Current through Register Vol. 63, No. 3, March 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.
Publications referenced are available from the
agency.
Statutes/Other Implemented: ORS
459.376,
468.090 -
468.140, 468A.990 & 468B.025
