involving 250 gallons or 1,500 pounds or less of

hazardous waste; or

(ii) Hazardous waste management violations involving 5 gallons or 30 pounds or less of

acutely hazardous waste.

(5) Magnitudes for selected Used Oil violations (OAR 340-012-0072) will be determined as follows if

sufficient information is reasonably available to the department to make a determination:

(a) Used Oil violations OAR 340-012-0072 (1)(f), (h), (i), (j); and (2)(a) through (j):

(A) Major - Used oil management violations involving more than 1,000 gallons or 7,000 pounds

of used oil or used oil mixtures;

(B) Moderate - Used oil management violations involving more than 250 gallons or 1,750

pounds, up to and including 1,000 gallons or 7,000 pounds of used oil or used oil mixture; or

(C) Minor - Used oil management violations involving 250 gallons or 1,750 pounds or less of

used oil or used oil mixtures.

(b) Used Oil spill or disposal violations OAR 340-012-0072 (1)(a) through (e), (g) and (k):

(A) Major - A spill or disposal involving more than 420 gallons or 2,940 pounds of used oil or

used oil mixtures;

(B) Moderate - A spill or disposal involving more than 42 gallons or 294 pounds, up to and

including 420 gallons or 2,940 pounds of used oil or used oil mixtures, or

Rules of this Division as last Filed by the SOS 03/29/2006
OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

Attachment 3.2, pg. 22

340-012-0140

(C) Minor - A spill or disposal of used oil involving 42 gallons or 294 pounds or less of used oil

or used oil mixtures.

[ED. NOTE: Tables & Publications referenced are available from the agency.]

Stat. Auth.: ORS 468.065 & ORS 468A.045

Scats. Implemented: ORS 468.090 . ORS 468.140 & ORS 468A.060

Determination of Base Penalty

(1) Except for Class III violations and for penalties assessed under OAR 340-012-0155, the base penalty

(BP) is determined by applying the type, class and magnitude of the violation to the matrices set

forth in this section. For Class III violations, no magnitude determination is required,

(2) $8,000 Penalty Matrix:

(a) The $8,000 penalty matrix applies to the following:

(A) Any violation of an air quality statute, rule, permit or related order committed by a person

that has or should have a Title V permit or an Air Contaminant Discharge Permit (ACDP)

issued pursuant to New Source Review (NSR) regulations or Prevention of Significant

Deterioration (PSD) regulations, or section 112(g) of the federal Clean Air Act.

(B) Open burning violations as follows:

(i) Any violation of an open burning statute, rule, permit or related order committed by a

permitted industrial facility.

(ii) Any violation of OAR 340-264-0060(3) in which 25 or more cubic yards of prohibited

materials or more than 15 tires are burned, except when committed by a residential

owner-occupant.

(C) Any violation of 468B.025(1)(a) or (1)(b), or of ORS 468B.050(1)(a) by a person without an

National Pollutant Discharge Elimination System (NPDES) permit.

(D) Any violation of a water quality statute, rule, permit or related order by:

(i) A person that has a NPDES permit, or that has or should have a Water Pollution Control

Facility (WPCF) permit, for a municipal or private utility sewage treatment facility with a

permitted flow of five million or more gallons per day.

(ii) A person that has a major industrial source NPDES permit.

(iii) A person that has a population of 100,000 or more, as determined by the most recent

national census, and either has or should have a WPCF Municipal Stormwater

Underground Injection Control (UIC) System Permit, or has a NPDES Municipal

Separated Storm Sewer Systems (MS4) Stormwater Discharge Permit.

(iv) A person that has or should have a WPCF permit for a major vegetable or fruit

processing facility, for a major mining operation involving over 500,000 cubic yards per

year, or for any mining operation using chemical leaching or froth flotation.

(v) A person that installs or operates a prohibited Class I, II, III, IV or V UIC system, except

for a cesspool.

(E) Any violation of an underground storage tanks statute, rule, permit or related order

committed by the owner, operator or permittee of 10 or more UST facilities or a person who

is licensed or should be licensed by the department to perform tank services.

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 23

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(F) Any violation of a heating oil tank statute, rule, permit, license or related order committed by

a person who is licensed or should be licensed by the department to perform heating oil tank

services.

(G) Any violation of ORS 468B.485, or related rules or orders regarding financial assurance for

ships transporting hazardous materials or oil,

(H) Any violation of a used oil statute, rule, permit or related order committed by a person who

is a used oil transporter, transfer facility, processor or re-refiner, off specification used oil

burner or used oil marketer,

(I) Any violation of a hazardous waste statute, rule, permit or related order by:

(i) A person that is a large quantity generator or hazardous waste transporter.

(ii) A person that has or should have a treatment, storage or disposal facility permit.

(J) Any violation of an oil and hazardous material spill and release statute, rule, or related order.

(K) Any violation of a polychlorinated biphenyls (PCBs) management and disposal statute, rule,

permit or related order.

(L) Any violation of ORS Chapter 465, UST or environmental cleanup statute, rule, related order

or related agreement.

(M) Unless specifically listed under another penalty matrix, any violation of ORS Chapter 459 or

any violation of a solid waste statute, rule, permit, or related order committed by:

(i) A person that has or should have a solid waste disposal permit.

(ii) A person with a population of 25,000 or more, as determined by the most recent national

census.

(b) The base penalty values for the $8,000 penalty matrix are as follows:

(A) Class I:

(i) Major $8000;

(ii) Moderate -- $4000;

(iii) Minor -- $2000.

(B) Class II:

(i) Major -- $4000;

(ii) Moderate -- $2000;

(iii) Minor -- $1000.

(C) Class III: $750

(3) $6,000 Penalty Matrix

(a) The $6,000 penalty matrix applies to the following:

(A) Any violation of an air quality statute, rule, permit or related order committed by a person

that has or should have an ACDP permit, except for NSR, PSD and Basic ACDP permits.

(B) Any violation of an asbestos statute, rule, permit or related order except those violations

listed in section (5) of this rule.

(C) Any violation of a vehicle inspection program statute, rule, permit or related order committed

by an auto repair facility.

(D) Any violation of a water quality statute, rule, permit or related order committed by:

(i) A person that has a NPDES Permit, or that has or should have a WPCF Permit, for a

municipal or private utility sewage treatment facility with a permitted flow of two million

or more, but less than five million, gallons per day.

(ii) A person that has a minor industrial source NPDES Permit, or has or should have a

WPCF Permit, for an industrial source.

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3,2, pg. 24

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(iii) A person that has or should have applied for coverage under an NPDES or a WPCF

General Permit, except an NPDES Stormwater Discharge 1200-C General Permit for a

construction site of one acre or more, but less than five acres in size and except for an

NPDES 700-PM General Permit for suction dredges.

(iv) A person that has a population of less than 100,000 but more than 10,000, as determined

by the most recent national census, and has or should have a WPCF Municipal

Stormwater UIC System Permit or has an NPDES MS4 Stormwater Discharge Permit.

(v) A person that has or should have a WPCF permit for a mining operation involving from

100,000 up to 500,000 cubic yards other than those operations using chemical leachate or

froth flotation.

(vi) A person that owns, and that has or should have registered, a UIC system that disposes of

wastewater other than stormwater or sewage.

(E) Any violation of an UST statute, rule, permit or related order committed by a person who is

the owner, operator or permittee of five to nine UST facilities.

(F) Unless specifically listed under another penalty matrix, any violation of ORS Chapter 459 or

other solid waste statute, rule, permit, or related order committed by:

(i) A person that has or should have a waste tire permit or

(ii) A person with a population of more than 5,000 but less than or equal to 25,000, as

determined by the most recent national census.

(G) Any violation of a hazardous waste management statute, rule, permit or related order

committed by a person that is a small quantity generator.

(b) The base penalty values for the $6,000 penalty matrix are as follows:

(A) Class I;

(i) Major - $6,000.

(ii) Moderate - $3,000.

(iii) Minor - $1,500.

(B) Class II:

(i) Major - $3,000.

(ii) Moderate - $1,500.

(iii) Minor - $750.

(C) Class III: $500.

(4) $2,500 Penalty Matrix:

(a) The $2,500 penalty matrix applies to the following:

(A) Any violation of any statute, rule, permit, license, or order committed by a person not listed

under another penalty matrix.

(B) Any violation of an air quality statute, rule, permit or related order committed by a person

not listed under another penalty matrix.

(C) Any violation of OAR 340-264-0060(3) in which 25 or more cubic yards of prohibited

materials or more than 15 tires are burned by a residential owner-occupant.

(D) Any violation of a vehicle inspection program statute, rule, permit or related order

committed by a natural person, except for those violations listed in section (5) of this rule.

(E) Any violation of a water quality statute, rule, permit, license or related order not listed under

another penalty matrix and committed by:

(i) A person that has an NPDES permit, or has or should have a WPCF permit, for a

municipal or private utility wastewater treatment facility with a permitted flow of less

than two million gallons per day.

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 25

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(ii) A person that has or should have applied for coverage under an NPDES Stormwater

Discharge 1200-C General Permit for a construction site that is more than one, but less

than five acres,

(iii) A person that has a population of 10,000 or less, as determined by the most recent

national census, and either has an NPDES MS4 Stormwater Discharge Permit or has or

should have a WPCF Municipal Stormwater UIC System Permit.

(iv) A person who is licensed to perform onsite sewage disposal services or who has

performed sewage disposal services.

(v) A person, except for a residential owner-occupant, that owns and either has or should

have registered a UIC system that disposes of stormwater or sewage.

(vi) A person that has or should have a WPCF individual stormwater UIC system permit.

(F) Any violation of an onsite sewage disposal statute, rule, permit or related order, except for a

violation committed by the residential owner-occupant.

(G) Any violation of an UST statute, rule, permit or related order if the person is the owner,

operator or permittee of two to four UST facilities.

(H) Any violation, except a violation related to a spill or release, of a used oil statute, rule, permit

or related order committed by a person that is a used oil generator.

(I) Unless listed under another penalty matrix, any violation of a hazardous waste management

statute, rule, permit or related order committed by a person that is a conditionally exempt

generator if the violation does not impact the person's generator status.

(J) Any violation of ORS Chapter 459 or other solid waste statute, rule, permit, or related order

committed by a person with a population less than 5,000, as determined by the most recent

national census.

(K) Any violation of the labeling requirements of ORS 459A.675 through 459A.685.

(L) Any violation of rigid pesticide container disposal requirements by a conditionally exempt

generator of hazardous waste.

(b) The base penalty values for the $2,500 penalty matrix are as follows:

(A) Class I:

(i) Major -- $2500;

(ii) Moderate -- $1250;

(iii) Minor -- $625.

(B) Class II:

(i) Major -- $1250;

(ii) Moderate -- $625;

(iii) Minor -- $300.

(C) Class III: $200

(5) $1,000 Penalty Matrix:

(a) The $1,000 penalty matrix applies to the following:

(A) Any violation of an open burning statute, rule, permit or related order committed by a

residential owner-occupant at the residence, not listed under another penalty matrix.

(B) Any violation of visible emissions standards by operation of a vehicle.

(C) Any violation of an asbestos statute, rule, permit or related order committed by a residential

owner-occupant.

(D) Any violation of an onsite sewage disposal statute, rtile, permit or related order of OAR

chapter 340, division 44 committed by a residential owner-occupant.

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 26

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(E) Any violation of an UST statute, rule, permit or related order committed by a person who is

the owner, operator or permittee of one UST facility.

(F) Any violation of an HOT statute, rule, permit or related order not listed under another

penalty matrix.

(G) Any violation of a dry cleaning facility statute, rule, permit or related order.

(H) Any violation of a statute, rule, permit or order relating to rigid plastic containers, except for

violation of the labeling requirements under OAR 459A.675 through 459A.685.

(I) Any violation of a statute, rule or order relating to the opportunity to recycle.

(J) Any violation of a statute, rule, permit or order relating to woodstoves; except a violation

related to the sale of new or used woodstoves.

(K) Any violation of an UIC system statute, rule, permit or related order by a residential owneroccupant, when the UIC disposes of stormwater or sewage.

(L) Any violation by a person that has or should have applied for coverage under an NPDES

700-PM General Permit for Suction Dredges.

(b) The base penalty values for the $1,000 penalty matrix are as follows:

(A) Class I:

(i) Major -- $1000;

(ii) Moderate -- $500;

(iii) Minor -- $250.

(B) Class II:

(i) Major -- $500;

(ii) Moderate -- $250;

(iii) Minor -- $125.

(C) Class III: $100

Stat. Auth.: ORS 468.020 & ORS 468.090 - ORS 468.140

Stats. Implemented: ORS 459.995, ORS 459A.655, ORS 459A.660, ORS 459A.685 & ORS 468.035

340-012-0155

Additional or Alternate Civil Penalties

(1) The following violations and violators may be subject to additional civil penalties as specified

below:

(a) In addition to any other penalty prescribed by these rules, any person who intentionally or

recklessly violates any provisions of ORS 164.785, 459.205 - 459.426, 459.705 - 459.790, ORS

-chapters 465, 466,-467, 468, or 468A or 468B or any rule or standard or order of the commission

adopted or issued pursuant to ORS 459.205 - 459.426, 459.705 - 459.790, ORS chapters 465,

466, 467, 468, 468A, or 468B, that results in or creates the imminent likelihood for an extreme

hazard to the public health or that causes extensive damage to the environment, may incur a civil

penalty of up to $100,000. When determining the civil penalty to be assessed under this

subsection, the director will apply the following procedures:

(A) Select one of the following base penalties after evaluating the cause of the violation:

(i) $50,000 if the violation was caused intentionally;

(ii) $75,000 if the violation was caused recklessly;

(iii) $100,000 if the violation was caused flagrantly.

(B) Then determine the civil penalty through application of the following formula: BP + [(.1 x

BP) (P + H + O + C)] + EB.

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 27

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

(b) In addition to any other penalty prescribed by these rules, any person who intentionally or

negligently causes or permits the discharge of oil to waters of the state will incur a civil penalty

not to exceed $20,000 dollars for each violation. The amount of the penalty is determined by

doubling the penalty derived from application of the $8,000 penalty matrix in 340-012-0140(2)

and the civil penalty formula contained in OAR 340-012-0045.

(c) In addition to any other penalty prescribed by these rules, any person who willfully or negligently

causes or permits the discharge of oil to state waters will incur, in addition to any other penalty

derived from application of the $8,000 penalty matrix in 340-012-0140(2) and the civil penalty

formula contained in OAR 340-012-0045,.a civil penalty commensurate with the amount of

damage incurred. The amount of the penalty will be determined by the director with the advice

of the director of the Oregon Department of Fish and Wildlife. In determining the amount of the

penalty, the director may consider the gravity of the violation, the previous record of the violator

in complying with the provisions of ORS 468B.450 to 468B.460, and such other considerations

the director deems appropriate.

(d) In addition to any other penalty prescribed by these rules, any person who has care, custody or

control of a hazardous waste or a substance that would be a hazardous waste except for the fact

that it is not discarded, useless or unwanted will incur a civil penalty according to the schedule

set forth in this subsection for the destruction, due to contamination of food or water supply by

such waste or substance, of any of the following wildlife that are property of the state:

(A) Each game mammal other than mountain sheep, mountain goat, elk or silver gray squirrel,

$400.

(B) Each mountain sheep or mountain goat, $3,500.

(C) Each elk, $750.

(D) Each silver gray squirrel, $10.

(E) Each game bird other than wild turkey, $10.

(F) Each wild turkey, $50.

(G) Each game fish other than salmon or steelhead trout, $5.

(H) Each salmon or steelhead trout, $125.

(I) Each fur-bearing mammal other than bobcat or fisher, $50.

(J) Each bobcat or fisher, $350.

(K) Each specimen of any wildlife species whose survival is specified by the wildlife laws or the

laws of the United States as threatened or endangered, $500.

(L) Each specimen of any wildlife species otherwise protected by the wildlife laws or the laws of

the United States, but not otherwise referred to in this section, $25.

(2) The following violations are subject to the civil penalties specified below, in lieu of civil penalties

calculated pursuant to OAR 340-012-0045:

(a) Until December 31, 2005, whenever an underground storage tank fee is due and owing under

ORS 466.785 or 466.795, the director may issue a civil penalty of up to $100 for each day the fee

is due and owing.

(b) Until December 31, 2005, the department will assess a field penalty as specified under OAR 340-

150-0250 for Class I, Class II or Class III violations under OAR 340-012-0067 unless the

department determines that an owner, operator or permittee is not eligible for the field penalty.

In such cases of ineligibility, the penalty will be calculated according to the procedures in OAR

chapter 340, division 12.

(c) Any owner or operator of a vessel discharging ballast water in violation of ORS 783.635 may

incur a civil penalty not to exceed $5,000 for each violation. In determining the amount of the

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 3.2, pg. 28

OREGON ADMINISTRATIVE RULES

Chapter 340, Division 012 - Department of Environmental Quality

penalty, the director will consider whether the violation was intentional, negligent or without any

fault and will consider the quality and nature of risks created by the violation, the previous

record of the violator in complying with the provisions of ORS 468B.450 to 468B.460, and such

other considerations the director deems appropriate.

(d) Any owner or operator of a vessel violating the ballast water reporting requirements in ORS

783.640 will incur a civil penalty not to exceed $500 per violation.

(e) Air emission sources operating under the Western Backstop S02 Trading Program will be

assessed a civil penalty of at least $5,000 for each ton and each day of violation in excess of the

applicable allowance limitation as determined by OAR chapter 340 division 228.

(f) Any owner or operator of a confined animal feeding operation that has not applied for or does not

have a permit required by ORS 468B.050 will be assessed a civil penalty of $500.

(g) Any person that fails to comply with Toxics Use and Hazardous Waste Reduction Plan, system

or summary requirements of ORS 465.003 to 465.034 may incur a civil penalty of $500 for each

violation on each day.

Stat. Auth.: ORS 465, ORS 466, ORS 468.020, ORS 468.130, ORS 468.996, & ORS 783.992

Stats. Implemented: ORS 465.021, ORS 466.785, ORS 466.835, ORS 466.992, O.RS 468.090 - ORS

468.140, ORS 468.996, ORS 46.8B.220, ORS 468B.450 & ORS 783.992.

Rules of this Division as last Filed by the SOS 03/29/2006
Attachment 4

Evidence that the State followed the Administrative

Procedures Act

4.1 Public notice in the Secretary of State's Oregon Bulletin, June

1, 2005.

4.2 Public notice in the Secretary of State's Oregon Bulletin,

September 1, 2005.

4.3 Certificate and Order for Filing Permanent Administrative

Rules OAR-340-150-0250, filed March 29, 2006.

