Oregon Administrative Rules › Chapter 340 - DEPARTMENT OF ENVIRONMENTAL QUALITY › Division 12 - ENFORCEMENT PROCEDURE AND CIVIL PENALTIES › Section 340-012-0038 - Warning Letters, Pre-Enforcement Notices, and Notices of Permit Violation

Current through Register Vol. 63, No. 7, July 1, 2024
(1) A
			 Warning Letter (WL) 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
			 DEQ to clarify the facts surrounding the alleged violation(s). If DEQ
			 determines that the conduct identified in the WL did not occur, DEQ 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) 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
			 DEQ to clarify the facts surrounding the alleged violations. If DEQ determines
			 that the conduct identified in the PEN did not occur, DEQ will withdraw or
			 amend the PEN, as appropriate, within 30 days. Failure to send a PEN does not
			 preclude DEQ 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.
(3) Notice of Permit Violation (NPV):
(a) Except as provided in subsection (3)(e)
			 below, an NPV will be issued for the first occurrence of an alleged Class I
			 violation of an air, water or solid waste permit issued by DEQ, and for
			 repeated or continuing alleged Class II or Class III violations of an air,
			 water, or solid waste permit issued by DEQ when a WL has failed to achieve
			 compliance or satisfactory progress toward compliance.
(b) An NPV must be in writing, specify the
			 violation and state that a civil penalty will be imposed for the permit
			 violation unless the permittee submits one of the following to DEQ within five
			 working days of receipt of the NPV:
(A) A
			 written response from the permittee certifying that the permittee is complying
			 with all terms and conditions of the permit from which the violation is cited.
			 The response must include a description of the information on which the
			 permittee's certification relies sufficient to enable DEQ to determine that
			 compliance has been achieved. The certification must be signed by a Responsible
			 Official based on information and belief after making reasonable inquiry. For
			 purposes of this rule, "Responsible Official" means one of the following:
(i) For a corporation: a president,
			 secretary, treasurer, or vice-president of the corporation in charge of a
			 principal business function, or any other person who performs similar policy-
			 or decision-making functions for the corporation; or the manager of one or more
			 manufacturing, production, or operating facilities if authority to sign
			 documents has been assigned or delegated to the manager in accordance with
			 corporate procedures.
(ii) For a
			 partnership or sole proprietorship: a general partner or the proprietor,
			 respectively.
(iii) For a
			 municipality, state, federal, or other public agency: either a principal
			 executive officer or appropriate elected official.
(B) A written proposal, acceptable to DEQ,
			 describing how the permittee will bring the facility into compliance with the
			 permit. At a minimum, an acceptable proposal must include the following:
(i) A detailed plan and time schedule for
			 achieving compliance in the shortest practicable time;
(ii) A description of the interim steps that
			 will be taken to reduce the impact of the permit violation until the permittee
			 is in compliance with the permit; and
(iii) A statement that the permittee has
			 reviewed all other conditions and limitations of the permit and no other
			 violations of the permit were discovered; or
(C) For a water quality permit violation, a
			 written request to DEQ that DEQ follow procedures described in ORS
			 468B.032.
			 Notwithstanding the requirement for a response to DEQ within five working days,
			 the permittee may file a request under this paragraph within 20 days from the
			 date of service of the NPV.
(c) If a compliance schedule approved by DEQ
			 under paragraph (3)(b)(B) provides for a compliance period of more than six
			 months, the compliance schedule must be incorporated into a final order that
			 provides for stipulated penalties in the event of any failure to comply with
			 the approved schedule. The stipulated penalties may be set at amounts
			 equivalent to the base penalty amount appropriate for the underlying violation
			 as set forth in OAR 340-012-0140;
(d) If the NPV is issued by a regional
			 authority, the regional authority may require that the permittee submit
			 information in addition to that described in subsection (3)(b).
(e) DEQ may assess a penalty without first
			 issuing an NPV if:
(A) The violation is
			 intentional;
(B) The water or air
			 violation would not normally occur for five consecutive days;
(C) The permittee has received an NPV or an
			 FEA with respect to any violation of the permit within the 36 months
			 immediately preceding the alleged violation;
(D) The permittee is subject to the Oregon
			 Title V operating permit program and violates any rule or standard adopted
			 under ORS Chapter 468A or any permit or order issued under Chapter 468A;
			 or
(E) The requirement to provide
			 an NPV would disqualify a state program from federal approval or delegation.
			 The permits and permit conditions to which this NPV exception applies include:
(i) Air Contaminant Discharge Permit (ACDP)
			 conditions that implement the State Implementation Plan under the federal Clean
			 Air Act;
(ii) Water Pollution
			 Control Facility (WPCF) permit or rule authorization conditions that implement
			 the Underground Injection Control program under the federal Safe Drinking Water
			 Act;
(iii) National Pollutant
			 Discharge Elimination System (NPDES) Permit conditions; and
(iv) Municipal Landfill Solid Waste Disposal
			 Permit conditions that implement Subtitle D of the federal Solid Waste Disposal
			 Act.
(f) For
			 purposes of section (3), a permit renewal or modification does not result in
			 the requirement that DEQ provide the permittee with an additional advance
			 notice before formal enforcement if the permittee has received an NPV, or other
			 FEA, with respect to the permit, within the 36 months immediately preceding the
			 alleged violation.