Current through Register Vol. 63, No. 9, September 1, 2024
(1) The
Department has discretion to issue a notice of violation, except that the
Council may instruct the Department to issue a notice of violation. Factors the
Council or Department must consider in deciding whether conditions or
circumstances warrant issuing a notice of violation are:
(a) Did the responsible party report the
conditions or circumstances in a timely manner?
(b) Are the conditions or circumstances
limited to the possible violation of a reporting requirement?
(c) Are the conditions or circumstances the
result of ambiguous language in the requirement in question?
(d) Are the conditions or circumstances the
result of a change to the design, construction, operation or retirement of a
facility for which a site certificate has been issued, and did the certificate
holder decide that no amendment of the site certificate was required, based on
a reasonable analysis of the criteria in OAR 345-027-0350(2)?
(e) Has the violation in question been cited
by any other state agency having jurisdiction?
(f) Are the conditions or circumstances
within the control of the responsible party?
(2) If the Department determines upon
inspection as provided for in OAR 345-026-0050, upon receipt of a report from
the responsible party under OAR 345-029-0010, or by other means that there has
been a violation for which sanctions may be imposed as described in OAR
345-029-0003, the Department may serve a notice of violation upon the
responsible party. The Department must serve the notice of violation by
personal service or by first class, certified or registered mail.
(3) In the notice of violation, the
Department must include:
(a) A reference to
the statute, administrative rule, order, or site certificate term or condition
violated as determined by the Department;
(b) A statement of the facts upon which the
Department based its determination that a violation occurred, including the
date of discovery;
(c) A
requirement for the responsible party to provide a written response to the
notice of violation within 30 days or other specified time;
(d) A statement of the responsible party's
right to a hearing as provided for in OAR 345-029-0070 if the Department later
issues a notice of assessment of civil penalty as described under OAR
345-029-0060; and
(e) The
Department's classification of the violation, including a statement of the
consideration given to the following factors:
(A) The performance of the responsible party
in taking necessary or appropriate action to correct or prevent the
violation;
(B) Any similar or
related violations by the certificate holder in the previous 36
months;
(C) Any adverse impact of
the violation on public health and safety; and
(D) For a violation of the terms or
conditions of a site certificate, any adverse impact of the violation on
resources protected by Council standards or site certificate
conditions.
Statutory/Other Authority: ORS
469.470
Statutes/Other Implemented: ORS
469.085,
469.440 & 469.992