Attachment 4,1, pg. 1

OREGON SECRETARY STATE

10- Oregon State Archives

Oregon Bulletin

June 1, 2005

Department of Environmental Quality

Chapter 340

Adm. Order No.: DEQ 4-2005

Filed with Sec. of State: 5-13-2005

Certified to be Effective: 6-1-05

Notice Publication Date: 8-1-04

Rules Adopted: 340-012-0027,340-012-0053,340-012-0074,340-012-0079,340-012-0097,340-012-0130,340-

012-0145,340-012-0]50,340-012-0160,340-012-0162

Rules Amended: 340-012-0026, 340-012-0028, 340-012-0030, 340-012-0041, 340-012-0045, 340-012-0055, 340-

012-0065,340-012-0066,340-012-0067,340-012-0068,340-012-0071,340-012-0072,340-012-0073,340-012-0081,

340-012-0082, 340-012-0083, 340-200-0040

Rules Repealed: 340-012-0046, 340-012-0052

Rules Ren. & Amended: 340-012-0040 to 340-012-0038, 340-012-0050 to 340-012-0054, 340-012-0090 to 340-

012-0135, 340-012-0042 to 340-012-0140, 340-012-0049 to 340-012-0155, 340-012-0048 to 340-012-0165, 340-012-

0047 to 340-012-0170

Subject: The goal of this rulemaking is to develop and implement an effective compliance and enforcement program

that is understandable, encourages compliance, is equitable, and appropriately reflects the severity of the violation.

The Department originally proposed revisions to these enforcement rules in January 2004. In light of comments from

the public regarding the proposed amendments to the violation classifications and selected magnitudes, the

Department is delaying proposed amendments to those sections pending further review and consideration. With the

current proposal, the Department has amended and resubmitted the rulemaking package. This rulemaking package

includes many of the proposed amendments from the January 2004 proposed rulemaking, with the exception of the

proposed amendments to the selected magnitudes and many of the violation classifications, The Department expects

to propose amendments to those sections in late 2005, after further dialogue with stakeholders.

The rules adopted apply to individuals, businesses, and federal, state and local government agencies against whom

the Department enforces its rules and enabling statutes, These rules do not create any new duties for the regulated

community but, due to changes in base penalties and matrix assignments, penalty amounts for a given violation may

increase or decrease if a given violation is referred for formal enforcement. The main changes for Division 12 in this

rulemaking include:

... Clarifying the differences between informal and formal enforcement processes.

... Listing more sub-program violations separately rather than combining them, to improve ease of use.

... Modifying the penalty matrices, including increasing the values of the $10,000 penalty matrix, adding a new

intermediate penalty matrix to start at $6,000, increasing the values for the $2,500 matrix, decreasing the values for
Attachment 4.1, pg. 2

the $1,000 matrix and eliminating the $500 penalty matrix. The matrices have also been modified so that small

business and other smaller permitted sources, in most cases, fall into a lower penalty matrix.

... Modifying the notice of noncompliance process to allow for a two-tiered notification (e.g., Warning Letters and

Pre-Enforcement Notices).

These amendments, if adopted, will be submitted to the U.S. Environmental Protection Agency (EPA) as a revision

to the State Implementation Plan, which is a requirement of the Clean Air Act.

Rules Coordinator: Larry McAllister--(503) 229-6412
Attachment 4.2, pg. 1

Oregon Bulletin

September 1, 2005

Notices of Proposed Rulemaking and Proposed Rulemaking Hearings

Department of Environmental Quality

Chapter 340

Date: Time: Location:

10-4-05 6 p.m. briefing DEQ

7 p.m. hearing 700 SE Emigrant

Suite 330

Pendleton, OR 97801

10-5-05 6 p.m. briefing DEQ

7 p.m. hearing 2020 SW 4th Ave.

Suite 400

Portland, OR 97201

10-6-05 6 p.m. briefing DEQ

7 p.m. hearing 221 Stewart Ave.

Suite 201

Medford, OR 97501

Hearing Officer: Les Carlough, DEQ

Stat. Auth.: ORS 459.376(1), 459.995, 468.020(1), 468.035(1)(J), 468.045(1)(c), 465.900, 466,210, 466.990, 466.992, 466.994 & 783.992

Stats. Implemented: ORS 454.635 - 454.645, 459.376, 459.995, 465.900, 466.210, 466.990 - 466.994, 468.090 - 468.140, 468.996, 468B.025,

46813.220, 46813.450 & 783.992

Proposed Amendments: 340-012-0053, 340-012-0054, 340-012-0055, 340-012-0060, 340-012-0065, 340-012-0066, 340-012-0067, 340-012-0068,

340-012-0071, 340-012-0072, 340-012-0074, 340-012-0079, 340-012-0081, 340-012-0082, 340-012-0097, 340-012-0130, 340-012-0135, 340-012-

0140

Last Date for Comment: 10-17-05

Summary: Oregon's environmental enforcement program (OAR 340-012) lists "classifications" and "magnitudes" for the various violations of

Oregon environmental law. These two factors are used for determining the base penalty of a violation. This rulemaking proposal seeks to create

greater clarity between these concepts by classifying violations based on how important the requirement is to achieving the intended environmental

and public health protections and how probable it is that a violation will result in significant harm to the environment or pose significant threat to

public health. This means that "potential" harm is considered in determining the magnitude of the violation using the facts of the particular situation

rather than classifying a violation based on an improbable (but possible) worst case scenario. This rulemaking also proposes revisions to the

classifications and magnitudes of some violations to better reflect the department's environmental priorities and to create consistency among

programs. Where re-classification of a violation is proposed it may lead to fewer cases being referred for formal enforcement; in some limited

instances violations are being classified to a more serious classification. For the latter there may be a greater likelihood of civil penalties being

imposed. Finally, this rulemaking proposes revisions to the penalty matrix for some open burning rule violations and water quality suction dredge

general permit violations.

These amendments, if adopted, will be submitted to the U.S. Environmental Protection Agency (EPA) as a revision to the State Implementation

Plan, which is a requirement of the Clean Air Act.

To submit comments or request additional information, please contact Jenine Camilleri at the Department of Environmental Quality (DEQ), 811

SW 6th Avenue, toll free in Oregon at 800-452-4011 or 503-229-6775, camilleri._jenine@deq.state.or.us, 503-229-6762, or visit DEQ's website

http:/Iwww.deq.state.or.us/news/index.asp

Rules Coordinator: Larry McAllister

Address: Department of Environmental Quality, 811 SW Sixth Ave., Portland, OR 97204

Telephone: (503) 229-6412

Attachment 4.3, pg. 1

Secretary of State

Certificate and Order for Filing

PERMANENT ADMINISTRATIVE RULES

I. certify that the attached copies* are true, full and correct copies of the PERMANENT Rule(s) adopted on .March 2;2006 by the

Date prior to or same as filing date.

Environmental Quality Commission to be administered by DEQ OAR Cha ter 340

Agency and Division Administrative Rules Chapter Number

LarryMcAllister 503-229-6412

Agency Rules Coordinator Telephone

811 SW Sixth Avenue, Portland, OR 97204 mcallister.larry@,deq.state.or.us

Address/email

5,• ,

to become effective March 31, 2006. Rulemaking Notice was published in the September 1, 2005Oregon Bulletin.**

hdonth and Year

IF I L E D

MAR 2 9 2006

ARCHIVES DIVISION.

SECRETARY OF STATE

ADOPT: NA

AMEND: OAR 340-012-0027, 340-012-0053, 340-012-0054, 340-012-0055, 340-012-0060, 340-012-0065, 340-012-0066, 340-012-

0067, 340-012-0068, 340-012-0071, 340-012-0072, 340-012-0073, 340-012-0074, 340-012-0079, 340-012-0081, 340-012-0082, 340-

012-0083, 340-012-0097, 340-012-0130, 340-012-0135, 340-012-0140, 340-012-0155, OAR 340-200-0040_

REPEAL: NA

RENUMBER: NA

AMEND AND RENUMBER: NA

Stat. Authorized: ORS 459.376(1), 459.995, 468.020(1), 468.035(1)(7), 468.045(1)(c), 465.900, 466.210, 466.990, 466.992, 466.994

& 783.992

Stats. Implemented: ORS 454.635 - 454.645, 459.376, 459995, 465.900, 466.210, 466.990 - 466.994, 468A.035, 468.090 - 468.140,

468.996, 468B.025, 468B.220, 468B.450 & 7831992

Other Authority: NA

RULE SUMMARY

Summary: Oregon's environmental enforcement program (OAR 340-012) lists "classifications" and "magnitudes" for the various

violations of Oregon environmental law. These two factors are used for determining the base penalty of a violation. This rulemaking

creates greater clarity between these concepts by classifying violations based on how important the requirement is to achieving the

intended environmental and public health protections and how probable it is that a violation will result in significant harm to the

environment or pose significant threat to public health. This means that "potential" harm is considered in determining the magnitude

of the violation using the facts of the particular situation rather than classifying a violation based ont an improbable (but possible)

worst case scenario. This rulemaking revises the classifications and magnitudes of some violations to better reflect the department's

environmental priorities and to create consistency among programs. Where re-classification of a violation is modified it may lead to

fewer cases being referred for formal enforcement; in some limited instances violations are classified to a more serious classification.

For the latter there may be a greater likelihood of civil penalties being imposed. Finally, this rulemaking revises the penalty matrix for

some open burning rule violations and water quality suction dredge general permit violations.

These amendments, along with OAR 340-200-0040, will be submitted to the U.S. Environmental Protection Agency (EPA) as a

revision to the State Implementation Plan, which is a requirement of the Clean Air Act.

3/24.06 1

RULE CAPTION

Enforcement Procedure and Civil Penalties, Chapter 340, Division 12

RULEMAKING ACTION
Attachment 4.3, pg. 2 .

MN&27. . Authorized Signer Date

>^SWe2)

Printed name '

*Copies include a photocopy of this certificate with paper and electronic copies of each rule listed in the Rulemaldng Action.

**The Oregon Bulletin is published on the Ist of each month and updates the rule text found in the Oregon Administrative Rules Compilation. Notice forms must be snhmoitted to the

Administrative Rules Unit, Oregon State Archives, 800 Slum= Street NE, Salem, Oregon 97310 by 5:00 nn on the 15th day of the preceding month unless this deadline falls ona'Saturday,

Sunday or legal holiday when Notice forms are accepted until 5:00 pen on the preceding workday
Attachment 5

Evidence of Adequate Public Notice

5.1 Affidavit of Publication: The Oregonian, Notice of

September 2, 2005 publication.

5.2 Affidavit of Publication: Daily Journal of Commerce,

Notice of September 2, 2005 publication.

Attachment 5.1, pg. 1 Pe ®rcgon^rnEST. 1850

Practically Indispensable,

1320 SW Broadway, Portland, OR 97201-3499

Affidavit of Publication

Si F! J , duly sworn depose and say that I am the Principal Clerk Of The Publisher of The

regonian, a newspaper of general circulation, as defined by ORG 193.010 and 193.020, published in the city of Portland, in

:ultnomah County, Oregon; that the advertisement, the printed text of which is shown below, was published without interruption

the entire and regular issue The Oregonian or the issue on the following dates:

212005

t

OFFICIAL SEAL f

REBECCA SEID

COMMISSION NO387505N

t'

MY COMMISSION EXP IRES JAN. 23, 2009

VI Order Number: 0001497212.

HE Oregon Department of Environmental Quality (DEQ) is proposing to revise OAR chapter 340, division 12 (rules

egarding enforcement and civil penalties). This rulemaking proposes revisions to the classifications and magnitudes of some

iolations to better reflect the department's environmental priorities and to create consistency among programs. These two

actors are used for determining the base penalty and are also used as the basis for internal enforcement guidance that

p rovides direction on when penalties are to be assessed. DEQ is also proposing to revise OAR chapter 340 division 200, rule

1040 (State of Oregon Clean Air Act implementation Plan). These amendments, if adopted, will be submitted to the U.S,.

Environmental Protection Agency as a revision to the State Implementation Plan, which is a requirement of the Clean Air Act.

)EQ is conducting three hearings for this rulemaking: (1) 10/4105, 7:00 p.m. (informational briefing at 6:00 p.m.), DEC)

)ffices, 700 SE Emigrant, Suite 330, Pendleton, Oregon; (2) 10/5/05, 7:00 p.m. (informational briefing at 6:00 pail.), DEQ

)ffices, 2020•SW 4th Avenue, Suite 400, Portland, Oregon, and (3) 10/6/05, 7:00 p.m. (informational briefing at 6:00 p.m.),

)EQ Offices, 221 Stewart Avenue, Suite 201, Medford, Oregon. Each hearing will begin with a brief overview of the proposed

.ale changes, followed by the opportunity for members of the public to provide oral and written comment. Comments on the

roposed rulemaking may be submitted in writing via mail, fax or e-mail at anytime prior to the comment deadline of Monday,

)ctober 17, 2005.

or further information or copies of the proposed changes, please go to httpillwwwideq.state..or.us/programs/enforcementl

r contact Deborah Nesbit, DEQ, Office of Compliance and Enforcement, 811 S.W. 6th Avenue, Portland, Oregon,

'esbit.deborah@deq.state.or.us , 1-800452-4011, extension 540 or 503-229-5340.

E V

Sf? 0 8 2005 J

Accounting urnoe

Dept. of Environmental l ar.;ty

7.19inin) .o&)

incipal Clerk of the Publisher:

Subscribed and sworn to before me this date:

Notary:

STATE OF OREGON, COUNTY OF MULTNOMAH, --ss.

I, MARC CAPLAN, being first duly sworn, depose and say that I am a Manager of the DAILY JOURNAL OF

COMMERCE, a newspaper of general circulation in the counties of CLACKAMAS, MULTNOMAH and

WASHINGTON as defined by ORS 193.010 and 193.020; published at Portland in the aforesaid County and

State; that I know from my personal knowledge that the

NOTICE OF HEARINGS

NOTICE OF HEARINGS

The. Oregon Department ofEnvironmental.

Quality (DEQ) is proposing to revise OAR

chapter 340, division 12. (rules regarding enforcement and civil penalties). This rulemeking proposes revisions to-the classifications

and magnitudes of softie violations to better

reflect ths.depertment'sonvironmental priorities and to create consistency among pro:

grams. These two factors are used for determining the base penalty and' are-.also used

as the basis-for Internal enforaemenfguidapce that provides direction on when penalties are to be assessed. DEQ Is also Proposing to revise OAR: chapter 340: division200;.

yule 0040 (State of Oregon.Clean: Air Act km

-plementatlorj Plan). These. amendments; if

adopted; wlil;be submitted to the U.S. Environmental Protection Agency as a. revision to

the State Implementation: Plan,•which is arequirement of the Clean AIr Act

DEQ is conducting. three hearings; for this

rulemakmg (1) 1014105; s 7::00 p.m.

(informational briefing at-600 p m); DEQ Of

lice,.,- 700.`SE Emigrant, Suite 330,

Pendleton, Oregon; (2) 1015105, 7:00 p.m.

(informational briefing at 6:00 p.m.),-DEQ Offices, 2020 SW 4th Avenue, Suite 400, Portland, Oregon,. and (3) 1016105, 7:00 p.m.

(informational briefing at 6:00 p.m.), DEO Offices, 221Stewart Avenue, Suite 201, MO:

ford, Oregon: Each hearing Mil begin with a

brief bveniiew-of,the proposed rule changes,

followed by the opportunity, for members.of

the public to provide oral and written corn- .

merit. Comments: on they proposed

rulemaking may be submitted in writing via

mall, ,

fax or e-mail at. anytime prior to the

comment deadline of October 17, 2005..

For further information of copies of the proposed changes, please go to http:llwww.deq.

state.or.uslprograrns/enforcement) or contact

Deborah. Nesbit, DEQ, Office of Compliance

and Enforcement, 611. S.W. 6th Avenue,

Portland, Oregon, Nesbit.deborah rdeq.stat

e.or.us, f-600-452-4011; extension 540 'or.

503.229-5340. -

Published: Sept. 2, 2005. PF10101346-lt

AFFIDAVIT OF PUBLICATION

or, C)

P.O, Box 101271 Portland, Oregon 97296-0127 / (503)226 .1311 FAX (503) 222-5358 6' %..v

a printed copy of which is attached, was published in the entire issue of this newspaper for 1 time(s) in the

following issues:

0910212005.

Subscribed and sworn to before me this 2nd day of September, 2005.

OFFICIAL SEAL

SCOTT D. CAPLAN

NOTARY PUBLIC-OREGON

C NO 361262 MY COMMISSION

OMMISSION

EXPIRES SEP7EM3EA t$, 2008

OREGON DEQ

Attn: DEB NESBIT

811 SW SIXTH AVE.

PORTLAND, OR 97204

Order No.: 10101348

Client's Reference No.:

Attachment 6

Certification of public hearing

See paragraph three of cover letter and Attachment 7.1

Attachment 7

Compilation of Public Comments and Department's

Response

7.1 Presiding Officer's Report for Rulemaking Hearings

dated January 17, 2006.

7.2 Compilation of Public Comment

7.3 Advisory Group Membership List

Attachment 7.1, pg. 1

State of Oregon

Department of Environmental Quality Memorandum

Date: January 17, 2006

To: Environmental Quality Commission

From: Leslie Carlough, Presiding Officer

Office of Compliance and Enforcement

Subject: Presiding Officer's Report for Rulemaking Hearing

Title of Proposal: Revised Rulemaking Proposal Regarding Enforcement

Procedures and Assessment of Civil Penalties for

Environmental Violations

Hearings Held: 1014105, 7:00 p.m. (informational briefing at 6:00 p.m.),

Pendleton DEQ office

1015105, 7:00 p.m. (informational briefing at 6:00 p.m.),

Portland DEQ Northwest Region office

1016105, 7:00 p.m. (informational briefing at 6:00 p.m.),

Medford DEQ office

The department did not receive any attendees for the public hearings in Pendleton or Portland.

Before the public hearing in Medford, Leslie Carlough, Senior Policy Analyst for the Office of

Compliance and Enforcement, held an informational briefing detailing the proposed changes to

Division 12. Dr. Carlough answered questions from the two attendees. The Department

convened the rulemaking hearings on the proposal referenced above at the appointed times.

People were asked to sign attendance sheets and to sign registration forms if they wished to

present comments. People were also advised that the hearing was being recorded. A concerned

citizen, Conde Cox, testified at the public hearing.

The Department received written comments from eleven parties during the public comment

period, which ran from September 1, 2005 to October 17, 2005. The following parties submitted

written comments during the public comment period: Northwest Pulp and Paper Association,

Associated Oregon Industries, City of Pendleton, Oregon Association of Clean Water Agencies,

Laurence Tuttle, U.S. Environmental Protection Agency, Boise Cascade Corporation, City of

Corvallis, Jared Kahn and Sarah Melton, National Land Rights League, Inc. and Oregon Metal

Industry Council.

The Department will include these comments in the Summary of Comments and Agency

Responses, Attachment B to the Memorandum for this rulemaking.

Page 1 of 1 Attachment D

00124
00125
Attachment 7.2, pg. 1

Summary of Response to Comments on

September 2005 Division 12 Rulemaking Proposal

Background

In 2001, the Department of Environmental Quality (DEQ or Department) began a

comprehensive review of its enforcement rules as part of its Strategic Directions.

