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(k) Failing to carry out closure or post closure plan requirements, by an owner or operator of a TSD facility, such that the certification for completing closure or post closure work is not submitted, or is incomplete, inaccurate, or non-compliant with the approved plans;
(l) Failing to establish or maintain financial assurance or hazard liability requirements in 40 CFR 264.147 or 40 CFR 265.147, by an owner or operator of a TSD facility;
(m) Failing to follow emergency procedures in a Contingency Plan or other emergency response requirements during an incident in which a hazardous waste or hazardous waste constituent is released to the environment or the incident presents a risk of harm to employees, emergency responders or the public;
(n) Failing to comply with the export requirements in 40 CFR 262.52 for hazardous wastes;
(o) Failing to properly install a groundwater monitoring system in compliance with permit requirements, by an owner or operator of a TSD facility;
(p) Failing to properly control volatile organic hazardous waste emissions, by a large-quantity hazardous waste generator or TSD facility, when such failure could result in harm to employees, the public or the environment;
(q) Failing to inspect, operate, monitor, keep records or maintain in compliance with a permit: hazardous waste landfill units, incineration equipment, Subpart X treatment equipment, hazardous waste treatment units, pollution abatement equipment for hazardous waste treatment or disposal, or hazardous waste monitoring equipment; or
(r) Failing to immediately clean up spills or releases or threatened spills or releases of hazardous waste, by any person having ownership or control over hazardous waste.
(2) Class II:
(a) Failing to place an accumulation start date on a container used for accumulation or storage of hazardous waste;
(b) Failing to label a tank having a capacity of 100 gallons or more, or containers equaling more than 110 gallon capacity used for accumulation or storage of hazardous waste;
(c) Failing to post required emergency response information next to the telephone, by a small quantity generator;
(d) Accumulating hazardous waste more than thirty (30) days beyond the specified accumulation time frame;
(e) Failing to submit a manifest discrepancy report;
(f) Shipping hazardous waste on manifests that do not comply with department rules;
(g) Failing to prevent the unknown or unauthorized entry of a person or livestock into the waste management area of a treatment, storage or disposal facility;
(h) Failing to conduct required inspections at hazardous waste generator accumulation sites or hazardous waste permitted storage areas;
(i) Failing to prepare a contingency plan;
(j) Failing to follow the requirements of a groundwater monitoring program, unless otherwise classified;
(k) Failing to maintain adequate aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination;
(l) Generating, treating, storing or disposing of hazardous waste without complying with the Personnel Training requirements;
(m) Failing to keep containers of hazardous waste closed, except when adding or removing wastes;
(n) Failing to comply with the requirements for management of containers, including satellite accumulation, other than the requirements for ignitable, reactive or incompatible waste, by a hazardous waste generator or storage facility;
(o) Failing to comply with the preparedness, prevention, contingency plan or emergency procedure requirements, unless otherwise classified;
(p) Failing to manage universal waste and waste pesticide residue in compliance with the universal waste management requirements or waste pesticide requirements;
(q) Failing to obtain a hazardous waste EPA identification number when required;
(r) Failing to comply with 40 CFR 264 or 265 Subparts J, W or DD standards, other than unit design or unit integrity assessment;
(s) Failing to comply with 40 CFR 264 or 265 Subparts AA, BB or CC standards for hazardous waste generator and TSD facilities, unless otherwise classified; or
(t) Failing to timely submit an annual report, by a hazardous waste generator, TSD facility, or hazardous waste recycling facility.
(3) Class III:
(a) Accumulating hazardous waste up to thirty (30) days beyond the specified accumulation time frame;
(b) Failing to label containers equaling 110 gallon capacity or less used for the accumulation or storage of hazardous waste;
(c) Failing to label a tank having less than 100 gallon capacity used for the accumulation or storage of hazardous waste;
(d) Failing to maintain on site a copy of the one-time notification regarding hazardous waste that meets treatment standards by a hazardous waste generator; or
(e) Failing to submit a contingency plan to all police, fire, hospital and local emergency responders.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.: ORS 459.995, 466.070 - 466.080, 466.625 & 468.020
Stats. Implemented: ORS 466.635 - 466.680, 466.990 - 466.994 & 468.090 - 468.140
Hist.: DEQ 1-1982, f. & ef. 1-28-82; DEQ 22-1984, f. & ef. 11-8-84; DEQ 9-1986, f. & ef. 5-1-86; DEQ 17-1986, f. & ef. 9-18-86; DEQ 22-1988, f. & cert. ef. 9-14-88; DEQ 4-1989, f. & cert. ef. 3-14-89; DEQ 15-1990, f. & cert. ef. 3-30-90; DEQ 21-1992, f. & cert. ef. 8-11-92; DEQ 19-1998, f. & cert. ef. 10-12-98; DEQ 6-2001, f. 6-18-01, cert. ef. 7-1-01; DEQ 13-2002, f. & cert. ef. 10-9-02; DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0071
Polychlorinated Biphenyl (PCB) Classification of Violations
(1) Class I:
(a) Treating, storing or disposing of PCBs anywhere other than a permitted PCB disposal facility or a location authorized by the department; or
(b) Establishing, constructing or operating a PCB disposal facility without first obtaining a permit or department authorization.
