OAR 141-085-0775: Enforcement Actions and Procedures; Appeals

(1) Enforcement Powers. The Department is authorized to take or recommend such civil, criminal or administrative actions as are necessary to enforce the Removal-Fill Law and these rules. (2) Administrative Remedies. The Department may take appropriate action to remedy violations or alleged violations or to enforce these rules, a permit or authorization, or a final order or agreement. (a) Appropriate enforcement action depends upon the nature of the violation and may include, but is not limited to, requiring the violator to: (A) Comply with conditions of a permit, authorization or order; (B) Remove an unpermitted fill; (C) Restore the site of an unpermitted removal; (D) Pay a civil penalty; (E) Provide compensatory mitigation for unauthorized impacts or mitigation shortfalls. At the discretion of the Department and in accordance with these rules, mitigation may include payment in-lieu of mitigation, purchase of mitigation bank credits or purchase of in-lieu fee credits; and (F) Forfeit their right to apply for new removal-fill permits or authorizations (debarment). (b) The following administrative remedies may be used to implement appropriate enforcement actions: (A) Cease and desist orders may be issued to prevent damage. The Department may issue an order requiring any person to cease and desist from any project if the Department determines that such violation or threatened violation presents an imminent and substantial risk of injury, loss or damage to water resources. (i) A cease and desist order may be entered without prior notice or hearing and will be served upon the person by personal service or by registered or certified mail. (ii) A cease and desist order will state that a hearing will be held on the order if a written request for hearing is filed by the person subject to the order within 10 calendar days after receipt of the order. (iii) If a person subject to a cease and desist order files a timely request for a hearing, the Department will hold a contested case hearing before the Office of Administrative Hearings pursuant to the applicable provisions of ORS 183.310 through 183.550. (iv) Cease and desist orders will not be stayed during the pendency of a hearing conducted under this section. (v) Neither the Department nor any duly authorized representative of the Department will be liable for any damages a person may sustain as a result of a cease and desist order issued under this section. (B) Consent agreements and consent orders are cooperative in nature and are used when an agreement can be reached to resolve the violation. In signing a consent agreement, the violator waives his or her right to appeal; (C) Restoration orders may be issued when a cooperative agreement is not reached to resolve the violation. Restoration orders are appealable; (D) Revocation or suspension of an authorization, as per OAR 141-085-0780 (E) Consent agreements, consent orders and restoration orders may include a civil penalty and corrective action necessary to resolve the violation; and (F) Notice of violations may be issued to establish that a violation has occurred. Notice of violations are appealable. (3) Notice and Due Process. The Department will give notice of any proposed restoration order relating to a violation by personal service or by mailing the notice by registered or certified mail to the person or public body affected. Any proposed restoration order will include a notice of violation and will describe the nature and extent of the violation. (4) Request for Hearing. If a person subject to a restoration order under this section files a timely request for hearing, the Department will hold a contested case hearing before the Office of Administrative Hearings according to the applicable provisions of ORS 183.310 through 183.550. If the person fails to request a hearing, a final order will be issued upon a prima facie case made on the record of the agency. (5) Restoration Orders Must Be Appealed Within 20 Calendar Days. Any person aggrieved by a proposed restoration order may request a hearing within 20 calendar days of the date of personal service or mailing of the notice. (6) Written Requests for Hearings. Any written request for a hearing concerning a cease and desist or proposed restoration order shall admit or deny all factual matters stated in the proposed restoration order and shall state any and all claims or defenses regarding the alleged violation. Any factual matters not denied shall be presumed admitted, and failure to raise a claim or defense shall be presumed to be a waiver of such claim or defense. Evidence shall not be taken at the hearing on any issue not raised in the written request for hearing. (7) Civil Remedies. Any violation of ORS 196.600 to 196.990 or of any rule or final order of the Department under 196.600 to 196.990 may be enjoined in civil abatement proceedings brought in the name of the State of Oregon; and in any such proceedings the Department may seek and the court may award a sum of money sufficient to compensate the public for any destruction or infringement of any public right of navigation, fishery or recreation resulting from such violation. Civil remedies sought under this section may also include property liens. Proceedings thus brought by the Department will set forth, if applicable, the dates of notice and hearing and the specific rule or order of the Department, together with the facts of noncompliance, the facts giving rise to the public nuisance, and a statement of the damages to any public right of navigation, fishery or recreation, if any, resulting from such violation.