The goal of the review is to ensure that DEQ's enforcement rules and operations

are understandable and encourage compliance and that penalties are equitable and

appropriately reflect the severity of the violations. As a result of the review, the

Department proposed initial rule amendments in January 2004. Due to the

complexity of the issues involved, the Department divided the "Division 12"

(Oregon Administrative Rules (OAR) Chapter 340, Division 12) rulemaking into

two phases.

Phase I of the rulemaking resulted in replacing the Notice of Non-compliance

(NON) with two types of notifications (the warning letter and the pre-enforcement

notice) and modified portions of the penalty calculation process, including the

penalty matrices and aggravating factors. The penalty matrices were also

modified to increase penalties for some violators and to ensure that in most cases

small businesses with typically less waste or less sophistication would receive.

lower penalties. Phase I changes to the enforcement rules became effective on

June 1, 2005.

This Phase II rulemaking addresses the "classification" and "magnitude" of

violations. This package also proposes to delete some of the references to

quantity of material burned that are currently in the penalty matrix and moves

suction dredgers operating under water quality general permits from the $6,000

matrix to the $1,000 matrix.

The Department noticed the Phase II rule package for public comment between

September 1 and October 17, 2005. During this period, written comments were

submitted by:.

City of Pendleton;

Northwestern Pulp and Paper Association (NWPP);

U.S. Environmental Protection Agency (EPA);

City of Corvallis;

Oregon Metal Industry Council (Oregon Metals);

James Foley, National Land Rights League, Inc.;

Boise Cascade, LLC;

Laurence Tuttle;

Associated Oregon Industries (AOI);

Jared Kahn and Sarah Melton; and

Oregon Association of Clean Water Agencies (ACWA).

tOO66

Attachment B

January 17, 2006
Attachment 7.2, pg. 2

In addition, oral testimony at the October 6, 2005, public hearing in Medford was

given by:

Conde Cox.

Below is a detailed summary of written and oral comments and the Department

response to each. Comments are organized by rule, starting with general

comments not directed to any particular rule. Unless clearly noted, Division 12

citations reflect the proposed rules made available for public comment in

September 2005. The September 2005 rule package is available on the web at:

http://www . deq. state. or. u s/pro grams/enforcementl.

General Comments Not Directed to a Particular Rule

Comment 1: Why do these proposed rules only "apply to individuals, businesses,

and federal, state, and local government agencies," and not the regulated

community? (Jared Kahn and Sarah Melton)

Response: Commentor correctly points out that the statement of applicability in

the Notice of Proposed Rulemaking fact sheet may not be complete. The Division

12 rules themselves do allow enforcement against any regulated entity liable for a

violation under the substantive rules including other kinds of regulated entities,

for example non-profits and trusts, which were not listed in the fact sheet.

Comment 2: Why do these proposed changes "not create any new substantive

violations" for the regulated community? (Jared Kahn and Sarah Melton)

Response: This rulemaking only involves proposed changes to the Division 12

rules which are procedural rules that establish how the Department calculates a

penalty for a given violation and how it must conduct certain administrative

procedures. The rules do not change any compliance obligations for the regulated

community because the requirements themselves are found in the substantive laws

for each program. For example, the Division 12 rules establish-how-to..calculate . a

penalty for illegally disposing of hazardous waste, but the law prohibiting illegal

disposal of hazardous waste is found at ORS 466.100 and not in Division 12.

Comment 3: Will the changes to the rules result in more penalties or less? Are

there certain violations that will be referred for penalties more or less often now?

Will Class II violations, i.e., the majority of violations, be referred for penalties

more or less often now? (Jared Kahn and Sarah Melton)

Response: The goal of revising the Division 12 rules was to ensure that the

Department's operations are understandable and encourage compliance, and that

penalties are equitable and appropriately reflect the severity of the violations. The

rule revisions affect the size of the penalties but do not affect whether a given

00067

Attachment B 2

January 17, 2006
Attachment 7.2, pg. 3

violation will receive a penalty or not and the Department retains discretion about

whether to assess penalties in any given case. However, because Class I

violations are more likely to be referred for formal enforcement and penalized by

the Department, changing the classifications may indirectly affect the numbers of

penalties assessed in some programs. The Department does not anticipate a

significant change in the numbers of penalties assessed for any Class of violation.

Comment 4: What are DEQ's "environmental priorities" that these changes to

the rules are suppose to reflect? What significant factor(s) differentiate Class I,

Class H, and Class III violations? (Jared Kahn and Sarah Melton)

Response: The priorities and the factors used to differentiate the classes are laid

out in detail in the Director's explanatory memo accompanying the public notice

which is available online at www.deq.state.or.us/programslenforcement/.

Comment 5: Is there clear guidance for when formal enforcement will be taken?

Will there be public involvement and document availability of the violations

when they occur, and when the DEQ pursues enforcement? (Jared Kahn and

Sarah Melton)

Response: The Department is developing an internal management directive (aka

enforcement guidance) outlining the Director's expectations about when an

inspector is to refer a violation to DEQ's Office of Compliance and Enforcement

for formal enforcement. A draft summary of the guidance for Phase II of the rules

was made part of the public notice package, which can be found online at

www.deq.state.or.us/programslenforcementl. Public involvement in the contested

case proceedings and public access to information regarding enforcement cases

are governed by ORS Chapter 183 (Oregon's Administrative Procedures Act),

OAR 137 (Attorney General model rules of procedure) and OAR 340-011 (DEQ

supplemental procedural rules). There is also possible public involvement under

ORS 468.126 and 468B.032. In addition, the Department issues press releases

about its enforcement actions which are available on the web at

http:/lwww.deq. state.or.uslnews/index.asp.

Comment 6: The proposed revisions perpetuate and expand DEQ's discretion to

enforce Oregon's environmental laws and regulations, and provide neither

deterrence, nor consistency, nor equity. (Lawrence Tuttle)

Response: The goal of revising the Division 12 rules was to ensure that the

Department's operations are understandable and encourage compliance, and that

penalties are equitable and appropriately reflect the severity of the violations.

Toward that end, the Department took advice from an internal work group

primarily composed of managers from all the program areas , and representing all

regional and headquarters offices. It also took advice from an external advisory

group composed of large and small business, small cities, public water

management agencies, industry associations, and environmental groups.

Attachment B 3

January 17, 2006

00..'. G`3
Attachment 7.2, pg. 4

Representatives from the Lane Regional Air Pollution Authority and the U.S.

Environmental Protection Agency also participated. Changes were also made

based on comments received during the public comment period. The proposed

rule changes represent the culmination of that advice and the Department believes

the proposed changes to the rules meet the goals as described above. Regarding

the Department's enforcement discretion, please see the Department's response to

Comment no. 2 regarding OAR 340-012-0041(1) below on page 7.

Comments Directed to Specific Rules

Definitions -

OAR 340-012-0030(16)

Existing rule for which no change is proposed: "`Prior Significant Action'

(PSA) means any violation cited in an FEA [formal enforcement action], with or

without admission of a violation, that becomes final by payment of a civil penalty,

by a final order of the commission or the department, or by judgment of a court."

Comment: A violation that becomes final in a formal enforcement action

increases the PSA factor in the penalty formula and therefore increases the

penalty for subsequent violations. When a person self discloses a violation, that

violation should not constitute a PSA. (Associated Oregon Industries (AOI))

Response: The Department applauds voluntary steps to meet the terms of the selfdisclosure policy by establishing environmental management systems, by selfevaluating compliance, and by self-disclosing violations. Commentor suggests

that a violation that has been self-disclosed should not constitute a "prior

significant action" that would increase the penalty in case of future violation. The

Department disagrees. First, the likelihood that a self-disclosed violation would

increase a future penalty is remote. The only time this could happen is when all

of the following occur: (i) the entity has a significant violation despite its

proactive efforts, (ii) the violation is sufficiently significant that DEQ initiates

formal enforcement, (iii) the violation is the subject of a final order in the matter;

(iv) the entity subsequently causes another significant violation despite its

proactive efforts, (v) that second violation is sufficiently significant that DEQ

initiates formal enforcement, and (vi) that second violation is also the subject of a

final order. In addition, the entity could still reduce the penalty for the second

violation by meeting the terms of the self-disclosure policy. The self-disclosure

policy rewards entities by mitigating or eliminating the penalty for self-disclosed

violations, but self disclosure does not eliminate the fact that the significant

violation did occur. If an entity subsequently causes another significant violation,

the Department believes that a self-disclosed violation should constitute a prior

significant action.

Attachment B 4

January 17, 2006

00069
Attachment 7.2, pg. 5

Warning Letters, Pre-Enforcement Notices and Notices of Permit

Violation -

OAR 340-012-0038(1) and (2)

Existing rules for which no changes are proposed:

"(1) A Warning Letter (WL) is a written notice of an alleged violation for which

formal enforcement is not anticipated. WLs may contain an opportunity to correct

noncompliance as a means of avoiding formal enforcement. A WL generally will

identify the alleged violation(s) found, what needs to be done to comply, and the

consequences of further noncompliance. WLs will be issued under the direction

of a manager or authorized representative. A person receiving a WL may provide

information to the department to clarify the facts surrounding the alleged

violation(s). If the department determines that the conduct identified in the WL

did not occur, the department will withdraw or amend the WL, as appropriate,

within 30 days. A WL is not an FEA and does not afford any person a right to a

contested case hearing."

"(2) A Pre-Enforcement Notice (PEN) is a written notice of an alleged violation

that the department is considering for formal enforcement. A PEN generally will

identify the alleged violations found, what needs to be done to comply, the

consequences of further noncompliance, and the formal enforcement process that

may occur. PENs will be issued under the direction of a manager or authorized

representative. A person receiving a PEN may provide information to the

department to clarify the facts surrounding the alleged violations. If the

department determines that the conduct identified in the PEN did not occur, the

department will withdraw or amend the PEN, as appropriate, within 30 days.

Failure to send a PEN does not preclude the department from issuing an FEA. A

PEN is not a formal enforcement action and does not afford any person a right to

a contested case hearing."

Comment: What are the substantive differences between the old NONs and the

new PENs and WLs? (Jared Kahn and Sarah Melton)

Response: Before the Phase I rules were adopted, Notices of Noncompliance

(NONs) were used to notify recipients that the Department had identified a

violation(s) and to warn them about the consequences. Some NONs warned that

enforcement might occur if the recipients did not correct a violation or repeated it.

Other NONs informed recipients that the Department was commencing formal

enforcement. This process was confusing to some recipients. The Department

revised these letters to be clear about the purpose of DEQ's correspondence.

These different kinds of letters will now be captioned according to their purpose.

The Warning Letter warns the recipient about the violation(s) and requires the

facility to come into compliance or be subject to formal enforcement. The PreEnforcement Notice gives notice that the Department is initiating formal

enforcement. The new captions do not otherwise change substantive or

Attachment B 5

January 17, 2006

00070
Attachment 7.2, pg. 6

procedural law and will not affect the number of notices issued or the number of

penalties assessed.

Formal Enforcement Actions -

OAR 340-012-0041(1)

Existing rule for which no changes are proposed: "FEAs may require that the

respondent take action within a specified timeframe or may assess civil penalties.

The department may issue an NPV. [notice of permit violation] or FEA whether or

not it has previously issued a Notice of Noncompliance, WL [warning letter] or

PEN [pre-enforcement notice] related to the issue or violation. Unless specifically

prohibited by statute or rule, the department may issue an FEA without first

issuing an NPV."

Comment 1: For the first time, the Department will proceed to formal

enforcement and civil penalties for a regulated company for the first occurrence of

Class II violations. Such a significant change must be set out in the rules so that

all regulated companies will have fair notice rather than confined to enforcement

guidance. The guidance is not binding like a . rule, may be revised without notice

and comment, and has historically been overlooked by some Department staff

exercising "enforcement discretion." (AOl)

Response: OAR 340-012-0041(2) states "A Notice of Civil Penalty Assessment

(CPA) may be issued for the occurrence of any class of violation that is not

limited by the NPV requirement of OAR 340-012-0038(3)" and makes clear that

the Department may penalize any violation of the laws it administers. The

Department believes no further notice is needed. Since the classification process

was first adopted, the Department has tended to focus penalty actions on higher

classification violations and less frequently assessed penalties on lower class

violations. This practice was never codified in Division 12, because binding rules

governing when the Department may or may not assess penalties for the first

occasion of any particular violation would interfere with deterrence and might

encourage violation. Also, EPA has informed DEQ that an inability to assess .

penalties on the first occasion of a violation violates minimum federal delegation

requirements for state administration of programs under the Clean Air Act, the

Solid Waste Disposal Act, the Clean Water Act, and the underground injection

control provisions of the Safe Drinking Water Act. Nonetheless, the Department

shares the commentor's interest in making consistent the application of its internal

management directive on enforcement, Toward that end, DEQ trained its staff

and management at all levels of the agency on the new rules and implementation

strategies from Phase I of the rulemaking and will conduct further training when

Phase II of the rulemaking is complete,

Comment 2: Why isn't there a requirement that the Department institute

enforcement against violators, at least for Class I violations? Good enforcement

00071.

Attachment B 6

January 17, 2006
Attachment 7.2, pg. 7

actions can have a real benefit to a community in terms of a positive effect on

environment, positive effect on human health and positive effect on the quality of

life in southern Oregon. (Conde Cox)

Response: The Department agrees that formal enforcement benefits communities

by encouraging compliance with environmental laws (see "General Deterrence of

Environmental Violation: A Peek into the Mind of the Regulated Public", which

can be found online at

www.deq.state.or,us/programslenforcement/DeterreneeReport.pdf). However, the

Department has found that discretion to penalize or not penalize in a given

situation is necessary for effective execution of the agency's enforcement duties.

Flexibility is needed to balance various factors including: whether sufficient

evidence exists to successfully prevail in the matter, whether compliance is more

likely to be achieved through non-enforcement means, whether the particular

violation is lower or higher priority for the use of limited Department resources,

and the need and likelihood of creating deterrence to further violations. The

Department attempts to apply this discretion in a fair and consistent manner using

enforcement guidance to staff. Pursuant to this guidance, the Department requires

inspectors to refer the most important violations, including most Class I

violations.

Comment 3: The rules should clearly state that not all Class I violations will be

referred for formal enforcement. This would ensure that those not familiar with

Department enforcement rules understand the shift in these rules regarding lowpriority Class I violations. The Department also would be allowing itself

flexibility in determining whether or not to refer a particular violation. The

current language forces the Department to refer a violation, even one that the

Department determines is not worth expending resources on, or face a potential

third-party lawsuit. (ACWA)

Response: The Department agrees that it should not be required to take formal

action in any particular case and that discretion is needed for types of cases and

factual circumstances in which the Department determines enforcement is not the

appropriate remedy. However, the Department believes that it already possesses

such discretion, that it would not be forced to take action in any particular case,

and that a specific rule authorizing its discretion for Class I violations might

create more confusion than certainty.

Violations that Apply to All Programs --

OAR 340-012-0053(1)

Comment: The rule lacks specificity and includes too many Class I violations. If

a violation is a Class I when it should really be Class II or a Class II when it

should really be a Class III, there can be harm to, and creation of stigma for, a

regulated company's reputation. (AOI)

Attachment B 7

January 17, 2006

0007?
Attachment 7.2, pg. 8 _

Response: The four enumerated Class I violations in -0053(1) are serious and

important to the operation of every program. The Department does not believe

that these violations should be Class II violations because they involve activities

where a regulated entity failed to comply with a requirement although they had

ample notice of the obligation, such as violating a Department order or submitting

false information to the Department that masked a violation. The Department

believes that classifying these violations as Class I deters regulated entities

because they can foresee that these violations could cause harm to, and create a

stigma for, their reputations.

OAR 340-012-0053(1)(a)

Proposed rule: "Violation of a requirement or condition of a commission or

department order, consent order, agreements or consent judgment (formerly called

judicial consent decree) or compliance schedule contained in a permit" (proposed

new text underlined and proposed deletion in strikeout).

Comment 1: The Department should narrow this rule by including language that

considers the likelihood of the actual or potential impact to human health or the

environment or can have great significance to the regulatory structure of a given ,

program. (AOT)

Response: Violation of a compliance schedule in a permit had already been a

Class I violation in some programs for many years. It had been a Class I violation

because the compliance schedule requirements listed in the permits are binding

legal obligations generally tailored to the particular circumstances of the entity

and generally created through formal legal processes in which the entity had an

opportunity to participate. The Department considers these requirements to be

important and critical to the operation of the program, which should be sufficient

to make violation of them Class I violations. There may be circumstances where

a less-significant violation of a compliance order would be Class I under this rule.

The Department, in working with its advisory groups, considered adding language

involving impact, similar to the idea presented by the commentor. However, the

Department declined to adopt that alternative for two reasons. First, one of the

goals of the rulemaking is to eliminate fact-based magnitude language from the

classifications. Second, the Department needs flexibility in determining the

importance and equity of individual violations in the context of the permit and the

situation. This is the process the Department has used in the past and, to our

knowledge, it has not previously created any problems or inconsistencies.

Comment 2: The Department's permits include many compliance orders that

contain incremental steps towards solving an overall environmental problem.

This Class I violation should be limited to those causing real environmental

damage. (ACWA)

00073

Attachment B 8

January 17, 2006
Attachment 7.2, pg. 9

Response: Permits generally contain an assortment of different kinds of

requirements which are grouped into "schedules" according to their purposes and

importance. Most "compliance schedules" are individually drafted, developed,

negotiated, evaluated, publicly reviewed, and incorporated into a permit to solve

individual facility compliance issues. The Department believes that the conditions

of a compliance schedule in a permit are important requirements that serve the

same purpose as, and are essentially the equivalent of, a Final Order which is also

Class I violation. (See response to comment 1 above.) For these reasons, the

Department believes that no special showing of environmental consequences

should be required. The Department will consider the relative importance of the

requirement and the environmental consequences of the violation in determining

the magnitude of the violation and whether to refer the violation for formal

enforcement.

OAR 340-012-0053(1)(b)

Proposed rule: "Submitting false, inaccurate or incomplete information to the

department where the submittal masked a another separate violation, caused

environmental harm, or caused the department to misinterpret any substantive

fact" is a Class I violation. (proposed deletion in strikeout)

Comment 1: The Department should exclude in its criteria for Class I violations

reporting violations that purportedly mask a separate Class II or Class III

violation. Otherwise, a company could be cited for a Class I offense when the

underlying risk of harm to human health, the environment or the regulatory

structure of a given environmental program fails to meet the "significant, direct"

threat level that DEQ intends to define as a Class I violation. (Oregon Metals)

Response: Most environmental laws are primarily implemented through various

self-monitoring and reporting requirements. Therefore, a fundamental necessity

is that the information reported to the Department is truthful and accurate.

Violations of reporting laws that mask any violation are significant to the

regulatory integrity of the program and should be a Class I violation regardless of

the class of the masked violation.

