justicedao/ipfs_state_laws huggingface dataset:
603-077-0170 Consolidation of Proceedings Notwithstanding that each and every violation is a separate and distinct offense, and in cases of continuing violations, that each day’s continuance is a separate and distinct violation, proceedings for the assessment of multiple civil penalties for multiple violations may be consolidated into a single proceeding. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 2-1998, f. & cert. ef. 3-3-98
603-077-0175 Enforcement Actions (1) Notice of Noncompliance (NON): (a) Informs a person of a violation, and the consequences of the violation or continued noncompliance. The notice may state the actions required to resolve the violation and may specify a time by which compliance is to be achieved and that the need for formal enforcement action will be evaluated; (b) Shall be issued by the Director or authorized representative; (c) May be issued for all classes of documented violations; (d) Shall be a contested case order for purposes of judicial review. (2) Notice of Civil Penalty Assessment (CPA): (a) Is issued pursuant to ORS 468A.992, and OAR 603-077-0177 and 603-077-0180; (b) Shall be issued by the Director or authorized representative. (3) Order: (a) Is issued pursuant to ORS Chapters 183, 468, 468A; (b) May be in the form of a Department Order, Stipulation and Final Order (SFO) or a Mutual Agreement and Order: (A) Department Orders shall be issued by the Director or authorized representative; (B) All other Orders: (i) May be negotiated; (ii) Shall be signed by the Director or authorized representative and the authorized representative of each other party. (c) May be issued for any Class of violation. (4) The enforcement actions described in sections (1) through (3) of this rule in no way limit the Department from seeking legal or equitable remedies as provided by ORS Chapters 468, 468A, and 561. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 22-2004, f. & cert. ef. 8-10-04 DOA 18-2003, f. & cert. ef. 5-15-03 DOA 2-1998, f. & cert. ef. 3-3-98
603-077-0177 Civil Penalty Schedule Matrices In addition to any liability, duty, or other penalty provided by law, the Director may assess a civil penalty for any violation relating to field burning pertaining to statutes, rules, permits or orders by service of a written notice of assessment of civil penalty upon the Respondent. The amount of any civil penalty shall be determined through the use of the following matrix in conjunction with the formula contained in OAR 603-077-0180: Civil penalty matrix Magnitude of Violation — Major — Moderate — Minor. Class I — $6,000 — $3,000 — $1,500. Class II — $3,000 — $1,500 — $750. Class III — $500 — $250 — $10. No civil penalty issued by the Director pursuant to this matrix shall be less than fifty dollars ($50) or more than ten thousand dollars ($10,000) for each day of each violation. This matrix shall apply to the following: Any violation related to field burning statutes, rules, permits or orders. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 12-2010, f. & cert. ef. 7-12-10 DOA 22-2004, f. & cert. ef. 8-10-04 DOA 2-1998, f. & cert. ef. 3-3-98
603-077-0185 Written Notice of Assessment of Civil Penalty; When Penalty Payable (1) A civil penalty shall be due and payable ten days after the order assessing the civil penalty becomes final and the civil penalty is thereby imposed by operation of law or on appeal. A person against whom a civil penalty is assessed shall be served with a notice in the form and manner provided in ORS 183.415 and OAR chapter 137, division 003. (2) The written notice of assessment of civil penalty shall comply with ORS 468.135(1) and 183.090, relating to notice and contested case hearing applications, and shall state the amount of the penalty or penalties assessed. (3) The rules prescribing procedure in contested case proceedings contained in OAR chapter 137, division 003 shall apply thereafter. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 2-1998, f. & cert. ef. 3-3-98
603-077-0187 Compromise or Settlement of Civil Penalty by Director (1) Any time after service of the written notice of assessment of civil penalty, the Director may compromise or settle any unpaid civil penalty at any amount that the Director deems appropriate. Any compromise or settlement executed by the Director shall be final. (2) In determining whether a penalty should be compromised or settled, the Director may take into account the following: (a) New information obtained through further investigation or provided by Respondent which relates to the penalty determination factors contained in OAR 603-077-0180; (b) The effect of compromise or settlement on deterrence; (c) Whether Respondent has or is willing to employ extraordinary means to correct the violation or maintain compliance; (d) Whether Respondent has had any previous penalties which have been compromised or settled; (e) Whether the compromise or settlement would be consistent with the Department’s goal of protecting the public health and environment; (f) The relative strength or weakness of the Department’s case. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 2-1998, f. & cert. ef. 3-3-98
