OAR 632-035-0060: Civil Penalty

(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.