Comment 2: The rule makes any unintentional and unknowing garden variety

error in a submittal to the Department (including even typos) a Class I violation

regardless of whether it meets the "significant, direct" threat level that DEQ

intends to define a Class I violation. This should be Class I only if the violation

could cause a great likelihood of actual or potential environmental harm. (AOI)

Response: Most environmental laws are primarily implemented through various

self-monitoring and reporting requirements. Therefore, a fundamental necessity

is that the information reported to the Department be truthful and accurate. This

rule makes an inaccuracy a Class I only if it masks a violation, causes

environmental harm or causes the Department to misinterpret a substantive fact.

Attachment B 9

January 17, 2006

00074
While most typographical errors would not meet this standard, some might. Some

examples might include an error in a hazardous waste code on a hazardous waste

manifest which obscures the hazards associated with the waste and directs the

waste to be improperly treated; or the omission of an integer from a number in a

monitoring report that leads the Department to believe a permittee discharged

only one tenth the actual discharge.

OAR 340-012-0053(1)(d)

Existing rule proposed to be deleted: The Department proposed deleting the

Class I violation for "Any otherwise unclassified violation that causes a

significant adverse impact on human health or the environment, or poses a

significant threat to human health or the environment."

Comment 1: A large number of the existing rules are being deleted and a lot of

them are not recreated elsewhere. The explanation for most of the deletions is

because they are rarely cited. One such deleted rule is the Class I listing for

violations that have an adverse effect on human health. The enforcement rules

should retain enforcement when a violation impacts human health. If violations

are "rarely cited" it is because the Department lacks funds to assess the impact of

the violation and the violation should be retained in case the Department receives

funds to do that evaluation. (Conde Cox)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for any violation. The Division 12 rules

merely create the mechanism and formula for how a penalty is to be calculated

once a violation is found. The Department proposed deleting the Class I listing

for violations not otherwise classified that have an adverse effect on human health

as not necessary for two reasons. First, a violation's effect on human health is a

factor in determining magnitude and would be duplicative if it remained a factor

in determining class. Second, during the rulemaking process, the Department

evaluated whether violations met the Class I criteria. Those violations leading to

adverse effects on human health were specifically listed in the program

classifications. So a default classification for those violations is duplicative.

Comment 2: We are greatly concerned that violations that pose significant

adverse impacts to human health and the environment are no longer enforced in

the rules. The purpose of many federal environmental statutes that use this

language is to signify that there will be protection for human health and the

environment. By deleting this language, the Department will put Oregon out of

compliance as an authorized state because we will not meet the federal statutory

requirements. (Jared Kahn and Sarah Melton)

Response: These rules would not change any substantive compliance obligations

of the regulated community nor reduce the Department's authority or ability to

Attachment B 10

January 17, 2006
Attachment 7.2, pg. 11

enforce or assess penalties for these violations. EPA has been fully involved in

this rulemaking, and has not notified the Department of any concern that

eliminating OAR 340-012-0053(1)(d), or any other classification, jeopardizes

delegation. Human health and the environment are protected because important

violations likely to result in adverse impact are classified in the program-specific

sections of the rules.

OAR 340-012-0053(2)

Existing rule for which no change is proposed: "Any otherwise unclassified

violation" is a Class II violation.

Comment 1: Class II violations occupy the mid-range of severity between Class I

and Class III offenses. Class II violations thus pose a moderate-not maximum

or minimum-risk of harm to human health or the environment. Under DEQ's

proposal, the universe of Class II violations will increase greatly in comparison to

the number of Class I and particularly Class III offenses. DEQ's approach throws

into question the validity and utility of classifying regulatory violations under the

present three-tier system. (Oregon Metals)

Response: In working with external and internal advisory groups, the Department

reviewed the various violations individually and compared them between

programs. The Department believes the violations are properly classified

according to their importance and the likelihood they would be cited. The

Department does not agree with commentor's implied conclusion that each tier

must have similar numbers of violations to be valid.

Comment 2: Rarely cited violations should default to Class III, not Class II,

unless DEQ makes a finding that a particular "rarely cited" violation poses a

moderate risk of potential harm to human health, the environment, or a regulatory

program (which would be Class II). Because the potential stigma and harm to

business reputation will typically be greater with a Class II offense than a Class

III offense, Class II violations should be restricted to those violations which pose

a demonstrably moderate risk of potential harm to health, the environment, or

DEQ regulatory programs. (Oregon Metals)

Response: During the rulemaking process, the Department evaluated whether

these violations met the Class I or Class III criteria. Even "rarely cited" violations

are specifically classified by the programs as Class I or Class II if applicable. All

remaining violations are Class II, and if rarely cited are grouped under the Class II

default violation. The Department believes its strategy is appropriate.

OAR 340-012-0053(3)

Existing rule proposed to be deleted: The Department is proposing to delete the

Class III violation for "Any otherwise unclassified violation that had no more than

Attachment B 11

January 17, 2006

00076
Attachment 7.2, pg. 12 r

a de minimis adverse impact on human health or the environment, and posed no

more than a de minimis threat to human health or the environment."

Comment I: The Class III umbrella was agreed to during Phase I of the

rulemaking. It has only been in effect since June, 2005. Out of fairness, this

Class III umbrella should be reinstated. (ACWA)

Response: Initially, this Phase II rulemaking was to be part of a single

rulemaking covering all aspects of the Division 12 rules. However, commentors

at that time were concerned about the complexity of the rules, including doublecounting the facts of a violation by including some elements of magnitude in

classifying a violation. The Department clearly stated in the Phase I response to

comments that it would be doing a comprehensive analysis of the whole

classification and magnitude approach and that changes could occur. The

proposed rules are the result of that review in which the Department determined

that consistency could be best maintained by eliminating magnitude language

from the classifications where possible. Because this Class III umbrella requires

the Department to make case-specific findings about the environmental harm

resulting from the violation to determine the class, the Department is proposing to

delete it. Specific environmental harm will be considered in determining the

magnitude of the violation and will be minor magnitude if the violation results in

only de minimis impact. In addition, a Class III umbrella classification, such as

the existing rule, effectively adds magnitude language into all unlisted violations,

including those listed as Class II because it would allow respondents cited with a

default Class II to argue that their violation . should be reclassified as Class III

unless the Department could show that their particular violation had more than de

minimis effect. Ironically this would create a hurdle for the Department in

enforcing the less significant Class II violations because evidence of damages is

often not available for many of these moderately-important violations, even

though the violation clearly occurred.

Comment 2: The proposed rules create too few Class III violations compared to

the number of Class II violations. Under -0053(2), otherwise unclassified

violations are Class II no matter how small the likelihood of impact to human

health or the environment or how small the significance to the regulatory

structure. With the recent increase in the civil penalty matrices it is not necessary

to sweep every minor violation into the Class II category. (AOI, City of

Corvallis)

Response: During the rulemaking process, the Department evaluated the Class III

violations to determine whether they were commonly cited by the Department and

whether they would have a de minimis impact to human health or the

environment. "Rarely or never cited violations" meeting the Class III criteria

were proposed as Class III violations in the program-specific sections of the rules.

Rarely or never cited violations that did not meet the criteria became Class II

"otherwise classified" violations under OAR 340-012-0053(2)(a). Also, see

response to comment 2 regarding OAR 340-012-0053(2) above.

Attachment B 12

January 17, 2006

00077
Attachment 7.2, pg. 13

OAR 340-012-0053

Comment: A new rule should be added to give a respondent the opportunity and

burden to prove that another classification applies and is more probable than the

alleged and presumed classification, For purposes of proof:

-

Class I violations are those that can cause a great likelihood of actual or

potential impact to human health or the environment or can have a great

significance to the regulatory structure of the given environmental

program;

Class II violations are violations that can cause a likelihood of actual or

potential impact to human health or the environment less than Class I

violations and greater than Class III violations; and

- Class III violations are violations that can cause a de minimis likelihood of

actual or potential impact to human health and the environment. (AOI)

Response: Our intent in this rulemaking was to create classes which are based on

the probability of significant, direct harm to public health or the environment or

the significance to the regulatory structure of the given environmental program -

and which do not rely on the actual results or the particular facts of any given

case. Potential violations were distributed into classes after thorough review by

the Department and the external rulemaking advisory group, and the proposed

classifications are subject to public notice and comment in a formal rulemaking.

The Department believes this approach is beneficial to providing clarity and

certainty around which violation will be cited as Class I, II or III violations. The

rules allow respondents to argue whether the violation occurred and how the

factual circumstances would influence the magnitude and other parts of the

penalty calculation.

Air Quality Classification of Violations -

OAR 340-012-0054(1)(b)

Proposed rule: "Operating a major source, as defined in OAR 340-200-0020,

without first obtaining the required permit" is proposed as a Class I violation.

Comment: Delete this violation. DEQ inappropriately defines operating a "major

source" without first obtaining the required permit as a Class I violation. This

classification makes absolutely no sense. DEQ justified adding this classification

because it splits "operation of a major source" from "construction of a PSDINSR

source." There is already a Class I violation identified for sources that trigger

NSR or PSD and construct or modify without obtaining the necessary permit and

a Class II violation for sources that fail to obtain an ACDP prior to operating.

This classification seems to be aimed at Title V major sources (although the

definition of "major source" is much broader). However, under Title V a new

Attachment B 13

January 17, 2006

00078
Attachment 7.2, pg. 14

source does not even need to apply for a Title V permit for a year after

commencement of operation. (NWPP)

Response: The Department is proposing to retain this Class I violation because it

believes there are situations that this classification would address which are not

addressed by the other Class I violations. For example, an air contaminant source

could have a "synthetic minor" limit of 24 tons per year (tpy) of combined

hazardous air pollutants (HAPs) with the only limit being the Plant Site Emissions

Limit (PSEL). Without having to construct or modify, most sources with this limit

could easily emit well over 25 tpy of HAPs. Without this specific classification

for "operating" a source, the violation would not be classified and default to the

Class II "otherwise unclassified" violation (OAR 340-012-0053(2)(a)). Similarly

a volatile organic compound (VOC) source with a Netting Basis of 120 tpy and a

PSEL of 99 tpy could, without modification (and without triggering NSR) violate

that limit and operate at 120 tpy and again would default to the Class II

"otherwise unclassified" violation (OAR 340-01.2-0053(2)(a)).

OAR 340-012-0054(1)(f)

Existing rule proposed to be deleted: "Exceeding. an opacity or criteria pollutant

emission limitation in a permit, rule, or order by a factor of great than or equal to

two times the limitation."

Comment: Should there be a percentage opacity level established for violations

so that the DEQ can specifically know when there is a violation? Otherwise, how

will the DEQ know that there is a violation, and on what grounds will the

violation be established? (Jared Kahn and Sarah Melton)

Response:. The Division 12 rules do not establish when an opacity violation

occurs, rather multiple air-quality program regulations establish opacity limits

based on the type of emissions unit, the location of the emissions unit and when,

the emissions unit was placed in service. An opacity violation takes place when

the lowest opacity limit that is applicable to a specific emissions unit is exceeded.

These opacity limit violations will be retained as Class I or II violations

depending on the specific facts of the case. A violation of an opacity standard

established pursuant to New Source Review/Prevention of Significant

Deterioration or Western Backstop S02 Trading Program will fall under OAR

340-012-0054(1)(g). All other opacity limit violations will fall under OAR 340-

012-0054(2)(d). The proposed magnitudes for these violations consider the

specific opacity exceedance. See OAR 340-012-0135(1)(a).

OAR 340-012-0054(1)(g)

Proposed rule: "Exceeding an opacity or emission limit (including a grain

loading standard), or violating an operational or process standard that was

established pursuant to New Source Review/Prevention of Significant

Attachment B 14

January 17, 2006

00079
Attachment 7.2, pg. 15

Deterioration (NSR/PSD), or the Western Backstop S02 Trading Program" is

proposed as a Class I violation.

Comment: All opacity violations should be Class II and the different levels of

exceedance addressed through the magnitude determination. Opacity is not a

standard that is firmly rooted in protection of human health and the environment.

It is a standard relating to visual impacts. Opacity is not on the same scale of

violations as building without a NSR permit or failing to install control equipment

required by federal standards. Treating a 5% opacity exceedance as a Class I

violation is, frankly, absurd regardless of how the magnitude reduces the penalty.

Opacity does not correlate with significant risk to human health or the

environment. In Portland AQMA, a violation could consist of only 30 seconds in

an hour of 20% opacity. A 5% opacity exceedance is a Class III minor violation

($750) under the current rules, but is a Class I minor ($2000) under the proposed

rules. This is important both in terms of the present enforcement action as well as

the aggravation factor treatment of prior Class I violations. (NWPP and Boise)

Response: This classification only pertains to an opacity standard violation that

is established pursuant to NSRIPSD or Western Backstop S02 Trading Program.

The Department agrees that general opacity standards such as those cited by

commentor should be Class II violations and that change has been made. The

Department also believes that using opacity as a standard under NSRIPSD or the

S02 Trading Program will be rare, but in those cases when opacity is used as a

standard it is directly linked to protection of human health and the environment.

This is because under these programs, a surrogate requirement like opacity would

replace measurements of mass emissions and would be created to protect against

violations of the National Ambient Air Quality Standards used to protect public

health and the environment. The Department therefore proposes adopting this

Class I violation. Also, see response to comment regarding OAR 340-012-

0054(1)(i) below.

OAR 340-012-0054(1)(i)

Proposed rule: "Exceeding an opacity limit by a federal major source, as defined

in OAR 340-200-0020" is proposed as a Class I violation.

Comment: Even if it were appropriate to classify opacity exceedances as Class I

violations, there is no need to have both (1)(g) and this provision. Also, it makes

no sense to classify the penalty based on whether the facility has greater than

100/250 tpy of potential emissions when the federal major source classification

may relate to gaseous emissions, not particulate. The Department should delete

this violation. (NWPP)

Response: Commentor makes a valid point when stating that a source may be a

federal major source for gaseous rather than particulate emissions. The

Department agrees that opacity violations that do not rise to the level of a High

Attachment B 15

January 17, 2006

00080
Attachment 7.2, pg. 16 _

Priority Violation under U.S. EPA policy typically should not be considered a

significant violation. Therefore, the Department will withdraw this proposed rule.

However, opacity violations by a federal major source will fall under OAR 340-

012-0054(1)(g) if the opacity limit was established pursuant to NSRIPSD or

Western Backstop SO2 Trading Program. All other opacity limit violations will

be addressed under OAR 340-012-0054(2)(d). The Department believes that a

high priority opacity violation by a federal major source should be major

magnitude and will propose amending the selected. magnitude for this violation at

OAR 340-012-0135(1)(a)(A) to include the following language: "or an opacity

violation by a federal major source as defined in OAR 340-200-0020."

OAR 340-012-0054(1)(k)

Proposed rule: "Failure to perform testing, or monitoring, required by a permit,

rule or order, that results in failure to show compliance with an emission

limitation or a performance standard" is proposed as a Class 1 violation.

Comment 1: The Title V program imposes comprehensive monitoring that

requires facilities to collect hundreds of individual data points per day in order to

demonstrate compliance on a daily and sometimes hourly basis. The failure of a

source to perform a Method 22 visual emissions survey on a bag house on a single

day means that the source cannot demonstrate compliance with the opacity

standard for that day. This is more akin to a paperwork violation and should be

classified as Class II violation. (NWPP)

Response: Self testing, self monitoring and self certification are the cornerstones

of the Title V permit program. Absent that self monitoring, neither the entity nor

the Department can properly assess whether the facility was in compliance. The

Department disagrees that failing to perform testing or monitoring would

appropriately be a Class Ii violation in all cases. Monitoring that is directly tied

to a significant program objective and/or federal mandate rises to the level of a

Class I violation. Using the commentor's example, if an entity misses a method

22 VE survey on a baghouse on one day, but surveys conducted the day before

and the day after show the baghouse was in compliance., absent other factors, the

Department agrees that compliance in the intervening day was probably assured.

On the other hand, if monitoring was missed for an entire month and when the

survey was performed it demonstrated non-compliance, the violation would be

significant. Based on this comment, the Department will modify the violation to

narrow its applicability. "Failure to perform testing or monitoring required by a

permit, rule or order that results in failure to show compliance with a PSEL, or an

emissions limitation or performance standard set pursuant to New Source

Review/Prevention of Significant Deterioration (NSR/PSD), National Emission

Standards for Hazardous Air Pollutants (NESHAP), New Source Performance

Standards (NSPS), Reasonable Achievable Control Technology (RACT), Best

Achievable Control Technology (BACT), Maximum Achievable Control

Technology (MACT), Typically Achievable Control Technology (TACT), Lowest

Attachment B 16

January 17, 2006

00081
Attachment 7.2, pg. 17

Achievable Emissions Rates (LAER)or adopted pursuant to section 111(d) of the

Federal Clean Air Act" will now fall under the Class I violation.

Comment 2: Neglecting to perform monitoring previously was a Class III

violation where missing data can be reconstructed to show that compliance with

standards, emission limitations, and permit emission limits have not been

violated. DEQ proposes to assign a higher level classification to this violation

which does not appear to merit it, especially when one compares this violation to

other offenses within the same classification. Could reconstructed, exculpatory

data be enough to downgrade a Class I citation? If not, the imposition of a Class I

sanction on a permit holder in this situation would be highly unfair, as it would

elevate a failure to monitor, even with reconstruction data available, to be on par

with operating a major source of air pollution without a permit. The Department

needs to provide clarification on this point. An unwarranted Class I may cause

potential stigma and harm to a business' reputation, (Oregon Metals)

Response: The Department agrees with commentor that if the missing data can be

reconstructed to show compliance, the violation should fall under the Class III

category. The Department will not delete the existing Class III violation (OAR

340-012-0054(3)(a)). Monitoring that is directly tied.to significant program

objectives and/or a federal mandate rise to the level of a Class I violation and will

fall under OAR 340-012-0054(1)(h) as explained in the Department's response to

comment 1 above. All other monitoring violations will be covered under the

Class II "otherwise unclassified" violation, OAR 340-012-0053(2)(a).

OAR 340-012-0054(1)(1)

Proposed rule: "Failure to timely submit a Title V semi-annual Compliance

Certification or Oregon Title V Annual Operating Report containing a semiannual compliance certification" was proposed as a Class I violation.

Comment: Remove the word "timely" and classify this violation as Class II. The

addition of the word "timely" appears to be intended to ensure that no matter how

de minimis the late submittal is, it must be considered a Class I violation.