(2) Class II: Violating any other requirement related to the treatment, storage, generation or disposal of PCBs is classified under OAR 340-012-0053.
Stat. Auth.: ORS 459.995, 466.625, 467.030, 468.020 & 468.996
Stats. Implemented: ORS 466.255, 466.265 - 466.270, 466.530 & 466.990 - 466.994
Hist.: DEQ 22-1988, f. & cert. ef. 9-14-88; DEQ 4-1989, f. & cert. ef. 3-14-89; DEQ 15-1990, f. & cert. ef. 3-30-90; DEQ 21-1992, f. & cert. ef. 8-11-92; DEQ 19-1998, f. & cert. ef. 10-12-98; DEQ 6-2001, f. 6-18-01, cert. ef. 7-1-01; DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0072
Used Oil Management Classification of Violations
(1) Class I:
(a) Using used oil as a dust suppressant, pesticide, or otherwise spreading used oil directly in the environment;
(b) Burning a used oil mixture where the used oil mixture has less than 5,000 Btu/pound;
(c) Offering for sale used oil as specification used oil fuel when the used oil does not meet used oil fuel specifications;
(d) Selling off-specification used oil fuel to a facility not meeting the definition of an industrial boiler or furnace;
(e) Burning off-specification used oil in a device that does not meet the definition of an industrial boiler or furnace and is not otherwise exempt;
(f) Failing to make an on-specification used oil fuel determination when required, by a used oil generator, transporter, burner or processor;
(g) Storing or managing used oil in a surface impoundment;
(h) Failing to determine whether used oil exceeds the permissible halogen content, by a used oil transporter, burner or processor;
(i) Failing to perform required closure on a used oil tank or container, by a used oil processor or re-refiner;
(j) Failing to maintain required secondary containment at a used oil transfer facility or by a processor, burner, or marketer of used oil; or
(k) Failing to immediately clean up spills or releases or threatened spills or releases of used oil, by any person having ownership or control over the used oil.
(2) Class II:
(a) Failing to obtain a one time written notification from a burner before shipping off-specification used oil fuel, by a used oil generator, transporter, processor or re-refiner;
(b) Failing to develop, follow and maintain records of a written waste analysis plan, by a used oil processor;
(c) Failing to close or cover a used oil tank or container;
(d) Failing to timely submit annual used oil handling reports, by a used oil processor;
(e) Failing to label each container or tank used for the accumulation or storage of used oil on site, unless otherwise classified;
(f) Failing to keep a written operating record at the facility, by used oil processor;
(g) Failing to prepare and maintain an up-to-date preparedness and prevention plan, by a used oil processor; or
(h) Transporting, processing, re-refining, burning or marketing used oil without first obtaining an EPA ID number.
(3) Class III:
(a) Failing to label one container or tank in which used oil was accumulated on site, if five or more tanks or containers are present;
(b) Failing to label up to two containers used for the accumulation or storage of used oil on site; or
(c) Failing to label a tank having less than 100 gallon capacity when used for the accumulation or storage of used oil on site.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.: ORS 459.995, 468.020, 468.869, 468.870 & 468.996
Stats. Implemented: ORS 459A.580 - 459A.585, 459A.590 & 468.090 - 468.140
Hist.: DEQ 33-1990, f. & cert. ef. 8-15-90; DEQ 21-1992, f. & cert. ef. 8-11-92; DEQ 19-1998, f. & cert. ef. 10-12-98; DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0073
Environmental Cleanup Classification of Violations
(1) Class I: Violating any otherwise unclassified environmental cleanup-related requirements are addressed under OAR 340-012-0053.
(2) Class II: Failing to provide information under ORS 465.250.
Stat. Auth.: ORS 465.280, 465.400 - 465.410, 465.435 & 468.020
Stats. Implemented: ORS 465.210 & 468.090 - 468.140
Hist.: DEQ 22-1988, f. & cert. ef. 9-14-88; DEQ 4-1989, f. & cert. ef. 3-14-89; DEQ 15-1990, f. & cert. ef. 3-30-90; DEQ 21-1992, f. & cert. ef. 8-11-92; DEQ 19-1998, f. & cert. ef. 10-12-98; DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0074
Underground Storage Tank (UST) Cleanup Classification of Violations
(1) Class I:
(a) Failing to report a confirmed release from an UST;
(b) Failing to initiate or complete the investigation or cleanup, or to perform required monitoring, of a release from an UST;
(c) Failing to conduct free product removal;
(d) Failing to properly manage petroleum contaminated soil;
(e) Failing to mitigate fire, explosion or vapor hazards;
(f) Demonstrating negligence or incompetence in performing soil matrix cleanup services; or
(g) Providing or supervising soil matrix cleanup services without obtaining the appropriate license.
