Current through Register Vol. 63, No. 9, September 1, 2024
(1)
Applicability. This section of these rules applies to the imposition of civil
penalties under ORS 517.992(2) for
violations of statutes, rules, orders and permit conditions not related to a
chemical process mine.
(2)
Definitions. For purposes of this section of these rules:
(a) "Compliance Schedule" is a written plan
that establishes specific actions and time tables for remedying a violation.
The compliance schedule may require the violator to propose specific actions
that are acceptable to and approved in writing by the Department. The
compliance schedule also may be used for informal disposition of proceedings
through stipulation, agreed settlement, consent order or default;
(b) "Notice of Civil Penalty" is a written
statement that includes the elements of a notice of violation and also imposes
a civil penalty;
(c) "Notice of
Violation" is a written warning that includes a short and plain statement of
the facts establishing a violation and reference to the statute, rule, order,
or permit condition that has been violated;
(d) "Outside a permit condition regarding
boundaries, setbacks, buffers, or the placement of surface mining materials"
means a violation of any permit condition that establishes or regulates the
physical or geographic limits on mining operations. "Surface mining materials"
means soil, rock, ore, minerals or overburden. It does not include discharges
of water.
(e) "Violation" is any
violation of ORS 517.700 to
517.950, or any rule, order, or
permit adopted under those statutes, provided:
(A) The statute, rule, order or permit does
not relate to a chemical process mine; and
(B) The violation relates to an operation
that is being conducted without a permit, outside of a permit boundary, or
outside of a permit condition regarding boundaries, setbacks, buffers or the
placement of surface mining refuse.
(3) Notice of Violation:
(a) If the Department finds that a violation
does not pose an immediate threat to human health, safety or the environment,
it may issue a notice of violation. The notice must give the violator a
specified period of time not less than 72 hours in which to correct the
violation;
(b) The notice of
violation may include a compliance schedule and the notice of violation may
include a requirement that a violation not be repeated within a specified
period of time;
(c) If the
violation is corrected within the specified period and any requirement imposed
under subsection (b) of this section is satisfied, the Department shall not
impose a civil penalty.
(4) Notice of Violation - Service. A notice
of violation must either be served personally or sent by registered or
certified mail. If the notice is served by mail, the period specified for
compliance must not commence until four business days after the date the notice
has been mailed.
(5) Notice of
Civil Penalty. If the Department finds that a violation poses an immediate
threat to human health, safety, or the environment, or that the violator has
not complied with the requirements contained in a previously issued notice of
violation, the Department may issue a notice of civil penalty.
(6) Notice of Civil Penalty - Form and
Service. A notice of civil penalty must be in a form and shall be served in the
manner required by ORS
183.415.
(7) Appeals - Consolidation. Any person
issued a notice of violation or a notice of civil penalty shall have the right
to a contested case hearing under ORS
183.413 to
183.470. The hearing must be
requested in writing within 20 days of the date of service. A notice of civil
penalty may be issued even though a contested case hearing is pending on the
underlying notice of violation. However, if timely requests for hearings are
received for a notice of violation and a notice of civil penalty arising out of
the same violation, the hearings may be consolidated.
(8) Civil Penalty - Classification:
(a) Civil penalties imposed under ORS
517.992(2) must
be coordinated with other agencies, to the extent practical, to avoid
duplication of penalty for the same violation and be in accordance with the
following schedule:
(A) Class 1. Violation
that poses no potential threat to human health, safety, or the environment: no
more than $1,000 per day;
(B)
Class 2. Violation that poses a potential threat to human health, safety, or
the environment, or a repeat Class 1 Violation: no more than $3,000 per day.
Potential threats to human health, safety or the environment include, but are
not limited to, actions that increase instability or erosion, or cause an
unsafe condition at the site;
(C)
Class 3. Violation that poses an immediate but remediable threat to the
environment or a repeat Class 2 violation: no more than $6,000 per day.
"Immediate but remediable threat to the environment" means that without a quick
response, and considering such factors to include but not be limited to slope
and erodibility, damage will occur and upon remediation there will be no
lasting effect of that damage.
(D)
Class 4. Violation that:
(i) Poses an
immediate threat to human health or safety;
(ii) Causes actual human injury;
(iii) Poses a threat to the environment that
is immediate and not remediable;
(iv) Causes actual damage to the environment;
or
(v) Is a repeat Class 3
violation: $1,000 to $10,000 per day.
(b) Each day of a continuing violation may be
treated as a separate violation for purposes of imposing a civil penalty;
(c) In the event of a conflict
between the text of this rule and the language or operation of the attached
schedule, the language in the text of the rule controls.
Stat. Auth.: ORS
517.090 &
517.840
Stats. Implemented: ORS
517.992
