Current through Register Vol. 63, No. 3, March 1, 2024
(1) If DEQ
determines that any basis for invalidation set forth in section (2) below has
occurred, in addition to taking any other authorized enforcement action, DEQ
may take any of the actions described in subsections (a) through (d). For the
purposes of this section an approved carbon intensity refers both to carbon
intensities approved by DEQ under OAR 340-253-0450 and under OAR
340-253-0400(4).
(a) Suspend, restrict,
modify, or revoke an account in the Oregon Fuels Reporting System, or take one
combination of two or more such actions;
(b) Modify or delete an approved carbon
intensity;
(c) Restrict, suspend,
or invalidate credits; and
(d)
Recalculate the deficits in a regulated party's Oregon Fuels Reporting System
account.
(2) DEQ may
take any of the actions described in section (1) based on any of the following:
(a) Any of the information used to generate
or support the approved carbon intensity was incorrect, including if material
information was omitted or the process changed following the submission of the
carbon intensity application;
(b)
Any material information submitted in connection with the approved carbon
intensity or a credit transaction was incorrect;
(c) Fuel reported under a given pathway was
produced or transported in a manner that varies in any way from the methods set
forth in any corresponding pathway application documents submitted under OAR
340-253-0400 and OAR 340-253-0450 such that the variance would meet the
threshold to be material information;
(d) Fuel transaction data or other data
reported into the Oregon Fuels Reporting System and used to calculate credits
and deficits was incorrect or omitted material information;
(e) Credits or deficits were generated or
transferred in violation of any provision of this division or in violation of
other laws, statutes, or regulations;
(f) A party obligated to provide records
under this division refused to provide such records or failed to do so within
the required timeframe in OAR 340-253-0600(4);
(g) Failure to submit a verification
statement when it is required under OAR chapter 340, division -272;
or
(h) An adverse verification
statement submitted under OAR chapter 340, division 272.
(3) Providing Notice of an Initial
Determination.
(a) Upon making an initial
determination that a credit calculation, deficit calculation, or an approved
carbon intensity may be subject to an action described in section (1), DEQ will
notify all potentially affected parties.
(b) The notice shall state the reason for the
initial determination and may also include a specific request from any party
for information relevant to any of the bases described in section
(2).
(c) Within 20 days of the
issuance of the notice, the affected parties shall make records and personnel
available to DEQ as it conducts its investigation.
(d) Any party receiving the notice may submit
any information it believes is relevant to the investigation and that it wants
DEQ to consider in its evaluation.
(4) Interim Account Suspension. Once a notice
has been issued under section (3), DEQ may immediately take one or both of the
following actions:
(a) Deactivate an approved
carbon intensity in the AFP; or
(b)
Suspend an account in the Oregon Fuels Reporting System. In cases where a
discrete number of credits are being investigated, DEQ may place an
administrative hold on a specific number of credits rather than suspending an
entire account.
(5)
Final Determination. Within 50 days after making an initial determination under
sections (2) and (3) above, the DEQ shall make a final determination based on
the available information.
(a) The final
determination should include:
(A) Whether any
of the bases for invalidation in section (2) exist;
(B) Identification of the affected parties;
and
(C) What actions in section (1)
DEQ will impose and how many credits, deficits, or approved carbon intensities
are affected. If the final determination invalidates credits or deficit
calculations, the corresponding credits and deficits will be added or
subtracted from the appropriate accounts in the Oregon Fuels Reporting
System.
(b) The affected
parties may contest the final determination by providing DEQ with a written
request for a hearing within 20 days of receipt of the final
determination.
(c) The hearing will
be conducted as a contested case hearing under ORS
183.413
through
183.470
and OAR chapter 340, division 11. Any action taken in subsection (a) will
remain in place pending the outcome of the contested case.
(6) Responsibility for invalidated credits or
miscalculated deficits. Any party that generated, previously held, or holds
invalidated credits or whose account reflects an invalid deficit calculation is
responsible for returning its account to compliance without regard to its fault
or role with respect to the invalidation of the credits or miscalculation of
deficits.
Statutory/Other Authority: ORS
468.020,
468A.266,
468A.268
& 468A.277
Statutes/Other Implemented: ORS
468.020 &
ORS
468A.265 through
468A.277