(2) Class II:
(a) Failing to report a suspected release from an UST;
(b) Failing to timely submit reports or other documentation from the investigation or cleanup of a release from an UST; or
(c) Failing to timely submit a corrective action plan or submitting an incomplete corrective action plan.
Stat. Auth.: ORS 466.746, 466.994 & 468.020
Stats. Implemented: ORS 466.706 - 466.835 & 466.994
Hist.: DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0079
Heating Oil Tank (HOT) Classification of Violations
(1) Class I:
(a) Failing to report a release from an HOT when the failure is discovered by the department;
(b) Failing to initiate and complete the investigation or cleanup of a release from an HOT;
(c) Failing to initiate and complete free product removal;
(d) Failing to certify that heating oil tank services were conducted in compliance with all applicable regulations, by a service provider;
(e) Failing, by a responsible party or service provider, to conduct corrective action after the department rejects a certified report;
(f) Demonstrating negligence or incompetence in performing HOT services; or
(g) Providing or supervising HOT services without first obtaining the appropriate license.
(2) Class II:
(a) Failing to submit a corrective action plan;
(b) Failing to properly decommission an HOT;
(c) Failing to hold and continuously maintain errors and omissions or professional liability insurance, by a HOT service provider;
(d) Failing to have a supervisor present when performing HOT services;
(e) Failing to report a release from an HOT within 72 hours when the failure is reported to the department by the responsible person or the service provider; or
(f) Offering to provide heating oil tank services without first obtaining the appropriate service provider license.
Stat. Auth.: ORS 466.746, 466.858 - 466.994 & 468.020
Stats. Implemented: ORS 466.706, 466.858 - 466.882, 466.994 & 468.090 - 468.140
Hist.: DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0081
Oil and Hazardous Material Spill and Release Classification of Violations
(1) Class I:
(a) Failing to immediately clean up spills or releases or threatened spills or releases of oil or hazardous materials, by any person having ownership or control over the oil or hazardous materials;
(b) Failing to immediately notify the Oregon Emergency Response System (OERS) of the type, quantity and location of a spill of oil or hazardous material, and corrective and cleanup actions taken and proposed to be taken if the amount of oil or hazardous material released exceeds the reportable quantity, or will exceed the reportable quantity within 24 hours;
(c) Spilling or releasing any oil or hazardous materials which enters waters of the state;
(d) Failing to activate alarms, warn people in the immediate area, contain the oil or hazardous material or notify appropriate local emergency personnel;
(e) Failing to immediately implement a required plan; or
(f) Failing to take immediate preventative, repair, corrective or containment action in the event of a threatened spill or release.
(2) Class II:
(a) Failing to submit a complete and detailed written report to the department of a spill of oil or hazardous material;
(b) Failing to use the required sampling procedures and analytical testing protocols for oil and hazardous materials spills or releases;
(c) Failing to coordinate with the department during the emergency response to a spill after being notified of the department's jurisdiction;
(d) Failing to immediately report spills or releases within containment areas when reportable quantities are exceeded and exemptions are not met under OAR 340-142-0040;
(e) Failing to immediately manage any spill or release of oil or hazardous materials consistent with the National Incident Management System (NIMS);
(f) Improperly or without approval of the Department, treating, diluting or disposing of spill, or spill-related waters or wastes; or
(g) Using chemicals to disperse, coagulate or otherwise treat a spill or release of oil or hazardous materials without prior department approval.
(3) Class III:
(a) Failing to provide maintenance and inspections records of the storage and transfer facilities to the department upon request; or
(b) Failing, by a vessel owner or operator, to make maintenance and inspection records, and oil transfer procedures available to the department upon request.
Stat. Auth.: ORS 466.625 & 468.020
Stats. Implemented: ORS 466.635 - 466.680, 466.992 & 468.090 - 468.140
Hist.: DEQ 1-2003, f. & cert. ef. 1-31-03; DEQ 7-2003, f. & cert. ef. 4-21-03; DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0082
Contingency Planning Classification of Violations
(1) Class I:
(a) Failing to immediately implement the oil spill prevention and emergency response contingency plan or other applicable contingency plan, after discovering a spill;
(b) Operating an onshore or offshore facility without an approved or conditionally approved oil spill prevention and emergency response contingency plan;
(c) Entering into the waters of the state, by a covered vessel without an approved or conditionally approved oil spill prevention and emergency response contingency plan or purchased coverage under an umbrella oil spill prevention and emergency response contingency plan;
(d) Failing to implement prevention measures identified in the facility or covered vessel spill prevention plan that directly results in a spill;
(e) Failing to maintain equipment, personnel and training at levels described in an approved or conditionally approved oil spill prevention and emergency response contingency plan;
(f) Failing to establish and maintain financial assurance as required by statute, rule or order; or
(g) Failing by the owner or operator of an oil terminal facility, or covered vessel, to take all appropriate measures to prevent spills or overfilling during transfer of petroleum or hazardous material products.
