justicedao/ipfs_state_laws huggingface dataset:
340-011-0545 Contested Cases: Burden and Standard of Proof in Contested Case Hearings; DEQ Interpretation of Rules and Statutory Terms (1) The participant who asserts a fact or position is the proponent of that fact or position and has the burden of presenting evidence to support that fact or position, unless the burden is specifically allocated differently by a statute or rule. (2) All findings in a proposed or final order must be based on a preponderance of evidence in the record unless another standard is specifically required by statute or rule. (3) In reviewing DEQ's interpretation of a DEQ rule as applied in a formal enforcement action, an administrative law judge must follow DEQ's interpretation if that interpretation is both plausible and reasonably consistent with the wording of the rule and the underlying statutes. The administrative law judge may state, on the record, an alternative interpretation for consideration on appeal. (4) With the exception of exact terms that do not require interpretation, an administrative law judge shall give DEQ's interpretation of statutory terms the appropriate deference in light of DEQ's expertise with the subject matter, DEQ's experience with the statute, DEQ's involvement in the relevant legislative process, and the degree of discretion accorded DEQ by the legislature. Statutory/Other Authority: ORS 183.341 & 468.020 Statutes/Other Implemented: ORS 183.450 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 18-2003, f. & cert. ef. 12-12-03
340-011-0550 Contested Cases: Discovery (1) Motions for discovery will only be granted if the motion establishes that: (a) The participant seeking the information attempted to obtain the information through an informal process. If the participant is seeking information from a public agency, the participant must make a public record request prior to petitioning for discovery; and (b) The discovery request is reasonably likely to produce information that is generally relevant and necessary to the matters alleged in the notice of a right to a contested case hearing and the request for hearing, or is likely to facilitate resolution of the case. (2) An administrative law judge is not authorized to order depositions, admissions, interrogatories or site visits unless DEQ authorizes the same in writing in the specific case. Statutory/Other Authority: ORS 183.341 & 468.020 Statutes/Other Implemented: ORS 183.425, 183.440 & 183.450 History: DEQ 18-2003, f. & cert. ef. 12-12-03
340-011-0555 Contested Cases: Subpoenas (1) Subpoenas for the attendance of witnesses or production of documents at a contested case hearing will be issued in accordance with OAR 137-003-0585. (2) Copies of the subpoena must be provided to the administrative law judge and all participants at the time of service to the person to whom the subpoena is issued. (3) Service of a subpoena for the attendance of a witness must be completed by personal service unless the witness has indicated that he is willing to appear and the subpoena is mailed at least 10 days prior to the hearing. Personal service should be effected at least 7 days prior to the hearing. (4) Service of a subpoena for the production of documents at a contested case hearing may be effected by regular mail provided that it is done sufficiently in advance of the hearing to allow reasonable time to produce the documents. (5) Service of a subpoena for both the attendance of a witness and production of documents must be completed as provided under section (3) of this rule. (6) Any witness who appears at a hearing under a subpoena will receive fees and mileage as set forth in ORS 44.415(2). Statutory/Other Authority: ORS 183.341 & 468.020 Statutes/Other Implemented: ORS 183.425, 183.440 & 468.120 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 18-2003, f. & cert. ef. 12-12-03
340-011-0560 Contested Cases: Public Attendance at Contested Case Hearing An administrative law judge may close a contested case hearing to the public upon the request of a participant in the contested case hearing. Statutory/Other Authority: ORS 183.341 & 468.020 Statutes/Other Implemented: ORS 183.341 History: Renumbered from 340-011-0122 by DEQ 18-2003, f. & cert. ef. 12-12-03 DEQ 9-2000, f. & cert. ef. 7-21-00 DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00
340-011-0565 Contested Cases: Immediate Review Immediate review under OAR 137-003-0640 is not allowed. Statutory/Other Authority: ORS 183.341 & 468.020 Statutes/Other Implemented: ORS 183.341 History: DEQ 1-2014, f. & cert. ef. 1-6-14 Renumbered from 340-011-0124 by DEQ 18-2003, f. & cert. ef. 12-12-03 DEQ 9-2000, f. & cert. ef. 7-21-00 DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00
