603-027-0490 Enforcement Proceedings; Civil Penalties (1) Consolidation of Proceedings: Notwithstanding that each and every violation of any provision of ORS 646.947, 646.949 or 646.953, rules adopted under ORS 646.957 or orders issued under ORS 646.953 is a separate and distinct act and in cases of continuing violations, each day's continuance is a separate and distinct violation, proceedings for a Stop Use, Hold and/or Removal Order, or for the assessment of civil penalties arising from the same conduct or failure to act may be consolidated into a single proceeding. (2) The Director or the Director's designate shall prescribe a reasonable time for the elimination of the violation prior to imposing a civil penalty, except that if a party fails to abide by the terms of any Stop Use, Hold and/or Removal Order, the Director or the Director's designate may immediately impose a civil penalty in addition to any other remedies provided by law. (3) Violations occurring after the time prescribed for the elimination of the violation shall be considered repeat violations. (4) Civil penalties shall be due and payable when the person incurring the penalty receives a Civil Penalty Assessment Notice in writing from the Director or the Director's designate. (5) A Civil Penalty Assessment Notice, Stop Use Order, Hold Order and/or Removal Order shall be in writing. In addition to the posting providing for by OAR 603-027-0470 for Stop Use, Hold and Removal Orders, these documents shall be served on the owner or operator of the facility by registered mail, certified mail, or in person. The notice shall include, but not be limited to: (a) A reference to the particular section of the statute and/or administrative rule involved and; (b) A short and plain statement of the matters asserted or charged; (c) A statement of the amount of the penalty or penalties imposed, if any; (d) A statement of the person's right to request a hearing if such request is made within ten days of mailing of the notice and an explanation of how a hearing may be requested; (e) A statement that the notice becomes a final order unless the person upon whom the Stop Use, Hold and/or Removal Order, and /or civil penalty is assessed makes a written request for a hearing within ten days from the date of the mailing of the notice. (6) A civil penalty imposed under the applicable statutes or these regulations may be remitted or reduced at the Director's discretion upon such terms and conditions that are proper and consistent with public safety and welfare. (7) Hearing Procedures: All hearings shall be conducted pursuant to the applicable contested case procedures as outlined in ORS 183.310 to 183.550, and the Attorney General's Uniform and Model Rules of Procedure (OAR chapter 137). (8) Entry of Order and Appeal Rights: If a person notified of the Stop Use, Hold, and/or Removal Order and/or civil penalty fails to request a hearing as specified in OAR 603-027-0490(5)(e), or if after the hearing the person is found to be in violation of the provisions of these rules, a final order may be entered by the Department as follows: (a) The order shall be signed by the Director or the Director's designate; (b) If the order is not appealed, or if it is appealed and the order is sustained on appeal, the order shall constitute a judgment and may be recorded with the county clerk in any county of this state. Any penalty provided in the order so recorded becomes a lien upon the title of any interest and real property in the county owned by the person against whom the order is entered. (9) Penalty schedule: In addition to any other penalty provided by law, the Director may assess a civil penalty for violation of any provision of ORS 646.947, 646.949 or 646.953, rules adopted under ORS 646.957 or orders issued under ORS 646.953. The amount of any civil penalty shall be determined per the schedule in 603-027-0490(10) and shall not exceed $10,000. In establishing penalty assessments, the Director will consider the gravity of the violation; the scope of the violation; the past history of the person incurring the penalty; and in the case of a penalty to be imposed on a retail dealer or non-retail dealer, both the degree of knowledge by the dealer of the violation, and the demonstrated cooperativeness shown by the dealer to cure the violation. (10) Civil penalty schedule; (a) Gravity 1 (Minor); (A) 1st violation, Notice of Non-Compliance; (B) 2nd violation, Notice of Violation; (C) 3rd violation, civil penalty not less than $100 and not more than $500; (b) Gravity 2 (Moderate); (A) 1st violation, Notice of Violation; (B) 2nd violation, civil penalty not less than $501 and not more than $1000; (C) 3rd violation, civil penalty not less than $1001 and not more than $5000; (c) Gravity 3 (Major); (A) 1st violation, civil penalty of $500; (B) 2nd violation, civil penalty not less than $501 and not more than $2500; (C) 3rd violation, civil penalty not less than $2501 and not more than $5000. (11) The commission of each violation has been categorized as to its magnitude of violation as follows: (a) Gravity 1 (Minor): (A) Labeling of Dispenser(s) (Ref. OAR 603-027-0430); (i) Motor vehicle fuel dispenser not labeled with product type, grade (if applicable), and automotive fuel rating (if applicable) (ii) Gasoline and Gasoline-Oxygenate Blend dispenser(s) not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(2); (iii) Diesel (including some biodiesel and biomass-based diesel blend) dispenser not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(3); (iv) Winter or winterized diesel fuel dispenser(s) not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(4); (v) Premium diesel fuel dispenser(s) not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(1)(b) and 603-027-0430(5); (vi) Aviation gasoline dispenser(s) not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(8); (vii) Ethanol