Without the word timely, a source that failed to submit a certification could be

treated differently than one who submitted the certification late. Second, we do

not believe that late paperwork which is rarely reviewed by DEQ immediately

upon submittal should be classified as a Class I violation. Late paperwork is

appropriate as a Class II violation. (NWPP)

Response: The Department agrees to withdraw this violation as a Class I

violation. During the rulemaking process, the rulemaking team evaluated the

cross program consistency in classifying reporting violations and developed the

Attachment B 17

January 17, 2006

00082
Attachment 7.2, pg. 18

following approach: (1) failure to collect and analyze data if the information

cannot be reconstructed; and reporting violations that mask another violation

would be Class I violations, (2) failing to timely submit a report would be Class H

violations, and (3) failing to submit a complete report or failing to submit data

when other data shows compliance would be Class IH violations. The

Department distinguished between failing to conduct the monitoring, which is a

Class I violation if the monitoring is tied to significant program objectives and/or

a federal mandate (OAR 340-012-0054(1)(k)) and the late submittal of the

certification or report. Based on this approach, the Department will propose that

that the late submittal of Title V semi-annual compliance certification will be

Class II violation under OAR 340-012-053(2)(m), which states "Failure to timely

submit a certification, report, or plan as required by rule, permit, or order, unless

otherwise classified." To be consistent with this approach, the Department will

also propose to move the following Class I violations regarding the failure to

timely submit an annual report to Class II: hazardous waste OAR 340-012-

0068(1)(p) will be proposed as OAR 340-012-0068(2)(t) and dry cleaning OAR

340-012-0097(1)(a) will now be proposed as OAR 340-0.12-0097(2)(h).

OAR 340-012-0054(1)(1)

Existing rule proposed to be deleted: "Submitting a report, semi-annual

Compliance Certification or Oregon Title V Annual Operating Report that does

not accurately reflect the monitoring, record keeping or other documentation held

or performed by the permittee" is a Class I violation.

Comment: Why isn't the Department counting as a violation the failure to submit

a monitoring report? (Jared Kahn and Sarah Melton)

Response: Failing to submit a monitoring report remains a violation subject to

enforcement and penalties. The proposed rules would not change any substantive

compliance obligations of the regulated community nor reduce the Department's

authority or ability to enforce or assess penalties for this violation. Depending on

the facts of the case, a violation that previously fell under this classification will

now be covered under proposed OAR 340-012-0053(l)(b) if the facility submits

"false, inaccurate, or incomplete information that masked another violation,

causes environmental harm or causes the department to misinterpret any

substantive fact." Otherwise, the violation will fall under OAR 340-012-

0054(2)(b), which covers all other permit violations. See also response to

comment regarding proposed OAR 340-012-0054(1)(1) above.

OAR 340-012-0054(1)(m)

Proposed Rule: "Failure to file a timely application or renewal application for an

Oregon Title V Operating Permit pursuant to OAR 340 division 218" is proposed

as a Class I violation.

Attachment B 18

January 17, 2006

00083
Attachment 7.2, pg. 19

Comment: Late paperwork-particularly paperwork that must be submitted a

year in advance-should not be classified as a Class I violation. Late paperwork

is appropriate as a Class II violation. There are significant consequences from

having a late permit application or renewal application. A source submitting a

late application (renewal or otherwise) loses the permit shield. There is no need

to also penalize such a source with a Class I violation. (NWPP)

Response: The Department agrees that the permit holder may face severe

consequences by filing a late permit application, including the possible need to

shut the facility down and loss of the permit shield. The Department agrees to

make the failure to submit the application a Class II violation. The Department

will propose "Failure to timely submit a permit application or permit renewal

application" as a Class H violation (OAR 340-012-0054(2)(n)). In cases where the

source does not obtain the Title V permit, the operation of a major source without

obtaining a permit would be a Class I violation pursuant to OAR 340-012-

0054(l)(b).

OAR 340-012-0054(1)(m)

Existing rule proposed to be deleted: "Causing emissions that are a hazard to

public safety"

Comment: If there is no enforcement to prevent the release of emissions that are

hazardous to public safety, what deterrence will there be to ensure that these types

of releases do not occur? (Jared Kahn and Sarah Melton)

Response: The Department agrees to propose retaining this classification. This

violation was previously added to Division 12 to cover the unusual circumstance

where a field burning resulted in a safety hazard. The Department no longer

enforces field burning regulations; instead those rules are enforced by the

Department of Agriculture. Because the Department typically enforces public

health laws rather than public safety, it proposed to eliminate this classification.

However, the Department regulates open burning that creates a nuisance or a

hazard to public safety. OAR 340-264-0060(2) states: "No person may cause or

allow to be initiated or maintained any open burning that creates a nuisance or a

hazard to public safety." The lawful open burning that creates a hazard to public

safety should appropriately be a Class I violation, otherwise it would fall under

the Class II "otherwise unclassified" violation (OAR 340-012-0053(2)(a)).

Therefore, the Department will withdraw its proposal to delete existing rule OAR

340-012-0054(1)(m).

Attachment B 19

January 17, 2006

00084
Attachment 7.2, pg. 20

OAR 340-012-0054(2)(a)

Existing rule proposed to be deleted: "Unless otherwise classified, exceeding

an emission limitation, other than an annual emission limitation, or exceeding an

opacity limitation by more than five percent opacity in permits, rules or order."

Comment: What is the purpose of removing this rule? Ensuring specific

percentage opacity is essential to protect human health and the environment, as

well as for the DEQ to know when a violation has specifically occurred. Now

there is nothing specific in the Class II that specifies when there is a violation

according to a specific opacity standard. (Jared Kahn and Sarah Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. These opacity limit

violations will be retained as Class I or II violations depending on the specific

facts of the case, but not on the percentage of the exceedance, which will be

considered in determining the magnitude of the violation. A violation of an

opacity standard established pursuant to New Source Review/Prevention of

Significant Deterioration or Western Backstop S02 Trading Program will fall

under the Class I violation, OAR 340-012-0054(1)(g). All other opacity limit

violations will fall under the Class II violation, OAR 340-012-0054(2)(d), See

also response to comment regarding OAR 340-012-0054(1)(g) and (1)(i) above.

OAR 340-012-0054(2)(s).

Existing rule proposed to be deleted: "Installing, servicing, repairing, disposing

of or otherwise treating automobile air conditioners without recovering and

recycling chlorofluorocarbons using approved recovery and recycling

equipment."

Comment: What is the purpose of removing this rule? Without this rule, will

there be sufficient deterrence to ensure that chlorofluorocarbons will be properly

recovered and recycled to-protect-human health-and-the environment? (JaredKahn and Sarah Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. This violation was not

regularly cited by the Department so violations that previously fell under this

classification will now be covered under the "otherwise unclassified" violation

(OAR 340-012-0053(2)(a)).

OAR 340-012-0054(3)(a)

Attachment B 20

January 17, 2006

00085
Attachment 7.2, pg. 21

Existing rule proposed to be deleted: "Failure to perform testing, or monitoring

required by a permit, rule or order where missing data can be reconstructed to

show compliance with standards, emission limitations or underlying

requirements."

Comment: Neglecting to perform monitoring previously was a Class III violation

where missing data can be reconstructed to show that compliance with standards,

emission limitations, and permit emission limits have not been violated. (Oregon

Metals)

Response: For reasons stated in response to comment 2 regarding OAR 340-

012-0054(1)(k) above, the Department is withdrawing its proposal to delete this

rule.

OAR 340-012-0054(3)(f)

Existing rule proposed to be deleted: "Exceeding opacity limitation in permits

or rules by five percent opacity or less."

Comment: Should there be a specific opacity level for the DEQ to know when

there is a violation? Without such a specific opacity level, what will be the

standards for opacity level violations? (Jared Kahn and Sarah Melton)

Response: The Department's air quality rules determine when an opacity

violation occurs. The proposed rules would not change any substantive

compliance obligations of the regulated community nor reduce the Department's

authority or ability to enforce or assess penalties for this violation. These opacity

limit violations will be retained as Class I or II violations depending on the

specific facts of the case, but not on the percentage of the exceedance, which will

be considered in the determining the magnitude of the violation. A violation of an

opacity standard established pursuant to New Source Review, Prevention of

Significant Deterioration or Western Backstop S02 Trading Program will fall

under the Class I violation, OAR 340-012-0054(l)(g). All other opacity limit

violations will fall under the Class II violation, OAR 340-012-0054(2)(d). See

also response to comments regarding OAR 340-012-0054(1)(g), (1)(i) and (2)(a)

above.

Water Quality Classification of Violations --

OAR 340-012-0055(1)(a) and •0055(1)(b)

Existing rules for which no changes are proposed: "(a) Causing pollution of

waters of the state" and "(b) Reducing the water quality of waters of the state

below water quality standards" are Class I violations.

Attachment B 21

January 17, 2006

00086
Comment: What is the difference between the OAR 340-0.12-0055(1)(a), causing

pollution of waters of the state, and OAR 340-012-0055(1)(b), reducing the water

quality of waters of the state below water quality standards? They appear to be the

same. Clarification is needed. (City of Corvallis)

Response: "Causing pollution of waters of the state" is a statutory violation

(ORS 468B.025(1)(a)) that contains a broad definition of polluting waters of the

state. Violations that typically fall under this classification are those that result in

a discharge to waters of the state that impairs beneficial uses. For example, a

permitted treatment plant looses chlorination in its final polishing step and

discharges partially-treated sewage effluent. The discharge of sewage would

cause pollution prohibited by ORS 468B.025(1)(a) which is a Class I violation

under OAR 340-012-0055(1)(a). But the discharge may or may not violate water

quality standards. "Reducing the water quality of waters of the state below water

quality standards" is a separate statutory violation (ORS 468B.025(1)(b)) that

specifically captures violations of water quality standards adopted by the

Environmental Quality Commission. Violations that typically fall under this

classification result from a discharge to waters of the state that impairs beneficial

uses and the Department has narrative or numeric evidence to prove a violation of

a water quality standard. For example, after the permitted treatment plant

discharged the partially treated sewage effluent, samples may or may not show

that the discharge violated the water quality standards. If so, the plant would have

violated 468B.025(l)(b) which would be a separate Class I violation under OAR

340-012-0055(1)(b).

OAR 340-012-0055(1)(d)

Proposed rule: "Operating a discharge source or conducting a disposal activity

without first obtaining an individual permit or registering for a general permit that

covers that discharge or disposal activity" was proposed as a Class I violation.

Comment: Many municipalities have applied for the applicable Water Pollution

Control Facility permit to cover their UICs, but the Department has not issued the

applicable permit. -Comrnentor proposes that theclassification read "Operating a

discharge source or conducting a disposal activity without first applying for or

obtaining an individual or registering for a general permit that covers that

discharge or disposal activity." (ACWA)

Response: The Department will not make this change because it would exempt

from enforcement new permittees from all permit programs who have submitted

an application to the Department, but who operate a discharge source before

obtaining the permit. The Department makes it a priority to process new permit

applications to minimize delays for new facilities to operate. Permits for existing

facilities remain valid through the renewal process so this issue is not relevant to

them. Also, in instances where a municipality is operating UIC injection wells,

the Department recognizes that the municipality had the system in operation

Attachment B 22

January 17, 2006

00087
Attachment 7.2, pg. 23

before the Department established the UIC regulatory program. Using

enforcement discretion, the Department has refrained from initiating formal

enforcement against those who are operating unpermitted UIC injection wells, but

have applied for the necessary permit. However, the Department does prefer the

way the commentor characterized the coverage under the permit and will modify

the proposed language to read: "Operating a discharge source or conducting a

disposal activity without first obtaining an individual permit or applying for

coverage under a general permit that covers that discharge or disposal activity" is

proposed as a Class I violation."

OAR 340-012-0055(1)(e)

Existing rule proposed to be deleted: "Violation of a permit compliance

schedule."

Comment: If it is not a violation to violate a permit compliance schedule, does

this not then open the door to allow people to violate compliance schedules?

Where is the deterrence to ensure that people will comply with the compliance

schedules? (Jared Kahn and Sarah Melton)

Response: Violating a permit compliance schedule remains a violation subject to

formal enforcement as a Class I violation. The Department is proposing a Class I

"umbrella" violation for permit compliance schedule violations that applies to all

programs, OAR 340-012-0053(1)(a). Having this violation listed once in section

-0053 streamlines the rules rather than listing this violation in each of the

program-specific sections of the rules. Water Quality permit compliance schedule

violations that previously fell under this classification will now be covered under

this Class 1 "umbrella" violation (OAR 340-012-0053(1)(a)).

OAR 340-012-0055(1)(g)

Existing rule for which no change is proposed: "Operation of a disposal system

without first obtaining a Water Pollution Control Facility Permit (WPCF)"

Comment: Why eliminate the rule for a violation for not obtaining a disposal

system WPCF permit? Does this then open the door to allow a disposal system to

not be required to obtain a WPCF permit? Or, will it simply not be something the

DEQ will enforce? (Jared Kahn and Sarah Melton)

Response: The Department streamlined the rules, and the violations that the

commentor is concerned about will now be covered under OAR 340-012-

0055(1)(d), which applies to sources that operate a discharge source or conduct a

disposal activity without first obtaining an individual permit or registering for a

general permit.

OAR 340-012-0055(1)(h)

Attachment B 23

January 17, 2006
Attachment 7.2, pg. 24

Existing rule proposed to be deleted: "Failure of any ship carrying oil to have

financial assurance as required in ORS 468B.300 - 468B.335 or rules adopted

there under."

Comment: Removing this rule to enforce ships that carry oil to have financial

assurance does not provide adequate assurance that the ships will not escape

financial liability. What was, the purpose of removing this rule? (Jared Kahn

and Sarah Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. The Department

streamlined the rules and the violations that previously fell under this

classification will now be covered under OAR 340-012-0082(l)(f), which applies

to ships that fail to establish and maintain financial assurance.

OAR 340-012-0055(1)(k)

Proposed rule: The following is proposed as a Class I violation: "Violating a

technology based effluent limitation, except for removal efficiency, in an NPDES

or WPCF permit if:

(A) the discharge level (except for pH and bacteria) exceeds the limitation by

50 percent or more,

(B) the discharge is more than 2 pH units outside the permitted pH range,

(C) the discharge exceeds a bacteria limit as a result of an inoperative

disinfection system that results in no disinfection at all, or

(D) the discharge of reclaimed water exceeds the bacteria limit by more than

five times the limit"

Comment 1: The Department should include a graduated scale for these

violations. As permit limits become lower, the frequency of exceeding the limit

by 50% will increase without significant harm to the environment. A graduated

system, in which the classification is based in part on the level of the limit ; would

give the Department greater flexibility to respond to more stringent permit limits

over time. (ACWA and City of Corvallis)

Response: Previously, the Department treated all technology based effluent

limitation (TBEL) violations as Class II violations regardless of the violation's

potential to harm public health or the environment. However, all TBEL violations

do not have the same adverse impact. The proposed language recognizes that

some violations are more significant than others and that some violations are less

significant than others. The Department developed these violations in this manner

to classify those TBEL violations which pose a greater potential threat to public

health and the environmental as Class I violations, those which pose a moderate

00089

Attachment B 24

January 17, 2006
Attachment 7.2, pg. 25

threat as Class H violations, and those which pose a low threat to Class III

violations.

The Department developed these classifications based on the following rationales.

First, if a facility exceeds its technology based limitation by 50% or more, it has a

greater potential to harm the public health and the environment than a facility

which has exceeded its limitations by less than 50%. Second, technology based

limits are based on the ability of the treatment processes utilized in the categorical

sector to treat waste. Consequently, the proper operation of that treatment

technology is essential in order to meet the technology based limits. If the

treatment system cannot be properly operated so that it does not exceed a

technology based standard by 50% or more, then the proposed violation would be

a Class I violation.

The Department disagrees with commentor's suggestions to use a graduated scale

in determining the classification of the violation. Lower technology based limits

reflect both the need to control the specific wastes to lower limits as well as a

treatment system's ability to achieve lower limits. It cannot be assumed that less

harm comes from violating lower limits because different parameters have

different impacts to beneficial uses. It is important for a source to achieve these

limits. However, the Division 12 rules do not require that the Department initiate

enforcement against any particular violation or violator. Regardless of whether

the TBEL limits are lowered in the future, the Department will exercise its

enforcement discretion in deciding whether to initiate formal enforcement.

Agency decisions about applying enforcement discretion may be incorporated

into future versions of the internal management directive known as the

enforcement guidance.

Comment 2: The Department proposes to increase certain violations of

Technology Based Effluent Limits (TBELs) from a Class II violation to a Class I

violation. There is no basis to assume that a violation of a TBEL will have

significant direct harm to public health or the environment. These violations

should remain Class II violations. TBELs have no relationship to beneficial uses

or probability of harm and are established purely based on what the control

technology can do. Classifying these violations as Class II would not be

inconsistent with other classifications. (NWPP)

Response: The Department is proposing to divide TBEL violations into three

classes. The purpose is to recognize that not all TBEL violations would have the

same potential to harm public health and the environment. It also recognizes that

it is essential to operate treatment facilities properly. Those treatment systems

that operate better than others, but still have minor exceedances of their

technology based effluent limitations, should not be in the same classification as

treatment systems that operate poorly resulting in much larger technology based

effluent limitation exceedances. See also response to comment 1 above.

00090

Attachment B 25

January 17, 2006
Attachment 7.2, pg. 26

340-012-0055(1)(l)

Proposed Rule: "Violating a water quality based effluent limitation in an NPDES

permit" is proposed as a Class I violation.

Comment 1: This should be a Class II violation. Water quality based effluent

limits are extremely conservative and there is no direct relationship between an

exceedance and significant direct harm to beneficial uses. The probability is very

low that the typical exceedance of a WQBEL will cause the stream to exceed

water quality standards. If a source causes a water quality standard violation,

there is already a Class I violation that addresses that situation (340-012-

0055(1)(b)). Exceeding a WQBEL without a water quality standard violation

should not also be a Class I violation. (NWPP)

Response: The Department disagrees with commentor's suggestion that

exceeding WQBELs without a water quality standards violation should not be a

Class I violation. The Department establishes WQBELs in permits in response to

the following situations: (1) a receiving stream exceeds water quality standards

and the specific effluent parameter has to be reduced so that water quality

standards can be achieved, or (2) the Department has performed a reasonable

potential analysis and there is a potential for the discharge to violate water quality

standards. Consequently, where WQBELs are established there is a greater

likelihood that the receiving stream will, in fact, violate water quality standards if

the effluent limitation is exceeded, even though the effluent limit has been

established based on conservative assumptions. A WQBEL is an end-of-the-pipe

effluent limit whereas water quality standards are measured in the receiving

stream. Most permittees are not required to collect receiving stream water quality

data so the Department relies on compliance with the WQBELs to protect the

receiving stream.

OAR 340-012-0055(2)(a)(A)

Proposed new rule: "Violating a technology based effluent limitation, except for

removal efficiency, in an NPDES or WPCF permit if: (A) the dischargelevel

(except for pH and bacteria) exceeds the limitation by 10 % or more but less than

50% or [sic] by 20% but less than 50% for biochemical oxygen demand (BOD),

carbonaceous chemical oxygen demand (CBOD), and total suspended solids

(TSS), or by 10% or more but less than 50% for all other limitations i" is proposed

as a Class II violation.

Comment: Why change the 10% level to 20%? Doesn't this make it more lenient

for discharge levels? How does this ensure adequate protection of human health

and the environment? (Jared Kahn and Sarah Melton)

Response: The level is not being changed. This is a newly proposed violation.