(2) Class II:
(a) Failing to submit an oil spill prevention and emergency response contingency plan to the department at least 90 calendar days before beginning operations in Oregon, by any onshore or offshore facility or covered vessel;
(b) Failing to have available on site a simplified field document summarizing key notification and action elements of a required vessel or facility contingency plan;
(c) Failing, by a plan holder, to submit and implement required changes to a required vessel or facility contingency plan following conditional approval;
(d) Failing, by a covered vessel or facility contingency plan holder, to submit the required vessel or facility contingency plan for re-approval at least ninety (90) days before the expiration date of the required vessel or facility contingency plan;
(e) Failing to submit spill prevention strategies as required; or
(f) Failing to obtain department approval of the management or disposal of spilled oil or hazardous materials, or materials contaminated with oil or hazardous material, that are generated during spill response.
(3) Class III:
(a) Failing to provide maintenance and inspections records of the storage and transfer facilities to the department upon request;
(b) Failing, by a vessel owner or operator, to make maintenance and inspection records and oil transfer procedures available to the department upon request;
(c) Failing to have at least one copy of the required vessel or facility contingency plan in a central location accessible at any time by the incident commander or spill response manager;
(d) Failing to have the covered vessel field document available to all appropriate personnel in a conspicuous and accessible location;
(e) Failing to notify the department within 24 hours of any significant changes that could affect implementation of a required vessel or facility contingency plan; or
(f) Failing to distribute amended page(s) of the plan changes to the department within thirty (30) calendar days of the amendment.
Stat. Auth.: ORS 468B.350
Stats. Implemented: ORS 468B.345
Hist.: DEQ 1-2003, f. & cert. ef. 1-31-03; DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0083
Ballast Water Management Classification of Violations
(1) Class I: Discharging of ballast water without authorization.
(2) Class II:
(a) Failing to report ballast water management information to the department at least 24 hours before entering the waters of this state; or
(b) Failing to file an amended ballast water management report after a change in the vessel's ballast water management plan.
Stat. Auth.: ORS 783.600 - 783.992
Stats. Implemented: ORS 783.620
Hist.: DEQ 1-2003, f. & cert. ef. 1-31-03; DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0090 [Renumbered to 340-012-0135]
340-012-0097
Dry Cleaning Classification of Violations
(1) Class I:
(a) Discharging dry cleaning wastewater to a sanitary sewer, storm sewer, septic system, boiler or into waters of the state;
(b) Failing to have a secondary containment system under and around each dry cleaning machine or each tank or container of stored solvent;
(c) Failing to report a release outside of a containment system of more than one pound of dry cleaning solvent released in a 24-hour period;
(d) Failing to repair the cause of a release within a containment system of dry cleaning solvent;
(e) Failing to immediately clean up a release or repair the cause of a release outside of a containment system of dry cleaning solvents or waste water contaminated with solvent;
(f) Illegally treating or disposing hazardous waste generated at a dry cleaning facility;
(g) Transporting, delivering or designating on a manifest, delivery of hazardous waste generated at a dry cleaning facility to a destination facility not authorized or permitted to manage hazardous waste; or
(h) Failing to conduct weekly perchloroethylene leak inspections, and to measure the perchloroethylene refrigerated condenser outlet temperature and log the results, by a dry cleaning owner or operator.
(2) Class II:
(a) Failing to place or store hazardous waste generated at a dry cleaning facility in properly labeled and closed containers;
(b) Accumulating hazardous waste beyond the specified accumulation time period;
(c) Failing, by a dry cleaning owner or operator, to prominently post the Oregon Emergency Response System telephone number so the number is immediately available to all employees of the dry cleaning facility;
(d) Failing to immediately clean up a release within a containment system of dry cleaning solvent or hazardous waste;
(e) Failing to use closed, direct-coupled delivery, by a person delivering perchloroethylene to a dry cleaning facility;
(f) Failing to have closed, direct-coupled delivery for perchloroethylene, by a dry cleaning operator;
(g) Failing to remove all dry cleaning solvent or solvent containing residue or to disconnect utilities from the dry cleaning machine within 45 days of the last day of dry cleaning machine operations; or
(h) Failing to timely submit an annual report to the department, by a dry cleaning owner or operator.
(3) Class III: Failing to notify the department of change of ownership or operator or closure at a dry cleaning business or dry cleaning store.
Stat. Auth.: ORS 466.070 - 466.080, 466.625 & 468.020
Stats. Implemented: ORS 466.635 - 466.680, 466.990, 466.994 & 468.090 - 468.140
Hist.: DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0130
Determination of Violation Magnitude
(1) For each civil penalty assessed, the magnitude is moderate unless:
(a) A selected magnitude is specified in 340-012-0135 and information is reasonably available to the department to determine the application of that selected magnitude; or
(b) The department determines, using information reasonably available to it, that the magnitude should be major under section (3) or minor under section (4).