340-011-0570 Contested Cases: Permissible Scope of Hearing (1) The scope of a contested case hearing will be limited to those matters that are relevant and material to either proving or disproving the matters alleged in the notice and request for hearing. Equitable remedies will not be considered by an administrative law judge. (2) The administrative law judge may not reduce or mitigate a civil penalty below the amount established by the application of the civil penalty formula contained in OAR 340, division 12. Statutory/Other Authority: ORS 183.341 & 468.020 Statutes/Other Implemented: ORS 183.450 & 468.130 History: DEQ 1-2014, f. & cert. ef. 1-6-14 Renumbered from 340-011-0131 by DEQ 18-2003, f. & cert. ef. 12-12-03 DEQ 9-2000, f. & cert. ef. 7-21-00 DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00
340-011-0573 Contested Cases: Proposed Orders in Contested Cases (1) Following the close of the record for a contested case hearing, the administrative law judge will issue a proposed order. The administrative law judge will serve the proposed order on each participant. (2) Within 15 days after a proposed contested case order is served, a participant in the contested case hearing may file a motion requesting that the administrative law judge clarify or supplement a proposed order. The motion must specify why the participant believes that the proposed order fails to conform to the requirements of OAR 137-003-0645 and recommend changes to the order. The motion must be filed with the administrative law judge and a copy provided to all participants. (3) The administrative law judge may grant or deny a motion filed under section (2) of this rule within 15 days. If the motion is granted, the administrative law judge may take the matter under advisement and reissue the proposed order unchanged or may issue an amended proposed order. If the administrative law judge fails to act on the motion within 15 days, the motion is deemed denied by operation of law. (4) The filing of a timely motion for clarification under section (2) of this rule tolls the period for filing a Petition for Commission Review of the proposed contested case order under OAR 340-011-0575. Tolling of the period begins on the day the motion is filed with the administrative law judge and ends on the day the motion is denied, deemed denied by operation of law, or the proposed order is reissued without changes. If the administrative law judge issues an amended proposed order, the amended order will be treated as a new proposed order for the purpose of filing a timely Petition for Commission Review under 340-011-0575. (5) The motion for clarification authorized by this rule is intended to alter the provisions of OAR 137-003-0655 but not to eliminate the authority of the administrative law judge to correct a proposed order in the manner specified in section (2) of that rule. (6) A motion for clarification and any response to a motion for clarification will be part of the record on appeal. Statutory/Other Authority: ORS 468.020, 183.341, 183 & 452 Statutes/Other Implemented: ORS 468A.020, 468.070, 468.090 - 0140, 183.341 & 183.452 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 5-2008, f. & cert. ef. 3-20-08
340-011-0580 Contested Cases: Petitions for Reconsideration or Rehearing (1) A participant is not required to seek either reconsideration or rehearing of a final order prior to seeking judicial review. (2) Any petition for reconsideration or rehearing must be received by DEQ within 60 days of service of the final order. Unless specifically set forth in this rule, the procedures for petitions for reconsideration or rehearing are those in OAR 137-003-0675. (3) A petition for reconsideration or rehearing does not stay the effect of the final order. (4) The director, on behalf of the commission, shall issue orders granting or denying petitions for reconsideration and rehearing. Statutory/Other Authority: ORS 183.341 & 468.020 Statutes/Other Implemented: ORS 183.480 & 183.482 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 18-2003, f. & cert. ef. 12-12-03
340-011-0585 Contested Cases: Petitions for a Stay of the Effect of a Final Order (1) A petition to stay the effect of any final order must be received by DEQ within 60 days of service of the final order. Unless specifically set forth in this rule, the procedures for petitions for a stay are those in OAR 137-003-0690 through 0700. (2) If a participant submits a petition for reconsideration or rehearing or a late request for hearing, the petition for a stay must accompany that petition. (3) A petition for a stay must contain all the elements set forth in OAR 137-003-0690 and be served upon all participants as set forth in 137-003-0690(4). (4) Any participant may seek to intervene in the stay proceeding as set forth in OAR 137-003-0695 by filing a response to the petition for a stay with DEQ. (5) The director, on behalf of the commission, shall issue an order granting or denying the petition for a stay within 30 days of receipt of the petition. Statutory/Other Authority: ORS 183.341 & 468.020 Statutes/Other Implemented: ORS 183.480 & 183.482 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 18-2003, f. & cert. ef. 12-12-03