Comrnentor identified a typographical error in the proposed rules. The proposed

00091

Attachment B 26

January 17, 2006
Attachment 7.2, pg. 27

new rule at OAR 340-012-0055(2)(a)(A) should have read: "Violating a

technology based effluent limitation, except for removal efficiency, in an NPDES

or WPCF permit if: (A) the discharge level (except for pH and bacteria) exceeds

the limitation by 20% or more but less than 50% for biochemical oxygen demand

(BOD), carbonaceous chemical oxygen demand (CBOD), and total suspended

solids (TSS), or by 10% or more but less than 50% for all other limitations."

Thank you for catching this error,

OAR 340-012-0055(2)(b)

Proposed Rule: "Failure to timely submit a report or plan as required by rule,

permit, order, or license unless otherwise classified" is proposed as a Class II

violation.

Comment: This violation has long been a Class III violation and should remain

so. These reports are required to be submitted frequently and an occasional late

report does not have any material impact on the environment or the permitting

program. They are typically not reviewed (if ever reviewed) until months after

submittal: (NWPP and Boise)

Response: First, during the rulemaking process, the rulemaking team evaluated

the cross program consistency in classifying reporting violations. To treat these

reporting violations similarly across the programs, the following approach was

developed: (1) Failure to collect and analyze data required by a permit would be a

Class I violation and (2) Late submittal of a report would be a Class II violation.

Based on this approach, the Department is proposing to classify this reporting

violation as a Class II violation. Second, the water quality permitting programs

rely on self-monitoring and self-reporting though the Discharge Monitoring

Report (DMR). Completing these reports and following up on problems is an

essential part of the self-monitoring compliance program independent of when the

Department reviews the data. The lack of sufficient resources in the water quality

program to immediately review the DMRs at the present time should not be taken

as a reflection of the importance of the DMR for documenting a source's

compliance with the requirements in its permit.

OAR 340-012-0055(2)(e)

Proposed rule: "Failure of a total maximum daily load (TMDL) identified

Designated Management Agency (DMA) to implement their TMDL

Implementation Plan as required by department order" is proposed as a Class II

violation.

Comment: Not all Designated Management Agencies (DMAs) will necessarily

be required to develop TMDL Implementation Plans. The Department may

choose to implement TMDLs through existing permits or licenses. (ACWA)

Attachment B 27

January 17, 2006

00092
Attachment 7.2, pg. 28

Response: The language is directed specifically at Designated Management

Agencies that are required under Department order to develop TMDL

implementation plans. If a permittee is required by permit or license to develop a

TMDL implementation plan, the Department would hold the permittee

responsible for failing to comply with their permit or license conditions.

However, the Department will propose clarifying the proposed rule by wording it

as follows: "Failure by a Designated Management Agency (DMA) to implement a

Total . Maximum Daily Load (TMDL) Implementation Plan as required by

department order."

OAR 340-012-0055(3)(a)

Existing rule for which no change is proposed: "Failure to submit a complete

discharge monitoring report" is currently classified as a Class III violation.

Comment: Failure to submit a complete report is more than likely the result of an

oversight, typing error, software error, or misunderstanding of a report

requirement. This type of failure can be handled effectively and more efficiently

without resorting to the enforcement process. (City of Corvallis)

Response: The Department agrees that this is a less significant violation.

Consequently, it was designated a Class III violation to recognize its minor

nature. If the Department did not specifically identify a class for this violation, it

would fall under the Class II "otherwise unclassified" violation (OAR 340-012-

0053 (2)(a)).

OAR 340-012-0055(3)(c)

Existing rule which is proposed to be deleted: "Violation of a removal

efficiency requirement by -a factor of less than or equal to 0.2 times the number

value of the difference between 100 and the applicable removal efficiency

requirement (e.g., if the requirement is 65 percent removal, 0.2 (100-65) = 0.2(35)

= 7 percent; then 7 percent would be the maximum percentage. that would qualify

under this rule for a permit with a 65 percent removal_efficiency requirement)."

Proposed Rule: "Failure to achieve a removal efficiency established in an

NPDES or WPCF permit" is proposed as a Class III violation.

Comment: Will the removal of these specific removal efficiencies adequately

protect human health and the environment? Are the permit efficiencies according

to any form of EPA guidance? Will the permits have any form of consistency, or

will the removal efficiencies established in the permits provide for arbitrary

levels, instead of the specific levels that have now been proposed to be removed?

(Jared Kahn and Sarah Melton)

00093

Attachment B 28

'January 17, 2006
Attachment 7.2, pg. 29

Response: The Department proposed modifying the language of this violation to

clarify that any violation of a removal efficiency is a Class III violation. The

Department retains authority and ability to enforce and assess penalties for

removal efficiency violations. This modification also does not change any

substantive compliance obligations of the regulated community. Questions about

how removal efficiencies are incorporated into permits are outside the scope of

this rulemaking and should be directed to DEQ's Water Quality Program which

oversees the administration of the water quality permitting programs.

OAR 340-012-0055(3)

No existing rule or rule proposed in the notice.

Comment: A Class III, minor magnitude violation for. pretreatment procedural

violations should be added. Because pretreatment program is incorporated into

the Public Own Treatment Work's (POTW) NPDES permit, the approved

pretreatment procedures must be followed. If the approved pretreatment

procedures are not followed, a permit violation has occurred. For example, if the

POTW's enforcement response plan says that a written notice of violation is to be

issued to an industry for a minor non-compliance with a discharge limit, and the

POTW gives the industry a verbal warning instead, then a procedural violation

has occurred. In this example, the industry's non-compliance resulted in no harm

to the POTW and the environment, and was not a threat to public health and

safety. The POTW's violation was strictly a procedural violation. DEQ should

make it clear that this type of violation would be classified as a Class III. (City of

Corvallis)

Response: The Department agrees with the commentor's suggestion and is

proposing a new Class III violation (OAR 340-01.2-0055(3)(e)) which states:

"Failure of a municipal wastewater treatment works owner to follow the owner's

department-approved pretreatment program procedures where such failure did not

result in any harm to the treatment works and was not a threat to the public health

or the environment." Note that the Department also proposed a Class I violation

when a POTW owner fails to take action against an industrial discharger that

results in significant impacts to human health and the environment. (OAR 340-

012-0055(1)(f).

Solid Waste Management Classification of Violations -

OAR 340-012-0065(1)(e)

Existing rule proposed to be deleted: "Violation of the landfill methane gas

concentration standards."

Comment: What was the purpose of removing the violation for landfill methane

gas concentration standards? Should this be replaced with an adequate rule to

Attachment B 29

January 17, 2006

00094
Attachment 7.2, pg. 30

ensure landfill gas methane concentration standards? Will this still be protective

of human health and the environment? (Jared Kahn and Sarah Melton)

Response: Violating landfill methane gas concentration standards remains a

violation. The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. Because these violations

may not result in significant, direct harm, the Department proposed that violations

that previously fell under this classification will now be covered under the Class

H "otherwise unclassified" violation (OAR 340-012-0053(2)(a)).

OAR 340-012-0065(1)(e)

Proposed Rule: "Accepting for treatment, storage, or disposal at a solid waste

disposal site, clean-up materials contaminated by a hazardous substance,

infectious waste, hazardous waste, or waste from another state that is defined as

hazardous under the laws of that state" is proposed as a Class I violation,

Comment: This proposed rule includes two categories of waste -- "clean-up

materials contaminated by a hazardous substance" and "infectious wastes" - that

can be treated stored or disposed at a solid waste disposal site. OAR 340-093-

0170 authorizes "cleanup materials contaminated by hazardous substances" to be

disposed under certain conditions. Similarly, OAR 340-093-0190(1)(d) allows

certain infectious wastes to be disposed under certain conditions. (AOI)

Response: The Department agrees with this comment and will modify the

language. The Department will delete "clean-up materials contaminated by a

hazardous substance" and "infectious waste." Infectious wastes and clean-up

materials that are contaminated with hazardous substances are allowed to go to a

solid waste disposal site, if they have a special waste management plan in place.

If infectious waste and clean-up materials are received or managed either without

a special waste management plan or in violation of a plan, the violation will fall

under OAR 340-012-0065(2)(e), which covers disposal sites that accept or

manage waste without a required special waste management plan or in violation

of their plan. The Department will also add "wastes prohibited from disposal" to

clarify that these wastes fall under this violation. These wastes are listed in OAR

340-093-0040 and include items such as used oil and abandoned vehicles. The

Department will amend the violation to read: "Without approval from the

department, accepting for treatment, storage, or disposal at a solid waste disposal

site, clean up materials contaminated by a hazardous substance, infectious waste,

waste defined as hazardous waste, waste from another state which is that is

defined-as-hazardous under the laws of that state, or wastes prohibited from

disposal by statute, rule, permit or order." (new text underlined and proposed

deleted text in strikeout)

OAR 340-012-0065(1)(f)

00095

Attachment B 30

January 17, 2006
Attachment 7.2, pg. 31 .

Existing rule proposed to be deleted: "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."

Comment: Removing the violations for drinking water standards does not

provide adequate protection for human health and the environment. Without a

rule to enforce adequate protection of drinking water standards, how can the DEQ

and the public be assured that there will be protection of drinking water

standards? Does this comply with federal drinking water statutes? (Jared Kahn

and Sarah Melton)

Response: Violating drinking water standards remains a violation. The proposed

rules would not change any substantive compliance obligations of the regulated

community nor reduce the Department's authority or ability to enforce or assess

penalties for this violation. The violations that previously fell under this

classification will now be covered under the Class II "otherwise unclassified"

violation (OAR 340-012-0053(2)(a)). If a violation results in adverse impacts to

the environment, it will likely be covered under the newly proposed OAR 340-

012-0065(1)(f), which applies to landfills that are improperly constructed,

maintained, or operated.

OAR 340-012-0065(1)(g) through (1)(i)

Existing rules: The following Class I classifications proposed to be deleted:

(g) "Violation of a permit-specific groundwater concentration limit, as

defined in OAR 340-040-0030(3) at the permit specific groundwater

concentration compliance point, as defined in OAR 340-040-0030(2)(e)."

(h) "Failure to perform the groundwater monitoring action requirements

specified in OAR 340-040-0030(5), when a significant increase (for pH,

increase or decrease) in the value of a groundwater monitoring parameter

is detected."

(i) "Impairment of the beneficial use(s) of an aquifer beyond the solid waste

boundary or an alternative boundary specified by the department."

Comment: What rules will be left to protect groundwater from contamination if

there is no deterrence or threat of enforcement violations? If this is removed,

does this violate the State's minimum requirements to adhere to groundwater

protection? (Jared Kahn and Sarah Melton)

Response: The proposed deletion of these rules would not change any substantive

compliance obligations of the regulated community nor reduce the Department's

authority or ability to enforce or assess penalties for these violations. Because

these violations may not result in significant, direct harm, the violations that

previously fell under these violations will now be covered under the Class II

"otherwise unclassified" violation (OAR 340-012-0053{2)(a)).

OAR 340-012-0065(1)(j)

Attachment B 31

January 17, 2006

00096
Attachment 7.2, pg. 32

Existing rule proposed to be deleted: "Deviation from the department approved

facility plans which results in a safety hazard, public health hazard or damage to

the environment."

Comment: Why is it not a violation to threaten the human health or damage the

environment? (Jared Kahn and Sarah Melton)

Response: Violations of facility plans that have a high probability of causing

significant impacts to human health and the environment will be classified under

the newly proposed OAR 340-012-0065(1)(f), which applies to landfills that are

improperly constructed, maintained, or operated. Other violations of facility

plans will be covered under the Class II "otherwise unclassified" violation (OAR

340-012-0053(2)(a) ).

OAR 340-012-0065(1)(m)

Existing rule proposed to he deleted: Violation of a compliance schedule

contained in a solid waste disposal or closure permit

Comment: Without a rule to enforce compliance schedules, will they not just be a

sham? (Jared Kahn and Sarah Melton)

Response: Violating a compliance schedule contained in a solid waste disposal or

closure permit remains a violation and the Department retains authority to enforce

or assess penalties for it. The Department is proposing a Class I "umbrella"

violation for permit compliance schedule violations that applies to ali programs

(OAR 340-012-0053(1)(a)). Solid waste permit compliance schedule violations

that previously fell under the existing classification will now be covered under

this Class I "umbrella" violation (OAR 340-012-0053(1)(a)).

OAR 340-012-0065(1)(n) through (q)

Existing rules proposed to be deleted:

(n) "Knowingly disposing, or accepting for disposal materials prohibited

from disposal at a solid waste disposal site by statute, rule, permit or

order."

(o) "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 340-093-0170(3)."

(p) "Accepting for disposal infectious waste not treated in accordance with

laws and department rules."

Attachment B 32

January 17, 2006

00097
Attachment 7.2, pg. 33

(q) "Accepting for treatment, storage or disposal wastes defined as hazardous,

or wastes from another state which are hazardous under the laws of that

state without approval from the department."

Comment: Why were each of these four rules removed without adequate

replacement to ensure deterrence of such violations with the purpose and intention

to protect human health and the environment? Is this a RCRA violation to not

have adequate enforcement rules dealing with hazardous substances at landfills?

(Jared Kahn and Sarah Melton)

Response: Violations that previously fell under OAR 340-012-0065(1)(n) and (q)

will be covered under the Class I violation, OAR 340-012-0065(1)(e), which

applies to disposal sites that accept hazardous waste or prohibited wastes. See

also response to comment regarding OAR 340-012-0065(1)(e) above. Violations

that previously fell under OAR 340-012-0065(1)(o) and (p) will be covered under

OAR 340-012-0065(2)(e), which applies to disposal sites that accept or manage

waste either without a special waste management plan or in violation of the plan.

The Department believes these reclassifications create appropriate deterrence and

are consistent with the significance of these violations.

Solid Waste Tire Management Classification of Violations -

340-012-0066(2)(a) and (c)

Existing rules proposed to be deleted:

(a) "Failure to submit a permit renewal application prior to the expiration date

of the existing permit within the time required by statute, rule or permit."

(c) "Violation of a condition or term of a Letter Authorization."

Comment: Removal of (2)(a) and (c) and replacement of (2)(a) - Does this new

rule adequately replace all the language utilized in the proposed removed rules?

(Jared Kahn and Sarah Melton)

Response: The violations that previously fell under existing OAR 340-012-

0066(2)(a) and (2)(c) are not being replaced by the newly proposed Class II

violation, OAR 340-012-0066(2)(a). These violations will now be covered under

the Class II "otherwise unclassified" violations at OAR 340-012 .0053(2)(a). The

newly proposed (2)(a) relates to facilities that are required to maintain written

records.

Underground Storage Tank Classification of Violations -

340-012-0067(1)(j)

Attachment B 33

January 17, 2006

00098
Attachment 7.2, pg. 34 _

Proposed Rule: "Failure to conduct testing or monitoring, or to keep records

where the failure constitutes a significant operational compliance violation" is

proposed as a Class I violation.

Comment: Using the term "significant" seems vague and should be clarified to

ensure adequate notice and uniformity of the violation. (Jared Kahn and Sarah

Mellon)

Response: The US EPA developed the term "significant operational compliance"

as a compliance measurement. Whether a facility is in significant operational

compliance is determined through application of a series of matrices that consider

compliance with release prevention and release detection requirements. Through

applying the EPA evaluation matrices, DEQ will determine whether the

noncompliance reaches the higher levels of importance and whether, therefore,

the violation will be classified as Class I.

Hazardous Waste Management and Disposal Classification of

Violations --

OAR 340-012-0068(1)(a)

Existing rule for which no change is proposed: "Failure to make a complete

and accurate hazardous waste determination of a residue as required by OAR 340-

102-0011" is a Class I violation.

Comment: This violation should be moved to Class II. The violation does not

have "high probability of significant direct harm" independent of its illegal

disposal, which is a Class I violation. This is a pure paperwork violation with no

direct impact to the environment. (NWPP)

Response: The requirement that generators determine whether their wastes are

hazardous waste is a critical to the hazardous waste program. Without that

determination, the generator never knows that it is subject to management,

treatment and disposal requirements. This is similar to the Class I violations in

other programs in which an entity operates a pollutant discharge source without

determining its compliance obligations through the permit process.

OAR 340-012-0068(1)(b)

Existing rule proposed to be deleted: "Failure to have a waste analysis plan as

required by 40 CFR 265.13."

Comment: Why remove this enforcement rule? (Jared Kahn and Sarah

Melton)

Attachment B 34

January 17, 2006

00099
Attachment 7.2, pg. 35

Response: Because these violations have a low probability of significant, direct

harm and are rarely cited, the Department believes no specific classification

listing is necessary. Violations that previously fell under this classification will

now be covered under the Class II "otherwise unclassified" violation (OAR 340-

012-0053(2)(a)).

OAR 340-012-0068(1)(b) and -0068(1)(i)

Proposed rules: (b) "Failure to comply with Land Disposal Restriction

requirements when treating hazardous waste" and (i) "Illegal treatment of [sic]

disposal of a hazardous waste by a generator" are both proposed as Class I

violations. (proposed new text underlined).

Comment: The two are duplicative and OAR 340-012-068(l)(b) should be

deleted because it is overbroad. (AOI)

Response: The Department agrees that, in the interest of reducing the number of

listed classifications, these two rules are sufficiently similar to allow their

aggregation. However, the elimination of OAR 340-012-0068(l)(b) would make

illegal treatment by a TSD (treatment, storage, and disposal) facility a Class II

violation unless we also change OAR 340-012-0068(1)(i) to read "Illegal

treatment or disposal of a hazardous waste" by striking the phrase "by a

generator". Therefore we will propose eliminating OAR 340-012-0068(1)(b)

entirely and amending OAR 340-012-0068(1)(i) as described above.

OAR 340-012-0068(1)(d)

Existing rules proposed to be deleted: "Accumulation of hazardous waste on

site for longer than twice the applicable generator allowable onsite accumulation

period" as a Class I violation is proposed to be deleted.

Comment: Without the provision for the length of time, how long will it be until

there is a violation? (Jared Kahn and Sarah Melton)

Response: Under the existing substantive hazardous waste rules, there is a

violation on the day after the lawful accumulation ends. The proposed rules

would not change any substantive compliance obligations of the regulated

community nor reduce the Department's authority or ability to enforce or assess

penalties for this violation. Because the violations have a low probability of

significant, direct harm, the violations that previously fell under this classification

will now be covered under the Class II violation, OAR 340-012-0068(2)(d), if the

waste is accumulated for more than 30 days, or under the Class III violation, OAR

340-012-0068(3)(a), if the waste is accumulated for 30 days or less.

OAR 340-012-0068(1)(e)

Attachment B 35

January 17, 2006

00100
Attachment 7,2, pg. 36

Proposed rule: "Treating, storing or accumulating hazardous waste in a

hazardous waste management unit as defined in 40 CFR 260.10 that does not

meet the unit design or unit integrity assessment criteria for the hazardous waste

management unit" is proposed as a Class I violation.