(2) If the department determines, using information reasonably available to the department, that a general or selected magnitude applies, the department's determination is the presumed magnitude of the violation, but the person against whom the violation is alleged has the opportunity and the burden to prove that another magnitude applies and is more probable than the presumed magnitude.
(3) The magnitude of the violation is major if the department finds that the violation had a significant adverse impact on human health or the environment. In making this finding, the department will consider all reasonably available information, including, but not limited to: the degree of deviation from applicable statutes or commission and department rules, standards, permits or orders; the extent of actual effects of the violation; the concentration, volume, or toxicity of the materials involved; and the duration of the violation. In making this finding, the department may consider any single factor to be conclusive.
(4) The magnitude of the violation is minor if the department finds that the violation had no more than a de minimis adverse impact on human health or the environment, and posed no more than a de minimis threat to human health or other environmental receptors. In making this finding, the department will consider all reasonably available information including, but not limited to: the degree of deviation from applicable statutes or commission and department rules, standards, permits or orders; the extent of actual or threatened effects of the violation; the concentration, volume, or toxicity of the materials involved; and the duration of the violation. In making this finding, the department may consider any single factor to be conclusive.
Stat. Auth.: ORS 468.020 & 468.130
Stats. Implemented: ORS 459.376, 459.995, 465.900, 465.992, 466.990 - 466.994, 468.090 - 468.140 & 468B.450
Hist.: DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0135
Selected Magnitude Categories
(1) Magnitudes for selected Air Quality violations will be determined as follows if sufficient information is reasonably available to the department to make a determination:
(a) Opacity limitation violations:
(A) Major -- Opacity measurements or readings of 20 percent opacity or more over the applicable limitation, or an opacity violation by a federal major source as defined in OAR 340-200-0020;
(B) Moderate -- Opacity measurements or readings greater than 10 percent and less than 20 percent over the applicable limitation; or
(C) Minor -- Opacity measurements or readings of 10 percent or less over the applicable limitation.
(b) Operation of a major source, as defined in OAR 340-200-0020, without first obtaining the required permit: Major -- The Best Achievable Control Technology (BACT) analysis shows need for additional controls and/or if offsets are required.
(c) Air contaminant emission limitation violations for selected air pollutants: Magnitude determinations under this subsection shall be made based upon significant emission rate amounts listed in OAR 340-200-0020 (Tables 2 and 3).
(A) Major:
(i) Exceeding the annual limit as established by permit, rule or order by more than the above amount;
(ii) Exceeding the monthly limit as established by permit, rule or order by more than ten percent of the above amount;
(iii) Exceeding the daily limit as established by permit, rule or order by more than 0.5 percent of the above amount; or
(iv) Exceeding the hourly limit as established by permit, rule or order by more than 0.1 percent of the above amount.
(B) Moderate:
(i) Exceeding the annual limit as established by permit, rule or order by an amount from 50 up to and including 100 percent of the above amount;
(ii) Exceeding the monthly limit as established by permit, rule or order by an amount from five up to and including ten percent of the above amount;
(iii) Exceeding the daily limit as established by permit, rule or order by an amount from 0.25 up to and including 0.50 percent of the above amount; or
(iv) Exceeding the hourly limit as established by permit, rule or order by an amount from 0.05 up to and including 0.10 percent of the above amount.
(C) Minor:
(i) Exceeding the annual limit as established by permit, rule or order by an amount less than 50 percent of the above amount;
(ii) Exceeding the monthly limit as established by permit, rule or order by an amount less than five percent of the above amount;
(iii) Exceeding the daily limit as established by permit, rule or order by an amount less than 0.25 percent of the above amount; or
(iv) Exceeding the hourly limit as established by permit, rule or order by an amount less than 0.05 percent of the above amount.
(d) Violations of Emergency Action Plans: Major -- Major magnitude in all cases.
(e) Violations of on road motor vehicle refinishing rules contained in OAR 340-242-0620: Minor -- Refinishing 10 or fewer on road motor vehicles per year.
(f) Asbestos violations:
(A) Major -- More than 260 lineal feet or more than 160 square feet of asbestos-containing material;
(B) Moderate -- From 40 lineal feet up to and including 260 lineal feet or from 80 square feet up to and including 160 square feet of asbestos-containing material; or
(C) Minor -- Less than 40 lineal feet or 80 square feet of asbestos-containing material.
(D) The magnitude of the asbestos violation may be increased by one level if the material was comprised of more than five percent asbestos.
(g) Open burning violations:
(A) Major -- Initiating or allowing the initiation of open burning of 20 or more cubic yards of commercial, construction, demolition and/or industrial waste; or 5 or more cubic yards of prohibited materials (inclusive of tires); or 10 or more tires;
(B) Moderate -- Initiating or allowing the initiation of open burning of 5 or more, but less than 20 cubic yards of commercial, construction, demolition and/or industrial waste; or 2 or more, but less than 5 cubic yards of prohibited materials (inclusive of tires); or 3 to 9 tires; or if the department lacks sufficient information upon which to make a determination of the type of waste, number of cubic yards or number of tires burned; or
(C) Minor -- Initiating or allowing the initiation of open burning of less than 5 cubic yards of commercial, construction, demolition and/or industrial waste; or less than 2 cubic yards of prohibited materials (inclusive of tires); or 2 or less tires.
