OAR 629-670-0228: Repeat Violators and Financial Assurances

Note: This rule applies to all operations for which a notification is filed under ORS 527.670(6) on or after January 1, 2024 or a notification filed prior to January 1, 2024 if the operation is not completed on or before December 31, 2023. Rules that relate to fish streams apply to an operation, other than an operation on small forestland, for which a notification is filed on or after July 1, 2023. (1) The purpose of this rule is to establish a process for tracking Repeat Violators and requirements for financial assurances. (2) The State Forester may make a finding that an operator, timber owner or landowner is a Repeat Violator, pursuant to section 46(6), chapter 33, Oregon Laws 2022. The State Forester's finding shall consider whether the operator, timber owner or landowner has a history of significant violations that shows a pattern of willful disregard for the requirements of ORS 527.610 to 527.770 or rules or orders adopted or issued thereunder. The State Forester will maintain a list of Repeat Violators for use with civil penalty calculations and financial assurance. (3) If the State Forester makes a finding under subsection (2), the State Forester shall provide notice to the operator, timber owner or landowner, who may challenge the decision as an order of the State Forester pursuant to OAR 629-672-0100. (4) The State Forester shall remove a Repeat Violator from the Repeat Violator list three years after the last significant violation citation was issued. On rare occasions the State Forester may remove a Repeat Violator from the Repeat Violator list sooner than three years after the last significant violation citation if the Repeat Violator provides evidence sufficient to demonstrate that significant violations are unlikely to be repeated. In considering whether to remove the Repeat Violator from the list, the State Forester may consider: (a) Date the last citation was issued; (b) Changes in ownership, personnel, or contractors; (c) Changes in training, techniques, or equipment; (d) Recent violation history; and (e) Any other evidence submitted or available to the department relevant to the potential for future significant violations. (5) If required by the State Forester, an operator, timber owner or landowner shall provide financial assurance before conducting a new operation. The State Forester may impose this requirement only if, within the preceding three-year period, the State Forester has made a finding under section 46(6), chapter 33, Oregon Laws 2022 applicable to the operator, timber owner or landowner. If required by the State Forester, the operator, timber owner or landowner shall acquire, post, and maintain a bond or other form of financial assurance as approved by the State Forester during the entire operation until the State Forester is notified that the operation is complete. The amount of the bond or financial assurance is based on the operation size or the operation type, whichever bond amount is greater: (a) The operation acreage size: (A) Operations from 0 – 10 acres in size requires a bond of $20,000. (B) Operations from 11 – 25 acres in size requires a bond of $30,000. (C) Operations from 26 – 50 acres in size requires a bond of $40,000. (D) Operations 51 acres or great in size requires a bond of $60,000. (b) The operation type: (A) Operations of all types of road construction or reconstruction without protected resources to include but not limited to HLHL, Streams, Stream Crossing, Wetlands requires a bond of $40,000. (B) Operations of all types of road construction or reconstruction with protected resources to include but not limited to HLHL, Streams, Stream Crossing, Wetlands requires a bond of $75,000. (C) Operations of pesticide application requires a bond of $30,000. (c) If an operator, timber owner or landowner with a new operation involving two or more protected resources, the State Forester may assess a bond as appropriate for the risk of the operation up to a value of $250,000. (6) The State Forester may make a claim against the bond or financial assurance and apply any money received towards correcting the conditions that give rise to the claim if the State Forester determines that: (a) Actions required under the forest practice rules were not completed and the State Forester would incur costs to repair damage or correct an unsatisfactory condition; (b) Protected resources were damaged; (c) Fines or civil penalties that were assessed for the violation; or (d) The actions taken during the operation otherwise caused the State Forester to incur costs to correct the conditions that gave rise to the claim.