603-077-0188 Stipulated Penalties Nothing in OAR chapter 603, division 077 shall affect the ability of the Director to include stipulated penalties in a Stipulation and Final Order, Consent Order, Consent Decree or any other agreement issued under ORS Chapters 183, 468, or 468A. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 2-1998, f. & cert. ef. 3-3-98
603-077-0190 Additional Civil Penalties In addition to any other penalty provided by law, the following violations are subject to the civil penalties specified below: (1) Any person planting contrary to the restriction of subsection (1) of ORS 468A.580 pertaining to the open field burning of cereal grain acreage shall be assessed by the Department a civil penalty of $25 for each acre planted contrary to the restrictions. (2) Any person who intentionally or recklessly violates any provisions of ORS Chapters 468 or 468A or any rule or standard or order of the Department adopted or issued pursuant to ORS 468 or 468A, which results in or creates the imminent likelihood for an extreme hazard to the public health or which causes extensive damage to the environment shall incur a penalty up to $100,000. When determining the civil penalty sum to be assessed under this section, the Director shall apply the following procedures: (a) Select one of the following base penalties after determining the cause of the violation: (A) $50,000 if the violation was caused recklessly; (B) $75,000 if the violation was caused intentionally; (C) $100,000 if the violation was caused flagrantly. (b) Then determine the civil penalty through application of the formula: BP + ((.1 x BP) (P + H + O + C)) + EB, in accordance with OAR 603-077-0180(1)(c). Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 22-2004, f. & cert. ef. 8-10-04 DOA 2-1998, f. & cert. ef. 3-3-98
603-077-0195 Field Burning Classification of Violations Violations pertaining to field burning shall be classified as follows: (1) Class One: (a) Violation of any order of the Department listed under OAR 603-077-0175(4); (b) Systematic failure to keep records required by a permit, rule or order; (c) Open field burning in a manner that causes a hazard to public safety; (d) Causing or allowing open field burning without first obtaining a valid open field burning permit; (e) Causing or allowing open field burning or stack burning where prohibited by OAR 603-077-0110(7) or 603-077-0155(4); (f) Causing or allowing any propane flaming which results in visibility impairment on any Interstate Highway or Roadway specified in OAR 837-011-0080(1) and (2); (g) Failing to immediately and actively extinguish all flames and smoke sources when any propane flaming results in visibility impairment on any Interstate Highway or Roadway specified in OAR 837-011-0080(1) and (2); (h) Causing or allowing propane flaming of grass seed or cereal grain crops, stubble, or residue without first obtaining a valid propane flaming burning permit; (i) Stack burning grass seed or cereal grain crop residue without first obtaining a valid stack burning permit; (j) Open field burning, propane flaming, stack burning when State Fire Marshal restrictions are in effect; (k) Causing or allowing propane flaming which results in sustained open flame in a fire safety buffer zone along any Interstate Highway or Roadway specified in OAR 837-011-0080(1) or (2); (l) Failure to provide access to premise or records when required by law, rule, permit, or order. (m) Any violation that causes a major harm or poses a major risk of harm to public health or the environment. (2) Class Two: (a) Failure to actively extinguish all flames and major smoke sources from open field or stack burning when prohibition conditions are imposed by the Department or when instructed to do so by an agent or employee of the Department; (b) Causing or allowing a propane flaming operation to be conducted in a manner which causes or allows an open flame to be sustained; (3) Class Three: Any violation related to open field burning, propane flaming, or stack burning which is not otherwise classified in these rules. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 22-2004, f. & cert. ef. 8-10-04 DOA 18-2003, f. & cert. ef. 5-15-03 DOA 2-1998, f. & cert. ef. 3-3-98