(D) The selected magnitude may be increased one level if the department finds that one or more of the following are true, or decreased one level if the department finds that none of the following are true:
(i) The burning took place in an open burning control area;
(ii) The burning took place in an area where open burning is prohibited;
(iii) The burning took place in a non-attainment or maintenance area for PM10 or PM2.5; or
(iv) The burning took place on a day when all open burning was prohibited due to meteorological conditions.
(h) Oregon Low Emission Vehicle Non-Methane Gas (NMOG) or Green House Gas (GHG) fleet average emission limit violations:
(A) Major -- Exceeding the limit by more than 10 percent; or
(B) Moderate -- Exceeding the limit by 10 percent or less.
(2) Magnitudes for selected violations pertaining to Water Quality will be determined as follows if sufficient information is reasonably available to the department to make a determination:
(a) Violating wastewater discharge permit effluent limitations:
(A) Major:
(i) The dilution (D) of the spill or technology based effluent limitation exceedance was less than two, when calculated as follows: D = ((QR /4) + QI)/ QI, where QR is the estimated receiving stream flow and QI is the estimated quantity or discharge rate of the incident;
(ii) The receiving stream flow at the time of the water quality based effluent limitation (WQBEL) exceedance was at or below the flow used to calculate the WQBEL; or
(iii) The resulting water quality from the spill or discharge was as follows:
(I) For discharges of toxic pollutants: CS/D was more than CAcute, where CS is the concentration of the discharge, D is the dilution of the discharge as determined under (2)(a)(A)(i), and CAcute is the concentration for acute toxicity (as defined by the applicable water quality standard);
(II) For spills or discharges affecting temperature, when the discharge temperature is at or above 32 degrees centigrade after two seconds from the outfall; or
(III) For BOD5 discharges: (BOD5)/D is more than 10, where BOD5 is the concentration of the five day Biochemcial Oxygen Demand of the discharge and D is the dilution of the discharge as determined under (2)(a)(A)(i).
(B) Moderate:
(i) The dilution (D) of the spill or the technology based effluent limitation exceedance was two or more but less than 10 when calculated as follows: D = ((QR /4)+ QI )/ QI, where QR is the estimated receiving stream flow and QI is the estimated quantity or discharge rate of the discharge; or
(ii) The receiving stream flow at the time of the WQBEL exceedance was greater than, but less than twice, the flow used to calculate the WQBEL.
(C) Minor:
(i) The dilution (D) of the spill or the technology based effluent limitation exceedance was 10 or more when calculated as follows: D = ((QR/4) + QI)/ QI, where QR is the receiving stream flow and QI is the quantity or discharge rate of the incident; or
(ii) The receiving stream flow at the time of the WQBEL exceedance was twice the flow or more of the flow used to calculate the WQBEL.
(b) Violating numeric water-quality standards:
(A) Major:
(i) Increased the concentration of any pollutant except for toxics, dissolved oxygen, pH, and turbidity, by 25 percent or more of the standard;
(ii) Decreased the dissolved oxygen concentration by two or more milligrams per liter below the standard;
(iii) Increased the toxic pollutant concentration by any amount over the acute standard or by 100 percent or more of the chronic standard;
(iv) Increased or decreased pH by one or more pH units from the standard; or
(v) Increased turbidity by 50 or more nephelometric turbidity units (NTU) over background.
(B) Moderate:
(i) Increased the concentration of any pollutant except for toxics, pH, and turbidity by more than 10 percent but less than 25 percent of the standard;
(ii) Decreased dissolved oxygen concentration by one or more, but less than two, milligrams per liter below the standard;
(iii) Increased the concentration of toxics pollutants by more than 10 percent but less than 100 percent of the chronic standard;
(iv) Increased or decreased pH by more than 0.5 pH unit but less than 1.0 pH unit from the standard; or
(v) Increased turbidity by more than 20 but less than 50 NTU over background.
(C) Minor:
(i) Increased the concentration of any pollutant, except for toxics, pH, and turbidity, by 10 percent or less of the standard;
(ii) Decreased the dissolved oxygen concentration by less than one milligram per liter below the standard;
(iii) Increased the concentration of toxic pollutants by 10 percent or less of the chronic standard;
(iv) Increased or decreased pH by 0.5 pH unit or less from the standard; or
(v) Increased turbidity by 20 NTU or less over background.
(c) The selected magnitude under (2)(a) or (b) may be increased one level if the violation:
(i) Occurred in a water body that is water-quality limited (listed on the most current 303(d) list) and the discharge is the same pollutant for which the water body is listed;
(ii) Depressed oxygen levels or increased turbidity and/or sedimentation in a stream in which salmonids may be rearing or spawning as indicated by the beneficial use maps available at OAR 340-041-0101 through 0340;
(iii) Violated a bacteria standard either in shell-fish growing waters or during the period from June 1 through September 30; or
(iv) Resulted in a documented fish or wildlife kill.