Comment: This proposed rule would classify any failure to meet design or

integrity assessment criteria for a hazardous waste management unit as a Class I

violation no matter how insignificant the failure or defect is. The concern of this

proposed rule appears to be the integrity of a unit and that should be the legitimate

concern used to classify a violation as a Class I violation. Commentor

recommends revising the classification to read "Treating, storing or accumulating

hazardous waste in a hazardous waste management unit as defined in 40 CPR

260.10 that does not ensure the integrity of the unit because the unit does not meet

the unit design or unit integrity assessment criteria for the hazardous waste

management unit." (emphasis added) (AOI)

Response: The hazardous waste regulations spell out the unit design and integrity

assessment criteria. First, the Department does not agree with commentor that

some of the design or integrity assessment criteria are overbroad and can be

eliminated while still ensuring unit integrity. Second, requiring the Department to

show that each criterion is actually critical to ensuring unit integrity would place

an unreasonable burden on the Department. Third, the proposal would require

consideration of specific facts and magnitude-like considerations in determining

the classification, which is counter to a primary goal of this rulernaking.

OAR 340-012-0068(1)(n)

Proposed rule: "Failure to follow emergency procedures contained in a

Contingency Plan, or other emergency response requirements, during an incident

in which a hazardous material is released to the environment or the incident

presents a risk of harm to employees, emergency responders or the public" is

proposed as a Class I violation.

Comment: This classification incorrectly refers to a "hazardous material" rather

than a "hazardous waste." The contingency plan referenced in this proposed rule

and required by 40 CFR §§ 264.50-264.56 is for a release of a, hazardous waste

and not for a release of a hazardous material. (AOI)

Response: The Department agrees that the rules should reflect the terms used in

the related substantive rules and will propose that OAR 340-012-0068(1)(n) be

amended to read "Failure to follow emergency procedures contained in a

Contingency Plan, or other emergency response requirements, during an incident

in which a hazardous waste or hazardous waste constituent is

released to the environment or the incident presents a risk of harm to employees,

emergency responders or the public" (proposed new text in underline and

proposed deletion in strikeout)

Attachment B 36

January 17, 2006

00101
Attachment 7.2, pg. 37

OAR 340-012-0068(1)(t)

Proposed rule: "Failure by any person having ownership or control over

hazardous waste to immediately clean up spills or releases or threatened spills or

releases."

Comment: The rule incorrectly refers to the need to "immediately" clean up

rather than clean up as required by obligations set out in OAR 340-142-0001(3)

and (4) which specify the clean-up obligations for a hazardous waste generator

and hazardous waste treatment, storage or disposal facility, respectively. (AOI)

Response: The Department believes that "immediately" is the correct term

because that is the term used in the relevant substantive rule at 40 CFR 265.56(g).

In addition the Department notes that these Division 12 changes cannot and do

not change the substantive laws - if a contingency plan creates a different specific

timeframe, then that would be "immediate" for the purposes of this rule.

OAR 340-012-0068(1)(bb)

Existing rule proposed to be deleted: "Storage of hazardous waste in a container

which is leaking or presenting a threat of release."

Comment: Doesn't RCRA require the enforcement of leaking of threatening

releases of hazardous wastes? Why was this rule removed and not replaced with

something at least as adequate as what RCRA requires? (Jared Kahn and Sarah

Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. Violations that previously

fell under this classification will now be covered under OAR 340-012-0068(1)(i),

if the violation involves the illegal treatment or disposal of hazardous waste or

under OAR 340-012-0068(1)(t), if the violation involves the failure to clean up a

spill or release.

OAR 340-012-0068(1)(cc)

Existing rule proposed to be deleted: "Storing more than 100 containers of

hazardous waste without complying with the secondary containment requirements

at 40 CFR 264.175."

Attachment B 37

January 17, 2006

00102
Attachment 7.2, pg. 38

Comment: If there is no numerical limit to storing hazardous waste before the

secondary requirements set in, what will be the limit, and how can a facility know

if they are in violation? (Jared Kahn and Sarah Melton)

Response: The substantive hazardous waste rules regulations govern when

secondary containment is required and these Division 12 proposed rules do not

change those requirements. This violation will remain Class I under OAR 340-

012-0068(1)(e), which applies to violations involving secondary containment.

See response to comment regarding OAR 340-012 .0068(1)(e) above.

OAR 340-012-0068(1)(dd)

Existing rule proposed to be deleted: "Systematic failure to follow hazardous

waste container labeling requirements or lack of knowledge of container

contents."

Comment: RCRA requires labeling, why would the DEQ choose to remove this

enforcement rule? (Jared Kahn and Sarah Melton)

Response: Hazardous waste labeling requirements are still required. The

proposed rules would not change any substantive compliance obligations of the

regulated community nor reduce the Department's authority or ability to enforce

or assess penalties for this violation. If a generator fails to conduct a hazardous

waste determination, the violations will be covered under OAR 340-012-

0068(1)(a). Because the violations that previously fell under this classification

have a low probability for significant, direct harm to public health or the

environment, these violations will now be Class II under OAR 340-012-

0068(2)(b), if a generator did not label a tank having 100 gallon capacity or more

or containers equaling more than 110 gallon capacity, or Class III under (3)(b) or

(c), if a generator did not label a tank having the capacity of 100 gallons or less or

containers equaling 110 gallon capacity or less.

OAR 340-012-0068(1)(kk) and (11)

Existing rules proposed to be deleted:

(kk) "Failure to install any groundwater monitoring wells."

(II) "Failure to develop and follow a groundwater sampling and analysis

plan using proper techniques and procedures."

Comment: Doesn't RCRA require groundwater monitoring wells and sampling?

Why has the DEQ chosen to not enforce this rule any longer? Will this

adequately ensure that groundwater will be protected and that there will be

deterrence, as well as adequate remediation? (Jared Kahn and Sarah Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

Attachment B 38

January 17, 2006

00103
Attachment 7.2, pg. 39

ability to enforce or assess penalties for this violation. The violations that

previously fell under these classifications will remain Class I under OAR 340-

012-0068(1)(q), which applies to TSD facilities that fail to properly install ground

water monitoring systems in compliance with their permit.

OAR 340-012-0068(2)(a)

Existing rule proposed to be deleted: "Failure to keep a copy of the

documentation used to determine whether a residue is a hazardous waste"

Comment 1: Under the current rules failing to document a hazardous waste

determination. is a Class II violation. If this classification is deleted, this

paperwork violation would be treated the same, for classification purposes, as

failing to make a determination altogether. Worse, that violation would be

classified as if it posed a similar risk of harm to health, the environment, or the

state's hazardous waste program as would operating a full-blown hazardous waste

treatment, storage, and disposal facility without a permit. The potential stigma

and harm to a business's reputation from an unwarranted Class I or Class II

citation is a concern separate from and independent of the fine that ultimately may

be levied. (Oregon Metals)

Response: The Department is proposing to delete this specific violation, but it will

remain a Class II violation. Failing to keep a copy of documentation of a

hazardous waste determination would be a Class II violation under the "otherwise

unclassified" violation of OAR 340-012-0053(2)(a). Failure to conduct a

hazardous waste determination would remain Class I under OAR 340-012-

0068(1)(a).

OAR 340-012-0068(2)(t)

Proposed rule: "All other violations relating to the treatment, storage, generation,

or disposal of hazardous waste not otherwise classified" are Class II violations.

Comment: The rule creates a catchall classification that is unnecessary in light of

the proposed rules in OAR 340-012-0053 which classifies violations that are not

otherwise classified. The rule should be deleted. (AOI)

Response: The Department agrees that this rule is unnecessary and will propose

that it not be adopted. Hazardous waste violations that are not specifically listed

under the hazardous waste classifications (-0068) will be covered under the Class

Ti "otherwise unclassified" violation (OAR 340-012-0053(2)(a)). Based on this

comment, the Department further evaluated other Class II "catch-all" violations

proposed in the program-specific sections of the rules and determined that these

violations should be amended. As a result, the Department is modifying the

language regarding the Class II violation for Polychlorinated Biphenyls (PCBs)

Attachment B 39

January 17, 2006

00104
Attachment 7.2, pg. 40

(OAR 340-012-0071(2)(a)); and withdrawing the Class II violations for Solid

Waste (OAR 340-012-0065(2)(f)) and Used Oil (OAR 340-012-0072(2)(t)).

OAR 340-012-0068(3)(f) through (b)

Existing rules proposed to be deleted:

(f) "Failure of a large quantity generator to retain copies of land disposal

restriction notifications, demonstrations, or certifications when less than

5% of the reviewed land disposal restriction notices are missing and the

facility is able to obtain copies during the inspection."

(g) "Failure of a small-quantity generator to retain copies of land disposal

restriction notifications, demonstrations, or certifications when 3 or fewer

of the reviewed land disposal restriction notices are missing and the

facility is able to obtain copies and submit them to the department within

10 days of the inspection.

(h) "Failure to keep a container of hazardous waste located in a "satellite

accumulation area" closed except when necessary to add or remove waste,

when only one container is open."

Comment: Why are these rules removed? Shouldn't there still be violations for

these particular issues - including satellite accumulation containers being closed,

which would otherwise be a threatened release? (Jared Kahn and Sarah

Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. The violations that

previously fell under (3)(f) and (g) will now be covered under the Class II

violation, OAR 340-012-0068(2)(f), which applies to the shipment of hazardous

waste on manifests that do not comply with hazardous waste regulations. The

violations that previously fell under (3)(h) will now be covered under the Class II

violation, 340-012-0068(2)(m), which applies generators who fail to keep

hazardous waste containers closed.

Used Oil Management Classification of Violations --

340-012-0072(1)(b)

Attachment B 40

January 17, 2006

00105
Attachment 7.2, pg. 41

Existing rule proposed to be deleted: "Collecting, processing, storing, disposing

of, and/or transporting, used oil without first obtaining an EPA Identification

number."

Comment: Why is it not a violation to not obtain an EPA identification number

any longer? (Jared Kahn and Sarah Melton)

Response: Persons conducting these activities would still need to obtain the EPA

identification number. The proposed rules would not change any substantive

compliance obligations of the regulated community nor reduce the Department's

authority or ability to enforce or assess penalties for this violation. Because these

violations had a low probability of significant, direct harm to the environment or

public health, the violations that previously fell under this classification will now

be Class II under OAR 340-012-0072(2)(h), which applies to facilities that

transport or process used oil without obtaining an EPA identification number.

Oil and Hazardous Material Spill and Release Classification of

Violations -

OAR 340-012-0081(1)(h)

Existing rule proposed to be deleted: "Failure to immediately correct the cause

of a spill or release."

Comment: Why is this not a major violation any longer? The DEQ will be

removing the deterrence of not immediately correcting the cause of the spill or

release. (Jared Kahn and Sarah Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. The violations that

previously fell under this classification will remain Class It under OAR 340-012-

0081(1)(a), if the violation involves the failure to immediately clean up spills or

releases, or Class I under OAR 340-012-0081(1)(f), if the violation involves the

failure to take immediate steps to prevent, repair, correct or contain a spill or

release.

Contingency Planning Classification of Violations -

OAR 340-012-0082(1)(b)

Attachment B 41

January 17, 2006

00106
Attachment 7.2, pg. 42

Existing rule proposed to be deleted: "Failure to immediately implement the

site's applicable contingency plan."

Comment: If there is no violation for failing to immediately implement the

contingency plan -. what will happen if they do not immediately implement the

contingency plan? (Jared Kahn and Sarah Melton)

Response: Failing to implement a contingency plan as required would still be a

violation, The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. The violations that

previously fell under this classification will remain Class I under OAR 340-012-

0082(1)(a), which applies to violations involving the failure to immediately

implement a contingency plan. Whether or not the Department would initiate

enforcement for any particular violation would depend on the circumstances.

OAR 340-012-0082(1)(e)

Existing rule proposed to be deleted: "Entry into the waters of the state by any

covered vessel after the department has denied such access."

Comment: Is it not a violation any longer for a vessel that has been denied entry

to enter the State's waters? (Jared Kahn and Sarah Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. Because these violations

had a low probability of significant, direct harm and are rarely cited, the

violations that previously fell under this classification will now be covered under

the Class II "otherwise unclassified" violation (OAR 340-012-0053(2)(a)).

Dry Cleaning Classification of Violations --

OAR 340-012-0097(1)(d)

Existing rule proposed to be deleted: "Failure of a person generating hazardous

waste at a dry cleaning facility to dispose of hazardous waste within the required

time frame from when the waste was placed in a hazardous waste container."

Comment: By removing this rule that had a time frame aspect - will there be any

time frame aspect now that will be required before the operator is in violation?

(Jared Kahn and Sarah Melton)

Response: The proposed rules would not change any substantive compliance

obligations of the regulated community nor reduce the Department's authority or

ability to enforce or assess penalties for this violation. Because this violation has

Attachment B 42

January 17, 2006

00107
Attachment 7.2, pg. 43

a low probability of significant, direct harm and is rarely cited, it will now be

covered under OAR 340-012-0097(2)(b), which applies to violations involving

the accumulation of hazardous waste beyond the specified time period.

OAR 340-012-0097(2)(a) and (b)

Existing rules proposed to be deleted:

(a) "Failure of a dry cleaning owner or operator to remove dry cleaning

solvent or solvent-containing residue from a dry cleaning machine, dry

cleaning store or dry store as required."

(b) "Failure to disconnect utilities from a dry cleaning machine at a dry

cleaning store as required."

Comment: Where is the rule that still makes it a violation for those specified in

the proposed removed rules? (Jared Kahn and Sarah Melton)

Response: The substantive rules applicable to drycleaners are in the Oregon

Administrative Rules at Chapter 340, Division 124. These violations would be

Class II under OAR 340-012-0097(2)(g), which applies to violations involving

the removal of dry cleaning solvents and disconnection of utilities from the dry

cleaning machine.

Selected Magnitude Categories -

OAR 340-012-0135

Comment: The Department made numerous changes to the selected magnitudes

in OAR 340-012-0135. Are these changes easier to unilaterally enforce

throughout the state? Are they more stringent? Are these rules more confusing or

simpler for inspectors and enforcement agents to implement? (Jared Kahn and

Sarah Melton)

Response: The Department proposed selected magnitudes for specific violations

where the extent or effect of the violation can be measured numerically (e.g.,

percent opacity) or discretely (e.g., number of waste streams), the measurements

are reasonably available to the Department and the violation is relatively common

so that the Department has sufficient experience and expertise to delineate the

ranges. This approach creates consistency and provides some predictability in

determining the magnitude of the violation. These changes to the selected

magnitude are not more or less stringent because the Department followed this

approach in drafting the previous selected magnitudes.

OAR 340-012-0135(2)(a)

Attachment B 43

January 17, 2006

00108
Attachment 7.2, pg. 44

Proposed Rule: (2) "Magnitudes for select violations pertaining to Water Quality

may be determined as follows: (a) Violating wastewater discharge permit effluent

limitations:"

Comment: Add "groundwater discharge limitations." (ACWA)

Response: The groundwater discharge limitations are developed much differently

than surface water effluent limitations and it would not be appropriate to use the

same magnitudes for these violations.

OAR 340 .012-0135(2)(a)(A)(i)

Proposed Rule: Violating a wastewater discharge permit effluent limitations is

major magnitude if (i) "The dilution (D) of the spill or technology based effluent

limitation exceedance was less than two, when calculated as follows: D = ((QR /4)

+ Qr, where QR is the estimated receiving stream flow and Ql is the estimated

quantity or discharge rate of the incident."

Comment: This approach is awkward and too difficult to implement in the real

world where flow data are frequently not available. Facilities discharging to

streams without flow data will be unduly penalized. The Department should

delete this magnitude language and retain the current rule approach whereby

magnitude is determined based upon the amount by which the source exceeds the

standard. (NWPP)

Response: The Department is proposing a new approach for determining the

class and magnitude for technology based effluent limitation (TBEL) and water

quality based effluent limitation (WQBEL) violations. The proposed

classifications consider the extent of the exceedance. The proposed selected

magnitudes consider the stream flow, discharge concentration and discharge flow.

Previously in the rules, all effluent limit violations were Class II violations and

the selected magnitudes considered the extent of the exceedance. This approach

did not realistically reflect situations where small insignificant discharges

occurred in large receiving streams or where large discharges occurred in small

streams, because in both situations the magnitude usually defaulted to moderate.

The more water that is in the receiving stream to dilute the spill or discharge, the

lower potential impact it may have on the receiving stream. The Department, in

developing the proposed selected magnitudes, is establishing specific criteria in

the rules to sort out these violations to give a better indication of whether the

discharge would have adversely affected the receiving stream.

The Department realizes that most facilities operating under technology based

effluent limits do not collect routine stream flow data. In developing these limits,

the Department usually uses information provided by the source's mixing zone

study. The information examines the long term flow record available for that

stream to calculate the lowest seven day flow in a ten year period (7Q10). The

Attachment B 44

January 17, 2006

00109
Attachment 7.2, pg. 45

effluent limitations are based on achieving in-stream water quality standards at

the end of the regulatory mixing zone at the 7Q10. Consequently, the availability

of dilution water is an essential element in the determination of whether a specific

discharge has the potential to harm the public health or the environment. The

Department will likely use in-stream flow gauges if available or estimate the flow

based on USGS flow information to determine the flow conditions on the day of

the violation and to determine the magnitude of the violation. If this information

cannot be obtained, the magnitude would default to moderate magnitude. This

approach is consistent with selected and general magnitudes in all other programs

which rely on the availability of the selected magnitude information. Lack of

magnitude information needed to make a specific finding leads to a determination

of magnitude using the general magnitudes.

OAR 340-012-0135(2)(a)(A)(ii)

Proposed Rule: Violating a wastewater discharge permit effluent limitations is

major magnitude if the "receiving stream flow at the time of the water quality

based effluent limitation (WQBEL) exceedance was at or below the flow used to

calculate the WQBEL."

Comment: This magnitude determination should be deleted. This magnitude

determination depends upon knowing the flow of the receiving stream at the time

of the incident. Many sources discharge to streams that are not monitored for

flow. (NWPP)

Response: The selected magnitudes that consider the flow of the receiving

stream will mostly apply to water quality based effluent limitations (WQBELs)

violation. The establishment of WQBELs is directly related to stream flow

conditions. Sources currently collect discharge flow and concentration data. As

more WQBELs are established, it will become more important for permitted

facilities to gather stream flow information to show compliance with permitted

limits. Although a majority of current individual permittees do not collect stream

flow information at their facility, the state and federal government have

established stream flow gauges on many rivers in the state. The Department in

developing each WQBELs often uses these gauges for flow information to

calculate the limits established in the NPDES permit. It would only be reasonable

that the same gauges would be used to identify the stream flow conditions on the

date of the effluent limitation exceedance. By developing selected magnitudes

related to receiving stream flow conditions, the Department is separating

exceedances into three possible magnitudes, thus more appropriately assigning the

magnitude of the violation. See also response to comment regarding OAR 340-

012-0135(2)(a)(A)(i) above.

OAR 340-012-0135 (2)(a) (A)(iii)(II)

Attachment B 45

January 17, 2006

00110
Attachment 7.2, pg. 46

Proposed Rule: Violating a wastewater discharge permit effluent limitations is

major magnitude if the "resulting water quality from the spill or discharge was as

follows: . . . For spills or discharges affecting temperature the discharge

temperature is at or above 32 degrees after two seconds from the outfall".