Flex Fuel dispenser(s) not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(9); (viii) Fuel methanol dispenser(s) not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(10); (ix) Biodiesel blend greater than 20 volume percent biodiesel not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(6); (x) Liquified Natural Gas (LNG) dispenser(s) not labeled in compliance with OAR 603-027-0430(1)(b) and 603-027-0430(11); (xi) Liquified Natural Gas (LNG) not sold by weight or DGE as specified in 603-027-0430(11) or sold by DGE using inaccurate conversion factor per 603-027-0430(11). (B) Storage Tank(s); Motor vehicle fuel storage tank(s); (i) Not correctly identified as to the product contained; (ii) Not correctly identified that the product contained therein is non-ethanol blended gasoline. (Ref. OAR 603-027-0440) (C) Documentation; Wholesale Dealer and Bulk Facility: (i) Incorrect, incomplete, or missing product transfer documents when custody or title of motor vehicle fuel is transferred to a person or entity other than the ultimate end user at a retail or Non-Retail dealer. (Ref. OAR 603-027-0430(1)(a)(A)). (ii) Motor vehicle fuel delivery documentation not maintained for at least one year at the person's registered place of business (Ref. OAR 603-027-0430(1)(a)(B)). (D) Certificate of Analysis Documentation; Biodiesel producer, operator of a biodiesel bulk facility, and each person who imports biodiesel not keeping on a monthly basis for at least one year, at the person’s registered place of business the certificate of analysis for each batch or production lot of biodiesel sold or delivered in Oregon (Ref. OAR 603-027-0430(1)(a)(C)); (E) Visual Appearance Analysis Documentation; Biodiesel producer, operator of a biodiesel bulk facility, and each person who imports biodiesel not keeping on a monthly basis for at least one year, at the person’s registered place of business the analysis records for visual appearance tests that are performed upon first receipt at a wholesale facility prior to commingling with existing product for each batch or production lot of biodiesel sold or delivered in Oregon (Ref. OAR 603-027-0430(1)(a)(C)); (F) Documentation; Retail Dealer, Non-Retail Dealer, and Wholesale Dealer not providing, upon request of the Department, evidence of a certificate of analysis for the biodiesel received (Ref. OAR 603-027-0430(1)(a)(D)); (G) Documentation; Retail Dealer and Non-Retail Dealer; Product transfer documents and automotive fuel rating certifications not maintained at their facilities for the three most recent deliveries to the facility for each type and grade of fuel sold or offered for sale (Ref. OAR 603-027-0430(1)(a)(E)). (b) Gravity 2 (Moderate): (A) Water phase in motor vehicle fuel storage tank(s) for gasoline-alcohol blends, B100 Biodiesel, Biodiesel Blends, E85 fuel ethanol, M85 fuel methanol, and aviation fuel exceed allowable limits (Ref. OAR 603-027-0440); (B) Water phase in motor vehicle fuel storage tank(s) for gasoline, diesel, biomass-based diesel, biomass-based diesel blends, gasoline-ether, and other fuels exceed allowable limits (Ref. OAR 603-027-0440). (c) GRAVITY 3 (Major): (A) Gasoline sold or offered for sale by a wholesale dealer, retail dealer, or non-retail dealer does not meet the requirements of 603-027-0420(1); (B) Gasoline sold or offered for sale by a wholesale dealer, retail dealer, or non-retail dealer contains one or more prohibited additives specified in 603-027-0420(4); (C) Denatured fuel ethanol intended for blending with gasoline does not meet the requirements of 603-027-0420(2); (D) Gasoline sold or offered for sale by wholesale dealer, retail dealer, or non-retail dealer does not meet gasoline-ethanol blending requirements in 603-028-0420(3); (E) Diesel Fuel, Biomass-Based Diesel Fuel, or Renewable Diesel Fuel including fuels blended with up to and including 20 volume percent biodiesel sold or offered for sale by wholesale dealer, retail dealer, or non-retail dealer does not meet the requirements of 603-027-0420(5); (F) Winter or Winterized Diesel fuel sold or offered for sale by wholesale dealer, retail dealer, or non-retail dealer does not meet the requirements of 603-027-0420(6); (G) Premium Diesel fuel sold or offered for sale by wholesale dealer, retail dealer, or non-retail dealer does not meet the requirements of 603-027-0420(7); (H) Biodiesel intended for blending with diesel fuel does not meet the requirements of 603-027-0420(8); (I) Biodiesel blend containing more than 20 volume percent biodiesel sold or offered for sale does not meet requirements of 603-027-0420(9); (J) Biomass-based diesel fuel sold or offered for sale does not meet requirements of 603-027-0420(5); (K) Biomass-based diesel blend fuel sold or offered for sale does not meet requirements of 603-027-0420(5); (L) Diesel fuel sold or offered for sale does not blending requirements of 603-027-0430(12); (M) Aviation gasoline sold or offered for sale does not meet the requirements of 603-027-0420(13); (N) Ethanol Flex Fuel sold or offered for sale does not meet the requirements of 603-027-0420(14); (O) M85 Fuel Methanol sold or offered for sale does not meet the requirements of 603-027-0420(15). Statutory/Other Authority: ORS 561.190 & ORS 646.905 - 646.990 Statutes/Other Implemented: ORS 646.905 - 646.990 & ORS 183 History: DOA 27-2021, amend filed 11/30/2021, effective 01/01/2022 DOA 17-2016, f. & cert. ef. 8-4-16 DOA 24-2011, f. & cert. ef. 12-14-11 DOA 19-2010, f. & cert. ef. 9-14-10 DOA 16-2009, f. 12-23-09, cert. ef. 1-1-10 DOA 11-2009(Temp), f. & cert. ef. 7-24-09 thru 1-17-10 DOA 21-2008, f. & cert. ef. 9-11-08 DOA 12-2008(Temp), f. 3-14-08, cert. ef. 3-17-08 thru 9-12-08 DOA 8-2008, f. & cert. ef. 2-15-08 DOA 17-2006, f. & cert. ef. 9-26-06 DOA 5-2002, f. & cert. ef. 1-28-02 AD 19-1997, f. 12-9-97, cert. ef. 1-1-98