OAR 340-012-0038: Warning Letters, Pre-Enforcement Notices, and Notices of Permit Violation

(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: Publications referenced are available from the agency.]