(3) Magnitudes for selected violations pertaining to Solid Waste will be determined as follows if sufficient information is reasonably available to the department to make a determination:
(a) Operating a solid waste disposal facility without a permit:
(A) Major -- The volume of material disposed of exceeds 400 cubic yards;
(B) Moderate -- The volume of material disposed of is greater than or equal to 40 cubic yards and less than or equal to 400 cubic yards; or
(C) Minor -- The volume of materials disposed of is less than 40 cubic yards.
(D) The magnitude of the violation may be raised by one magnitude if the material disposed of was either in the floodplain of waters of the state or within 100 feet of waters of the state.
(b) Failing to accurately report the amount of solid waste disposed:
(A) Major -- The amount of solid waste is underreported by 15 percent or more of the amount received;
(B) Moderate -- The amount of solid waste is underreported by 5 percent or more, but less than 15 percent, of the amount received; or
(C) Minor -- The amount of solid waste is underreported by less than 5 percent of the amount received.
(4) Magnitudes for selected violations pertaining to Hazardous Waste will be determined as follows if sufficient information is reasonably available to the department to make a determination:
(a) Failure to make a hazardous waste determination:
(A) Major -- Failure to make the determination on five or more waste streams;
(B) Moderate -- Failure to make the determination on three or four waste streams; or
(C) Minor -- Failure to make the determination on one or two waste streams.
(b) Hazardous Waste treatment and disposal violations OAR 340-012-0068(1)(b), (c), (h), (k), (l), (m), (p), (q) and (r):
(A) Major:
(i) Treatment or disposal of more than 55 gallons or 330 pounds of hazardous waste; or
(ii) Treatment or disposal of more than three gallons or 18 pounds of acutely hazardous waste.
(B) Moderate:
(i) Treatment or disposal of 55 gallons or 330 pounds or less of hazardous waste; or
(ii) Treatment or disposal of three gallons or 18 pounds or less of acutely hazardous waste.
(c) Hazardous waste management violations OAR 340-012-0068(1)(d), (e) (f), (g), (i), (j), (n), and (2)(a), (b), (d), (e), (h), (i), (k), (m), (n), (o), (p), (r) and (s):
(A) Major:
(i) Hazardous waste management violations involving more than 1,000 gallons or 6,000 pounds of hazardous waste; or
(ii) Hazardous waste management violations involving more than 20 gallons or 120 pounds of acutely hazardous waste.
(B) Moderate:
(i) Hazardous waste management violations involving more than 250 gallons or 1,500 pounds, up to and including 1,000 gallons or 6,000 pounds of hazardous waste; or
(ii) Hazardous waste management violations involving more than 5 gallons or 30 pounds, up to and including 20 gallons or 60 pounds of acutely hazardous waste.
(C) Minor:
(i) Hazardous waste management violations involving 250 gallons or 1,500 pounds or less of hazardous waste; or
(ii) Hazardous waste management violations involving 5 gallons or 30 pounds or less of acutely hazardous waste.
(5) Magnitudes for selected Used Oil violations (OAR 340-012-0072) will be determined as follows if sufficient information is reasonably available to the department to make a determination:
(a) Used Oil violations OAR 340-012-0072(1)(f), (h), (i), (j); and (2)(a) through (j):
(A) Major -- Used oil management violations involving more than 1,000 gallons or 7,000 pounds of used oil or used oil mixtures;
(B) Moderate -- Used oil management violations involving more than 250 gallons or 1,750 pounds, up to and including 1,000 gallons or 7,000 pounds of used oil or used oil mixture; or
(C) Minor -- Used oil management violations involving 250 gallons or 1,750 pounds or less of used oil or used oil mixtures.
(b) Used Oil spill or disposal violations OAR 340-012-0072(1)(a) through (e), (g) and (k):
(A) Major -- A spill or disposal involving more than 420 gallons or 2,940 pounds of used oil or used oil mixtures;
(B) Moderate -- A spill or disposal involving more than 42 gallons or 294 pounds, up to and including 420 gallons or 2,940 pounds of used oil or used oil mixtures; or
(C) Minor -- A spill or disposal of used oil involving 42 gallons or 294 pounds or less of used oil or used oil mixtures.
[ED. NOTE: Tables & Publications referenced are available from the agency.]
Stat. Auth.: ORS 468.065 & 468A.045
Stats. Implemented: ORS 468.090 - 468.140 & 468A.060
Hist.: DEQ 21-1992, f. & cert. ef. 8-11-92; DEQ 4-1994, f. & cert. ef. 3-14-94; DEQ 19-1998, f. & cert. ef. 10-12-98; DEQ 1-2003, f. & cert. ef. 1-31-03; Renumbered from 340-012-0090, DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06; DEQ 6-2006, f. & cert. ef. 6-29-06
340-012-0140
Determination of Base Penalty
(1) Except for Class III violations and for penalties assessed under OAR 340-012-0155, the base penalty (BP) is determined by applying the type, class and magnitude of the violation to the matrices set forth in this section. For Class III violations, no magnitude determination is required.