340-012-0026 Policy (1) The goals of enforcement are to: (a) Protect the public health and the environment; (b) Obtain and maintain compliance with applicable environmental statutes and DEQ's rules, permits and orders; (c) Deter future violators and violations; and (d) Ensure an appropriate and consistent statewide enforcement program. (2) DEQ shall endeavor by conference, conciliation and persuasion to solicit compliance. (3) DEQ endeavors to address all alleged violations in order of priority, based on the actual or potential impact to human health or the environment, using increasing levels of enforcement as necessary to achieve the goals set forth in section (1) of this rule. (4) DEQ subjects violators who do not comply with an initial enforcement action to increasing levels of enforcement until they come into compliance. (5) DEQ endeavors to issue a formal enforcement action within six months from completion of the investigation of the violation. Statutory/Other Authority: ORS 459.995, 466, 467, 468.020, 468.996, 468A & 468B Statutes/Other Implemented: ORS 183.090, 454.635, 454.645, 459.376, 459.995, 465.900, 466.210, 466.880 - 895, 468.090 - 140, 468A.990, 468.992, 468B.025, 468B.220 & 468B.450 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05 DEQ 21-1992, f. & cert. ef. 8-11-92 DEQ 15-1990, f. & cert. ef. 3-30-90 DEQ 4-1989, f. & cert. ef. 3-14-89
340-012-0028 Scope of Applicability Amendments to OAR 340-012-0026 to 340-012-0170 shall only apply to formal enforcement actions issued by DEQ on or after the effective date of such amendments and not to any contested cases pending or formal enforcement actions issued prior to the effective date of such amendments. Statutory/Other Authority: ORS 454, 459.995, 466, 467, 468.020 & 468.996 Statutes/Other Implemented: ORS 183.090, 454.635, 454.645, 459.376, 459.995, 465.900, 466.210, 466.880 - 895, 468.090 - 140, 468A.990, 468.992, 468B.025, 468B.220 & 468B.450 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05 DEQ 21-1992, f. & cert. ef. 8-11-92, Renumbered from 340-012-0080 DEQ 15-1990, f. & cert. ef. 3-30-90 DEQ 4-1989, f. & cert. ef. 3-14-89
340-012-0041 Formal Enforcement Actions (1) FEAs may require that the respondent take action within a specified timeframe or may assess civil penalties. DEQ may issue an NPV or FEA whether or not it has previously issued a WL or PEN related to the issue or violation. Unless specifically prohibited by statute or rule, DEQ may issue an FEA without first issuing an NPV. (2) A Notice of Civil Penalty Assessment and Order 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). (3) An Order may be in the form of a commission or department order, including any written order that has been consented to in writing by the parties thereto, including but not limited to, a Mutual Agreement and Order (MAO). (4) A Final Order and Stipulated Penalty Demand Notice may be issued according to the terms of any written final order that has been consented to in writing by the parties thereto, including, but not limited to, a MAO. (5) A pre-enforcement offer to settle may be made pursuant to DEQ’s expedited enforcement procedures in OAR 340-012-0170(2) or Field Penalty procedures prescribed by OAR chapter 340, division 150. (6) The enforcement actions described in sections (2) through (5) of this rule in no way limit DEQ or commission from seeking any other legal or equitable remedies, including revocation of any DEQ-issued license or permit, provided by ORS Chapters 183, 454, 459, 465, 466, 467, 468, 468A, and 468B. Statutory/Other Authority: ORS 454.625, 459.376, 465.400-410, 466.625, 467.030, 468.020, 468A.025, 468A.045 & 468B.035 Statutes/Other Implemented: ORS 454.635, 454.645, 459.376, 459.995, 465.900, 466.210, 466.880-895, 468.090-140, 468A.990, 468.992, 468B.025, 468B.220 & 468B.450 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05 DEQ 19-1998, f. & cert. ef. 10-12-98 DEQ 4-1994, f. & cert. ef. 3-14-94 DEQ 21-1992, f. & cert. ef. 8-11-92 DEQ 15-1990, f. & cert. ef. 3-30-90 DEQ 4-1989, f. & cert. ef. 3-14-89
340-012-0045 Civil Penalty Determination Procedure DEQ may assess a civil penalty for any violation, in addition to any other liability, duty, or other penalty provided by law. Except for civil penalties assessed under either OAR 340-012-0155 or OAR 340-012-0160, DEQ determines the amount of the civil penalty using the following formula: BP + [(0.1 x BP) x (P + H + O + M + C)] + EB. (1) BP is the base penalty and is determined by the following procedure: (a) The classification of each violation is determined according to OAR 340-012-0053 to 340-012-0099. (b) The magnitude of the violation is determined according to OAR 340-012-0130 and 340-012-0135. (c) The appropriate base penalty (BP) for each violation is determined by applying the classification and magnitude of each violation to the matrices in OAR 340-012-0140. (2) The base penalty is adjusted by the application of aggravating or mitigating factors set forth in OAR 340-012-0145. (3) The appropriate economic benefit (EB) is determined as set forth in OAR 340-012-0150. Statutory/Other Authority: ORS 468.020 Statutes/Other Implemented: ORS 454.635, 454.645, 459.376, 459.995, 465.900, 466.210, 466.880-895, 468.090-140, 468.992, 468A.990, 468B.025, 468B.220 & 468B.450 History: DEQ 1-2025, amend filed 01/09/2025, effective 01/09/2025 DEQ 21-2024, minor correction filed 11/24/2024, effective 11/24/2024 DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05 DEQ 1-2003, f. & cert. ef. 1-31-03 DEQ 19-1998, f. & cert. ef. 10-12-98 DEQ 4-1994, f. & cert. ef. 3-14-94 DEQ 21-1992, f. & cert. ef. 8-11-92 DEQ 15-1990, f. & cert. ef. 3-30-90 DEQ 4-1989, f. & cert. ef. 3-14-89 DEQ 22-1988, f. & cert. ef. 9-14-88 DEQ 22-1984, f. & ef. 11-8-84 DEQ 78, f. 9-6-74, ef. 9-25-74
