# 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•1Attachments:

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 RulemakingAttachment 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 RulernakingAttachment 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



## 03003Attachment 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



### -Q0004Attachment 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?



## 00005Attachment 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



## 00006Attachment 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 principlefactors 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



## 00007Attachment 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



## 00008Attachment 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



### .90009Attachment 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 03/29/2006Attachment 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 03/29/2006Attachment 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 03/29/2006Attachment 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 03/29/2006Attachment 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 03/29/2006Attachment 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 & ORS 468B,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 03/29/2006Attachment 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 03/29/2006Attachment 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 03/29/2006Attachment 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

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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 03/29/2006Attachment 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 03/29/2006Attachment 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 of this Division as last Filed by the SOS 03/29/2006Attachment 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 03/29/2006Attachment 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 03/29/2006Attachment 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 43/29/2006Attachment 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

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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;

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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;

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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;

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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

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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) + Q t)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 = ((Q R /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:

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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:

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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 03/29/2006OREGON 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.

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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.

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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 03/29/2006Attachment 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 03/29/2006Attachment 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 03/29/2006Attachment 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 03/29/2006Attachment 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 forAttachment 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) 229-6412Attachment 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) 229-6412Attachment 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, 2005 Oregon 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 ACTIONAttachment 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^rn

EST. 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 NO

387505N t'
MY COMMISSION EXPIRES 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

Ac counting urnoe Dept

. of Environmental l ar.;t y .19inin) .o

# &) 7

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 betterreflect ths.depertment'sonvironmental priorities and to create consistency among pro : grams. These two factors are used for determining the base penalty and' are-.also usedas 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 tothe 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 ListAttachment 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

## 00125Attachment 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, 2006Attachment 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, 2006Attachment 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`3Attachment 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


## 00069Attachment 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 thefacility 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



## 00070Attachment 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, 2006Attachment 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 withDepartment 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, agreement s 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, 2006Attachment 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


## 00074While 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, 2006Attachment 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



## 00076Attachment 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, commentorsat 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


## 00077Attachment 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


## 00078Attachment 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 

## 00079Attachment 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


## 00080Attachment 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 

## 00081Attachment 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 ComplianceCertification 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


## 00082Attachment 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 

## 00083Attachment 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


## 00084Attachment 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


## 00085Attachment 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 

## 00086Comment: 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


### 00087Attachment 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, 2006Attachment 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, 2006Attachment 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, 2006Attachment 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, 2006Attachment 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


## 00092Attachment 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, 2006Attachment 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


## 00094Attachment 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, 2006Attachment 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



## 00096Attachment 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



### 00097Attachment 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



### 00098Attachment 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 

## 00099Attachment 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 

## 00100Attachment 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 

## 00101Attachment 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


## 00102Attachment 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 

## 00103Attachment 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 

## 00104Attachment 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 

## 00105Attachment 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



### 00106Attachment 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 

### 00107Attachment 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 

## 00108Attachment 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 

## 00109Attachment 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



### 00110Attachment 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 

## 00111Attachment 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



# 00112Attachment 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 

## 00113Attachment 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



## 00114Attachment 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 

## 00115Attachment 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 

## 00116Attachment 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 

## 00117Attachment 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 

## 00118Attachment 7.2, pg. 54

.4



## 00119Attachment 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

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