Comment 1: No units were included with the temperature. Add "centigrade".

(ACWA, NWPP, and City of Corvallis)

Response: The Department agrees with this comment and will add centigrade.

Comment 2: Add "when" to the language. For spills or discharges affecting

temperature "when" the discharge temperature is at or above 32 degrees after 2

seconds. (City of Corvallis)

Response: The Department agrees with this comment and will modify the

proposed language to read: OAR 340-012-0135(2)(a)(A)(iii)(II) "For spills or

discharges affecting temperature, when the discharge was at or above 32 degrees

centigrade after two seconds from the outfall."

Comment 3: This magnitude determination should be deleted. There is no

scientific basis for establishing 32 degree C after 2 seconds of plume travel as a

criterion for determining magnitude of the violation. The only study that exists is

related to a 32 degree C criterion that considered mortality after fish were

acclimatized at 10 degrees C and then immersed in 32 degree C water.. The most

sensitive species in the test results was chum salmon which suffered the first

mortality after 4 seconds and 50 percent mortality after 8 seconds. Use of this

value as an enforcement criterion is flawed for multiple reasons. First, fish do not

experience such sudden temperature shock and continued exposure as they travel

in a water body. Second, the data do not identify any mortality at 2 second

exposure. (NWPP)

Response: The Department used the water quality rules regarding temperature

thermal plumes in mixing zones to develop this selected magnitude. OAR 340-

041-0053(d)(B) states that "acute impairment or instantaneous lethality is

prevented or minimized by limiting potential fish exposure to temperatures of

32.0 degrees. Celsius (89.6 degrees Fahrenheit) or more to less than 2 seconds."

Therefore, the Department believes that using this selected magnitude to

determine the impacts to a receiving stream from a discharge that exceeds a

temperature limit is based on scientific determinations already adopted into the

substantive rules. In determining the selected magnitude, the Department will

likely use the temperature data on the discharge monitoring report and modeling

to determine if the discharge was over 32.0 degrees Celsius after 2 seconds.

Comment 4: This criterion cannot work in practice. Dischargers do not monitor

temperature two seconds from the outfall so how will the Department make this

determination? Is DEQ going to model the discharge to determine temperature?

Attachment B 46

January 17, 2006

00111
Attachment 7.2, pg. 47

Is the source supposed to? What if the source does not want to-does this mean

they are automatically upped to a major magnitude? The cost of the modeling

could well outweigh the cost of the fine. What if the stream is not water quality

limited for temperature? What if the mill discharges to the ocean? (NWPP)

Response: A temperature effluent limit is usually set as a water quality based

effluent limitation (WQBEL). In order to establish this limitation, the source

provides information about the receiving stream's mixing zone and they have

modeled their discharge to show how they will achieve water quality standards.

The Department, in establishing a WQBEL for temperature in the permit, would

base it on the information provided by the source or by information provided by

the Department if the Department has developed the mixing zone information and

has modeled the receiving stream. The limit is established to achieve an in-stream

water temperature of less than 32 degrees Celsius two seconds from the outfall. If

the effluent limitation is exceeded so that the mixing zone model would indicate a

32 degree or greater temperature for longer than two seconds in the receiving

stream then this would be a major magnitude violation. If the Department is

unable to determine the information needed to make a finding, the magnitude

would be moderate. This is consistent with the other water quality selected

magnitudes, and magnitudes of other program areas.

OAR 340-012-0135(2)(b)(A)(i)

Existing rule for which no change is proposed: Violating a numeric waterquality standard is major magnitude if the discharge "[i]ncreased the

concentration of any pollutant except for toxics, dissolved oxygen, pH, and

turbidity, by 25 percent or more of the standard".

Comment: It is not clear at all how this magnitude determination is supposed to

work and how it can be implemented as drafted. It is not clear from the rule what

is being evaluated and how that evaluation should be performed. Does DEQ

mean an increase in the waterbody equal to 25% of the standard? Does this mean

that the increase will be determined at the edge of a facility's mixing zone?

Assuming this is the approach, what about the upstream contributors? This entire

magnitude classification scheme for water quality standard violations should be

redone. If DEQ has thoughts about how this is supposed to work, we would

appreciate having specific examples prepared and explained to us. IF DEQ does

not modify this approach, the agency should include more explanation in its

referral guidance about how this works, particularly for very low standards, such

as the new Toxics Water Quality Standards. (NWPP)

Response: The selected magnitude for the 25% increase in concentration over

the standard is in the current rules and the Department has used these selected

magnitudes for many years without problem. The proposed changes were not

intended to change the current magnitude but to clarify it and add specifics for

violations of the dissolved oxygen standard. In showing this violation, the

Attachment B 47

January 17, 2006

00112
Attachment 7.2, pg, 48

Department would compare the concentration of the pollutant in the stream

compared to background concentration. This could be shown by comparing the

concentrations of a pollutant upstream and downstream of a spill, upstream and

downstream of discharge for any parameter for which an effluent limitation was

not established, or upstream and at the edge of the mixing zone for any effluent

limited parameter. For example, if the in-stream water quality standard for

parameter X was 10 mg/l, then 25% of the standard would be 2.5 mg/l. If the

background concentration in the receiving stream was 1 mg/1 and the downstream

concentration below the spill or discharge was 4 mg/l, the discharge increased the

receiving stream by more than 2.5 mg/1, which is more than 25% of the standard.

Therefore the violation would be major magnitude.

OAR 340-012-0135(2)(c)(ii)

Existing Rule: The selected magnitude for wastewater discharge permit effluent

limitations violations and water quality standards violations may be increased one

level if the violation "[d]epressed oxygen levels or increased turbidity and/or

sedimentation in a stream in which salmonids rear or spawn".

Comment: This provision should be eliminated or limited to water quality

standard violations. Many streams where salmonids rear or spawn see the

salmonids only at very limited times of the year. This rule allows an increase in

magnitude even if the violation occurred at a time of year where no salmonids

were present. In addition, even if salmonids were in the area at the time of the

violation, it allows increased magnitude even if the violation does not cause any

direct impact to the salmonids. Salmonids might not even be in that segment of

the waterbody, but the rule allows an increase in magnitude wherever the

salmonids occur in the stream. For most sources in Oregon this provision means

an automatic increase of one magnitude level. (NWPP)

Response: The Department believes that effluent limit violations will tend to

have a greater impact, and therefore greater magnitude, if they occur in a stream

where salmonids are rearing and spawning. However, the Department agrees that

the bump-up provision could be clearer if it was only available when the

discharge would likely and directly affect the fish. The Department cannot adopt

a magnitude determination that would depend on actual measured impact on

salmonids because that data seldom exist and would be expensive to obtain.

However, as a proxy, the selected magnitude could refer to maps which were

developed during the water quality standards process and which identify where

and when the salmonid uses occur. The Department therefore proposes to amend

its previous proposal to read: "Depressed oxygen levels or increased turbidity

and/or sedimentation in a stream in which salmonids may be rearing or spawning

as indicated by the beneficial use maps available at OAR 340-041-0101 to 340-

041-0340." This change would satisfy commentor's concern by limiting

application of the bump-up to cases where direct impact of fish is likely, while

meeting the Department's concern that actual case-specific data will not exist.

Attachment B 48

January 17, 2006

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Attachment 7.2, pg. 49

OAR 340-012-0135(2)(d)

No rule proposed

Comment: The Department should create a minor magnitude for violations of

municipal pretreatment programs that cause de minimis or no water quality or

environmental harm. The pretreatment programs contain many procedural

details, The DEQ enforcement rules will be strengthened by providing additional

direction to DEQ staff and pretreatment program managers about how procedural

violations will be handled. (ACWA and City of Corvallis)

Response: The Department has added Class III violation language for these types

of violations. See response to comment OAR 340-012-0055(3)(e). The

Department at this time does not have the information for developing an

appropriate range of selected magnitudes for these violations. Consequently, the

general magnitudes will apply to these violations. If the Department determines

that the violation resulted in de minimis impact then the Department would make

a determination of minor magnitude using the general magnitudes.

OAR 340-012-0135(4)(a)

Proposed deletion from rule: Magnitudes for failing to make a hazardous waste

determination are:

(A) "Major - Failure to make the determination on five or more waste

streams;

(B) Moderate - Failure to make the determination on three or four waste

streams; or

(C) Minor - Failure to make the determination on one or two waste

streams

(proposed deletion in strikeout)

Comment: This proposed rule is based. on the number of waste streams involved.

Historically and in the current rule, there has been a potential adjustment to the

selected magnitude based on the volume of hazardous waste involved. The

number of hazardous waste streams involved should not always be dispositive and

the Department should recognize a potential for an adjustment up or down in the

selected magnitude based on the volume, toxicity and management of the

hazardous waste. Propose replacing the deleted subparagraphs (D and E) with

"(D) The magnitude of the violation may be increased or decreased based on the

volume, toxicity and management of the hazardous waste streams." DEQ also

proposes to remove the volume gradations from its magnitude determination

Attachment B 49

January 17, 2006

00114
Attachment 7.2, pg. 50

criteria for failures to conduct hazardous waste determinations. The reason for this

change is not apparent. It could result in situations, such as in laboratories, where

small quantity containers of potentially low-hazard materials undesignated would

generate a Class I "Major" violation but not present significant potential harm

based on the low collective volume and low-hazard contents of such containers.

DEQ should better explain its rationale for this change and explore the possible

consequences more carefully. (AOI)

Response: The Department proposed deleting the "bump-up" and "bump-down "

provisions based on volume for determining the magnitude of failing to conduct a

hazardous waste determination. The volume of hazardous waste is related to the

potential or actual impacts to public health or the environment only if the waste is

mismanaged and the magnitude for management violations consider volume.

Furthermore, to the extent volume is a relevant factor, it is only one of several

properties of the waste which might indicate a higher potential for harm.

Although the commentor suggested adding other factors to the rule, the

Department declines to propose those factors because of the difficulties in

creating a fair and consistent approach to applying them in all cases.

OAR 340-012-0135(4)(b) and -0135(4)(c)

Comment: The Department has attempted to place every violation listed in the

hazardous waste classifications in OAR 340-012-0068 into a selected magnitude

based on volume of the waste. However, certain of the hazardous waste violation

classifications in OAR 340-012-0068 do not relate to volume of the waste

involved and should not be forced into a selected magnitude. Rather, those

violations should be left to an individual magnitude determination using the

factors in OAR 340-012-0130. Propose amending OAR 340-012-0135(4)(b) to

only apply to the hazardous waste treatment and disposal violations at OAR 340-

012-0068(1)(c), (d), (i), (n), (r), and (t); and amending OAR 340-012-0135(4)(c)

to only apply to the hazardous waste management violations at OAR

340-012-0068(1)(b), (e), (f), (g), (h), {j), (o), and (2)(a), (b), (d), (e), (f), (i), (m),

(n), (o), (p), (s) and (t). (AOI)

Response: The list of classifications which AOI suggested should not be

assigned selected magnitudes based on volume and the Department's responses

are as follows:

- The Department believes that the volume of waste involved is an

appropriate consideration in determining the magnitude of a violation

under OAR 340-012-0068(1)(k) (concerning not having and maintaining a

closure plan or post-closure plan) because the environmental risk of

storing hazardous waste without the plan increases with the volume of

waste stored. For example, a small surface impoundment of hazardous

waste would create less risk than a large surface impoundment.

The Department believes that the volume of waste involved is an

appropriate consideration in determining the magnitude of a violation

Attachment B 50

January 17, 2006

00115
Attachment 7.2, pg. 51

under OAR 340-012-0068(1)(1) (concerning failure to carry out closure or

post-closure requirements) for the same reasons as stated above for OAR

340-012-0068(1)(k).

The Department believes that the volume of waste involved is an

appropriate consideration in determining the magnitude of a violation

under OAR 340-012-0068(1)(m) (concerning establishing and maintaining

financial assurance and hazardous liability insurance) because the

environmental risk of not having sufficient resources to clean up

hazardous waste increases with the volume of waste at issue.

The Department agrees that the volume of waste involved does not best

describe the magnitude of a violation under OAR 340-012-0068(1)(p)

(concerning failure to submit an annual report) and proposes to amend the

rules so that the magnitude for this violation is determined pursuant to

OAR 340-012-0130 (general magnitudes). .

The Department agrees that the volume of waste involved does not best

describe the magnitude of a violation under OAR 340-012-0068(1)(q)

(concerning failure to install a groundwater monitoring system as required

by permit) and proposes to amend the rules so that the magnitude for this

violation is determined pursuant to OAR 340-012-0130 (general

magnitudes),

- The Department believes that the volume of waste involved is an

appropriate consideration in determining the magnitude of a violation

under OAR 340-012-0068(1)(s) (concerning failure to inspect, to operate,

to monitor, to keep records for or to maintain certain hazardous waste

management units) because the environmental risk of failing to oversee

the hazardous waste increases with the volume.

- The Department agrees that the volume of waste involved does not best

describe the magnitude of a violation under OAR 340-012-0068(2)(c)

(concerning failure of a small quantity generator to post emergency

information) and proposes to amend the rules so that the magnitude for

this violation is determined pursuant to OAR 340-012-0130 (general

magnitudes).

- The Department agrees that the volume of waste involved does not best

describe the magnitude of a violation under OAR 340-012-0068(2)(g)

(concerning failure to prevent entry by an unauthorized person or livestock

into a TSD waste management area) and proposes to amend the rules so

that the magnitude for this violation is determined pursuant to OAR 340-

012-0130 (general magnitudes).

- The Department believes that the volume of waste involved is an

appropriate consideration in determining the magnitude of a violation

under OAR 340-012-0068(2)(h) (concerning failure to conduct required

inspections) because the risk of container failure and the environmental

risk of release increases as more containers and more waste is left

uninspected.

- The Department agrees that the volume of waste involved does not best

describe the magnitude of a violation under OAR 340-012-0068(2)(j)

Attachment B 51

January 17, 2006

00116
Attachment 7.2, pg. 52

a

(concerning failure to follow groundwater monitoring program

requirement) and proposes to amend the rules so that the magnitude for

this violation is determined pursuant to OAR 340-012-0130 (general

magnitudes).

The Department believes that the volume of waste involved is an

appropriate consideration in determining the magnitude of a violation

under OAR 340-012-0068(2)(k) (concerning failure to maintain adequate

aisle space) because as more wastes are stored such that they cannot be

inspected or easily moved, the risk of container failure and the

environmental risk of release increases.

The Department agrees that the volume of waste involved does not best

describe the magnitude of a. violation under OAR 340-012-0068(2)(1)

(concerning failure to comply with personnel training requirements) and

proposes to amend the rules so that the magnitude for this violation is

determined pursuant to OAR 340-012-0130 (general magnitudes).

- The Department agrees that the volume of waste involved does not best

describe the magnitude of a violation under OAR 340-012-0068(2)(f)

(concerning failure to obtain an EPA identification number) and proposes

to amend the rules so that the magnitude for this violation is determined

pursuant to OAR 340-012-0130 (general magnitudes).

-

The Department believes that the volume of waste involved is an

appropriate consideration in determining the magnitude of a violation

under OAR 340-012-0068(2)(r) (concerning failure to comply with 40

CFR 264 or 265 subpart J, W or DD standards other than design and unit

integrity assessment) because the increased volume of waste at issue in

these violations increased the risk of environmental harm.

Determination of Base Penalty -

OAR 340-012-0140(5)(a)(L)

Proposed Rule: "The $1,000 penalty matrix applies to the following ... [a]ny

violation by a person that has or should have applied for coverage under an

NPDES 700-PMV ' General Permit for Suction Dredges."

Comment: Why did DEQ make this change without allowing those affected to

comment, especially after the agency was previously urged to eliminate penalties

for the suction dredge permits. (James Foley)

Response: First, commentor believed that he had missed the opportunity to

comment on the rule although he submitted a timely email which the Department

is considering as a comment. Second, the proposed rules do not create or change

any substantive compliance obligations of the regulated community nor reduce

the Department's authority or ability to enforce or assess penalties for any

violation. The Department believes that it must be able to enforce the provisions

of any permit under its authority and that an inability to assess a penalty would

Attachment B 52

January 17, 2006

00117
Attachment 7.2, pg. 53

eliminate its ability to regulate the activity, foster compliance, create deterrence,

and protect the environment. Finally, the Department is proposing to lower the

base penalty to the $1,000 matrix rather than the current $6,000 matrix. The

Department believes that the penalty should be assessed under this lower matrix

given the dredger's similarity to the other sources that are covered in this matrix.

Determination of Aggravating or Mitigating Factors -

OAR 340-012-0145(2)(d)(B)

Existing rule for which no change is proposed: "In determining the value of

"P," the Department will . . . include the PSAs: (i) At all facilities owned or

operated by the same violator within the state of Oregon; and (ii) That involved

the same media (air, water or land) as the violations that are the subject of the

current FEA."

Comment: Aggravating penalties with a PSA factor based on violations

occurring at all facilities owned and operated by the same company in the state of

Oregon and involving the same media is unfair to companies with multiple

facilities in Oregon. The number of facilities in Oregon bears no relationship to

the facts of an individual enforcement action. This provision is also prone to

inconsistent application as some companies operate different facilities under

different company names. (NWPP, AOr)

Response: First, the "P" factor does not consider the number of facilities owned

by the entity, but rather the number of violations that occurred at all facilities

owned or operated by the entity. Second, the Department is aware that entities

vary in corporate structure, in geographical arrangement of operations and

facilities, and in naming of the shell corporations. The Department is bound to

only proceed against legal entities, and believes the best way to avoid the biases

raised by commentor is to be blind to the differences by considering all the PSAs

for the entity regardless of shell structure, geography or aliases.

Attachment B 53

January 17, 2006

00118
Attachment 7.2, pg. 54

.4

00119
Attachment 7.3, pg. 1

Department of Environmental Quality

Phase II Enforcement Rules

Advisory Group Membership List

Members:

Richard Angstrom - representing Oregon Concrete and Aggregate Producers Association

Aaron Courtney, Perkins Coie - representing Association of Clean Water Agencies

Janet Gillaspie - representing Association of Clean Water Agencies

Bob Emrick, KE Enterprises - representing Oregon Refuse and Recyclers Association

Don Haagensen, Cable, Huston, Benedict, Haagensen & Lloyd LLP - representing

Associated Oregon Industries

Jeff Dresser - representing Associated Oregon Industries

Karen King - representing the City of Pendleton and Eastern Oregon interests

Jim Jones, Jones Oil - representing Oregon Petroleum Marketers Association

Christopher Rich, Rycewicz & Chenoweth, LLP - representing Oregon Environmental

Council

Kathryn Van Natta - representing Northwest Pulp and Paper Association

Bob Westcott, Wesco Parts Cleaners- representing small businesses

Mark Riskedahl -- representing Northwest Environmental Defense Center

Auxiliary Members:

Kevin Shanilec - representing US EPA Region 10

John Morrisey-representing Lane Regional Air Authority

Page 1 of 1 Attachment C

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