340-012-0053 Classification of 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 or permit attachment; (b) Submitting false, inaccurate or incomplete information to DEQ where the submittal masked a violation, caused environmental harm, or caused DEQ 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 DEQ approval, permit, permit attachment, certification, or license. (2) Class II : Violating any otherwise unclassified requirement. Statutory/Other Authority: ORS 468.020 & 468.130 Statutes/Other Implemented: ORS 459.376, 459.995, 465.900, 465.992, 466.990 - 466.994, 468.090 - 468.140 & 468B.450 History: DEQ 197-2018, amend filed 11/16/2018, effective 11/16/2018 DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06 DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05
340-012-0064 Fuel Tank Seismic Stability Enforcement Classification of Violations (1) Class I: (a) Failure to timely submit a facility Seismic Vulnerability Assessment as required under OAR 340-300-0004. (b) Failure to timely submit a facility Risk Mitigation Implementation Plan or a final post-implementation report as required under OAR 340-300-0005. (c) Failure to implement DEQ approved Risk Mitigation Implementation Plan. (d) Failure to maintain equipment, personnel and training at levels described in an approved Risk Mitigation Implementation Plan. (e) Operating a bulk fuel terminal without an approved facility Seismic Vulnerability Assessment or Risk Mitigation Implementation Plan. (2) Class II: (a) Failure to allow access for facility inspection when requested. (b) Failure to submit a modification request prior to changing an approved Seismic Vulnerability Assessment or Risk Mitigation Implementation Plan. (c) Failure to implement required changes to an approved Seismic Vulnerability Assessment or Risk Mitigation Implementation Plan. (3) Class III: (a) Failure to provide maintenance and inspections records of the storage and transfer facilities to DEQ upon request. (b) Failing to notify DEQ within 14 calendar days of any significant changes that could affect implementation of a required Risk Mitigation Implementation Plan. (c) Failing to retain records of Seismic Vulnerability Assessment or Risk Mitigation Implementation Plan as required in 340-300-0003(11) and 340-300-003(13). Statutory/Other Authority: ORS 468.020 & SB 1567 (2022) Statutes/Other Implemented: SB 1567 (2022) History: DEQ 13-2023, adopt filed 09/14/2023, effective 09/14/2023
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: 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. Statutory/Other Authority: ORS 459.785 & 468.020 Statutes/Other Implemented: ORS 459.705 - 459.790, 459.992 & 468.090 - 468.140 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06 DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05 DEQ 19-1998, f. & cert. ef. 10-12-98 DEQ 21-1992, f. & cert. ef. 8-11-92 DEQ 15-1990, f. & cert. ef. 3-30-90 DEQ 4-1989, f. & cert. ef. 3-14-89
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 DEQ; or (b) Establishing, constructing or operating a PCB disposal facility without first obtaining a permit or DEQ authorization. (2) Class II: Violating any other requirement related to the treatment, storage, generation or disposal of PCBs is classified under OAR 340-012-0053. Statutory/Other Authority: ORS 459.995, 466.625, 467.030, 468.020 & 468.996 Statutes/Other Implemented: ORS 466.255, 466.265 - 466.270, 466.530 & 466.990 - 466.994 History: DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06 DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05 DEQ 6-2001, f. 6-18-01, cert. ef. 7-1-01 DEQ 19-1998, f. & cert. ef. 10-12-98 DEQ 21-1992, f. & cert. ef. 8-11-92 DEQ 15-1990, f. & cert. ef. 3-30-90 DEQ 4-1989, f. & cert. ef. 3-14-89 DEQ 22-1988, f. & cert. ef. 9-14-88
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 re-refiner; (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 a 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. (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. Statutory/Other Authority: ORS 459.995, 468.020, 459A.590, 459A.595 & 468.996 Statutes/Other Implemented: ORS 459A.580 - 459A.585, 459A.590 & 468.090 - 468.140 History: DEQ 13-2019, amend filed 05/16/2019, effective 05/16/2019 DEQ 1-2014, f. & cert. ef. 1-6-14 DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06 DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05 DEQ 19-1998, f. & cert. ef. 10-12-98 DEQ 21-1992, f. & cert. ef. 8-11-92 DEQ 33-1990, f. & cert. ef. 8-15-90