603-080-0005 Land Use Coordination (1) This division is applicable to the approval of actions and projects described below under the following department programs. These are: (a) Approval of lease applications for plats for commercial cultivation of oysters on state lands in coastal estuaries pursuant to ORS Chapter 622. (b) Approval of conservation planning and implementation grants to local Soil and Water Conservation Districts pursuant to ORS Chapter 568. (c) Review of soils reports pursuant to ORS 215.710(5) and OAR 603 division 80. (d) Approval of any other action(s) under a department program subsequently determined to affect land use pursuant to OAR 660 division 30. (2) In order to approve an action or project under a program listed in OAR 603-080-0005(1)(a)–(d), the department shall find that it complies with the Statewide Planning Goals and is compatible with acknowledged city and county comprehensive plans and land use regulations. To make its goal compliance and plan compatibility findings, the department shall comply with OAR 603-080-0005(2)–(4) and shall also adhere to the procedures in the department’s state agency coordination program which is hereby adopted by reference. (3) Except where the department is required to address directly the Statewide Planning Goals under section (4) of this rule, the department shall make its goal compliance findings based on the land use compatibility information provided to the department by the affected city or county or project applicant. Such documentation shall be submitted to the department in a manner established by the department and in accordance with applicable procedures set forth in the department’s state agency coordination program. (4) The department shall adopt findings demonstrating compliance with the Statewide Planning Goals if a situation ever arises where the department must approve a project action but is unable to rely upon or is not provided with the appropriate land use compatibility information by the affected city or county or project applicant. In this instance, the department shall comply with OAR 660-030-0065 and the applicable procedures in the department’s state agency coordination program to make the necessary goal compliance findings. Statutory/Other Authority: ORS 197.180 Statutes/Other Implemented: ORS 197.180, 215.705 & 215.710 History: AD 16-1995, f. & cert. ef. 11-20-95 AD 12-1994, f. & cert. ef. 8-30-94 AD 13-1990, f. & cert. ef. 6-13-90
603-080-0015 Purpose These rules apply to the review of soils reports that propose to change the soil class, soil rating or other soil designations on a specific lot or parcel pursuant to ORS 215.710(5)(b). The department’s review decision does not itself authorize a dwelling or any other development. Statutory/Other Authority: ORS 215.705 Statutes/Other Implemented: ORS 215.705 & 215.710 History: AD 16-1995, f. & cert. ef. 11-20-95 AD 12-1994, f. & cert. ef. 8-30-94
603-080-0020 Definitions (1) The following definitions apply to words used in OAR 603-080-0015 to 603-080-0050: (a) “County” means the county in which the lot or parcel at issue is located; (b) “Department” means the Oregon Department of Agriculture; (c) “Director” means the Director of the Oregon Department of Agriculture; (d) “Lot” has the meaning provided in ORS 92.010 and 215.010; (e) “Parcel” has the meaning provided in ORS 92.010 and 215.010; and (f) “Person” means individuals, corporations, associations, firms, partnerships, joint stock companies, and governmental entities. (2) Definitions for other words used in these rules shall be consistent with interpretations given by the courts and the Oregon Land Use Board of Appeals to the same or similar terms in ORS Chapters 197 and 215, unless a different meaning is clearly indicated by context. Statutory/Other Authority: ORS 215.705 Statutes/Other Implemented: ORS 215.70 & 215.710 History: AD 16-1995, f. & cert. ef. 11-20-95 AD 12-1994, f. & cert. ef. 8-30-94
603-080-0030 Acceptable Credentials (1) Until January 1, 1997, the following credentials of soil scientists conducting the soil surveys are the minimally acceptable qualifications under ORS 215.710(5)(b)(A): (a) A soil scientist who is certified as a soils classifier by the ARCPACS (A Federation of Certifying Boards in Agronomy, Biology, Earth and Environmental Sciences); or (b) A soil scientist who can document the following qualifications: (A) Uses and understands the physical, chemical, mineralogical and biological properties that apply to pedology; (B) Has proficiency in the practice of applying pedology to soil investigation, classification, education, and consultation on the effect of measured, observed and inferred soil properties and their use. The practice of applying pedology includes the preparation of soil descriptions, maps, reports, and interpretations that apply to private or public work; and (C) Has a bachelor’s degree in soil science together with a minimum of five years of professional experience as a soils classifier, or has a master’s or doctoral degree in soil science together with a minimum of three years of professional experience as a soils classifier. (2) Beginning January 1, 1997, the only minimally acceptable credentials for a soil scientist under ORS 215.710(5)(b)(A) shall be a soil scientist certified as a soils classifier by ARCPACS (subsection (1)(a) of this rule). Soil scientists who documented their qualifications under subsection (1)(b) of this rule must be certified as a soils classifier on or before January 1, 1997, in order to continue to meet the minimally acceptable credentials for a soil scientist under ORS 215.710(5)(b)(A). (3) At its discretion, the department may verify the submitted credentials of a soil scientist. Statutory/Other Authority: ORS 215.705 Statutes/Other Implemented: ORS 215.705 & 215.710 History: AD 16-1995, f. & cert. ef. 11-20-95 AD 12-1994, f. & cert. ef. 8-30-94
603-080-0050 Review Statement (1) Within 30 days of the receipt of the soils report from the applicant, the director or his designee shall determine the acceptability of the consultant’s credentials and whether the analysis in the report is soundly and scientifically based. (2) The department shall provide a written statement to the applicant on its findings and these findings shall be an order in other than a contested case for purposes of judicial review under Oregon’s Administrative Procedure Act ORS 183.484. Statutory/Other Authority: ORS 215.705 Statutes/Other Implemented: ORS 215.705 & 215.710 History: AD 16-1995, f. & cert. ef. 11-20-95 AD 12-1994, f. & cert. ef. 8-30-94
603-080-0060 Notification of Application (1) The department shall maintain a list of persons requesting notification of applications. The department may prepare separate lists for specified geographic areas. (2) Once the department determines that an application is complete, the department shall notify all persons on the lists referred to in section (1) of this rule and OAR 603-080-0040(2). (3) Notice shall be in the form prescribed by the department and include information about the filing of the application, the general nature of the contested case proceedings, the appointment of the hearings officer and the requirements for a petition to participate in the contested case hearing as a party, limited party or interested agency. (4) Notice may be personally served or sent by first class mail. Statutory/Other Authority: ORS 561.190 & 215.705 Statutes/Other Implemented: ORS 215.705 History: AD 12-1994, f. & cert. ef. 8-30-94
603-082-0010 Purpose The purpose of this division is: (1) To establish procedures, standards and requirements to be used by the department to determine if a new plat application that proposes to lease and use state lands located in coastal estuaries for the commercial cultivation of oysters, clams or mussels is consistent with ORS 622.210 to 622.360. (2) Establish procedures, standards and requirements for the sale, lease, assignment, conveyance, relinquishment or other transfer of shellfish plats. (3) Establish procedures, standards and requirements for the withdrawal of unproductive and abandoned lands. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 622.210 - 662.360 History: DOA 11-2003, f. & cert. ef. 2-27-03
603-082-0020 Definitions For purposes of OAR 603-082-0010 through 603-082-0100, the definitions in ORS 183.310 and 622.210 apply. In addition: (1) "Claimant" means a person or agency that claims control of a plat granted by the department under ORS 622.210 to 622.992. (2) "Cultivation" means the process of growing or farming cultured oysters, clams or mussels with the primary intent to make a profit in money. Cultivation includes activities associated with bed or site preparation, seeding, grow out and harvesting and includes methods that: (a) Are or may be used on an operation of a similar nature; (b) Are or may become generally accepted, reasonable and prudent in conjunction with the commercial production of oysters, clams or mussels; and (c) Comply with applicable laws. (3) "Cultivator" means any person cultivating oysters, clams or mussels on or within a plat. (4) "Department" means the State Department of Agriculture. (5) "Impact" means the actual, expected or predictable results upon navigation, fish and wildlife habitat, recreational activities, commerce or other public uses. (6) "Plat" means an area: (a) The department has found to be available and classified as suitable for oyster, clam or mussel cultivation, pursuant to ORS 622.250; and (b) The department has granted to an applicant for oyster, clam or mussel cultivation pursuant to ORS 622.250. (7) "Public trust values" include commerce, navigation, fishing and recreation. (8) "State land" means submerged and submersible lands within the boundaries of the State of Oregon. (9) "Submerged lands" are lands lying below the line of ordinary low water of all title navigable and tidally influenced water within the State of Oregon. (10) "Submersible lands" are lands lying between the line of ordinary high water and the line of ordinary low water of all title navigable and tidally influenced water within the State of Oregon. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 622.210 - 662.360 History: DOA 11-2003, f. & cert. ef. 2-27-03
603-082-0030 Application Requirements (1) Applicants for new oyster, clam or mussel plats shall complete and submit an application form prescribed and provided by the department including the following supplemental information: (a) A legal description of the area applied describing the boundaries of the area and specifying its acreage. (b) A map of sufficient detail to allow the area applied for to be readily identified. (c) An application fee as established by ORS 622.250(1). (d) An affidavit of publication indicating fulfillment of subsection (2) of this section. (2) The applicant shall cause notice of the application to be published once a week for two consecutive weeks in a newspaper of general circulation in each county where any area is applied for, or any part thereof, is located. The notice must state the name of the applicant, the type of operation the applicant proposes to conduct, and a general and legal description of the area. The notice shall also state that any comments regarding the proposed plat may be submitted to the department. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 622.230 History: DOA 11-2003, f. & cert. ef. 2-27-03
603-082-0040 Plat Application Review Upon receipt of an application for an oyster, clam or mussel lease, an applicant shall be eligible for an authorization of a plat if the director determines that: (1) The application is complete pursuant to OAR 603-082-0030. If an application is determined to be incomplete, the department shall notify the applicant of exactly what information is missing within 45 days of the receipt of the application and allow the applicant to submit the missing information. The application shall be deemed complete on receipt of the missing information. (2) The subject area is suitable for cultivation or can be rendered suitable for cultivation with conditions imposed by the department in the final order and grant certificate. (3) In the case of an application for the cultivation of clams or mussels, the proposed plat shall involve an oyster plantation claim or plat that was in effect on June 1, 1997. The proposed clam or mussel plat area may include not more than 20 percent of the lands subject to the existing oyster claim or plat and shall include not less than one acre. (4) The proposed plat will not restrict the rights of the public to use the waters of the state in a normal and customary manner. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 622.230, 622.250 & 622.320 History: DOA 11-2003, f. & cert. ef. 2-27-03
603-082-0050 Classifying Lands Suitable for Cultivation (1) In determining if an area is suitable for cultivation of oysters, clams or mussels, the department shall consider the following: (a) Consistency with local land use regulations, plans and zoning requirements and with the Statewide Planning Goals. (b) Consistency with applicable local, state or federal laws. (c) Certification or approval status by the department for harvest intended for human consumption. (d) Compatibility with existing commercial fishing and shellfish operations including crabbing, shrimping and clamming. (e) Impacts on fish and wildlife habitat. (f) Impacts on navigation. (g) Compatibility with recreational activities, commerce or other public uses or public trust values. (h) Evidence that the land is owned by the state. (i) If the land is available for shellfish cultivation. (2) The department shall consult with appropriate local, state and federal agencies to determine whether lands proposed by an applicant are suitable for shellfish cultivation. A local, state or federal agency may request in writing to receive notice of new plat applications. (3) The classification of state lands for cultivation for a specific proposed plat area may occur concurrent with the processing and review of an application for a new plat. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 622.240 & 622.250 History: DOA 11-2003, f. & cert. ef. 2-27-03