(2) $8,000 Penalty Matrix:
(a) The $8,000 penalty matrix applies to the following:
(A) Any violation of an air quality statute, rule, permit or related order committed by a person that has or should have a Title V permit or an Air Contaminant Discharge Permit (ACDP) issued pursuant to New Source Review (NSR) regulations or Prevention of Significant Deterioration (PSD) regulations, or section 112(g) of the federal Clean Air Act.
(B) Open burning violations as follows:
(i) Any violation of an open burning statute, rule, permit or related order committed by a permitted industrial facility.
(ii) Any violation of OAR 340-264-0060(3) in which 25 or more cubic yards of prohibited materials or more than 15 tires are burned, except when committed by a residential owner-occupant.
(C) Any violation of the Oregon Low Emission Vehicle rules (OAR 340-257) by an automobile manufacturer.
(D) Any violation of 468B.025(1)(a) or (1)(b), or of ORS 468B.050(1)(a) by a person without an National Pollutant Discharge Elimination System (NPDES) permit.
(E) Any violation of a water quality statute, rule, permit or related order by:
(i) A person that has a NPDES permit, or that has or should have a Water Pollution Control Facility (WPCF) permit, for a municipal or private utility sewage treatment facility with a permitted flow of five million or more gallons per day.
(ii) A person that has a major industrial source NPDES permit.
(iii) A person that has a population of 100,000 or more, as determined by the most recent national census, and either has or should have a WPCF Municipal Stormwater Underground Injection Control (UIC) System Permit, or has a NPDES Municipal Separated Storm Sewer Systems (MS4) Stormwater Discharge Permit.
(iv) A person that has or should have a WPCF permit for a major vegetable or fruit processing facility, for a major mining operation involving over 500,000 cubic yards per year, or for any mining operation using chemical leaching or froth flotation.
(v) A person that installs or operates a prohibited Class I, II, III, IV or V UIC system, except for a cesspool.
(F) Any violation of an underground storage tanks statute, rule, permit or related order committed by the owner, operator or permittee of 10 or more UST facilities or a person who is licensed or should be licensed by the department to perform tank services.
(G) Any violation of a heating oil tank statute, rule, permit, license or related order committed by a person who is licensed or should be licensed by the department to perform heating oil tank services.
(H) Any violation of ORS 468B.485, or related rules or orders regarding financial assurance for ships transporting hazardous materials or oil.
(I) Any violation of a used oil statute, rule, permit or related order committed by a person who is a used oil transporter, transfer facility, processor or re-refiner, off-specification used oil burner or used oil marketer.
(J) Any violation of a hazardous waste statute, rule, permit or related order by:
(i) A person that is a large quantity generator or hazardous waste transporter.
(ii) A person that has or should have a treatment, storage or disposal facility permit.
(K) Any violation of an oil and hazardous material spill and release statute, rule, or related order.
(L) Any violation of a polychlorinated biphenyls (PCBs) management and disposal statute, rule, permit or related order.
(M) Any violation of ORS Chapter 465, UST or environmental cleanup statute, rule, related order or related agreement.
(N) Unless specifically listed under another penalty matrix, any violation of ORS Chapter 459 or any violation of a solid waste statute, rule, permit, or related order committed by:
(i) A person that has or should have a solid waste disposal permit.
(ii) A person with a population of 25,000 or more, as determined by the most recent national census.
(b) The base penalty values for the $8,000 penalty matrix are as follows:
(A) Class I:
(i) Major -- $8000;
(ii) Moderate -- $4000;
(iii) Minor -- $2000.
(B) Class II:
(i) Major -- $4000;
(ii) Moderate -- $2000;
(iii) Minor -- $1000.
(C) Class III: $750.
(3) $6,000 Penalty Matrix:
(a) The $6,000 penalty matrix applies to the following:
(A) Any violation of an air quality statute, rule, permit or related order committed by a person that has or should have an ACDP permit, except for NSR, PSD and Basic ACDP permits.
(B) Any violation of an asbestos statute, rule, permit or related order except those violations listed in section (5) of this rule.
(C) Any violation of a vehicle inspection program statute, rule, permit or related order committed by an auto repair facility.
(D) Any violation of the Oregon Low Emission Vehicle rules (OAR 340-257) by an automobile dealer or an automobile rental agency.
(E) Any violation of a water quality statute, rule, permit or related order committed by:
(i) A person that has a NPDES Permit, or that has or should have a WPCF Permit, for a municipal or private utility sewage treatment facility with a permitted flow of two million or more, but less than five million, gallons per day.
(ii) A person that has a minor industrial source NPDES Permit, or has or should have a WPCF Permit, for an industrial source.
(iii) A person that has or should have applied for coverage under an NPDES or a WPCF General Permit, except an NPDES Stormwater Discharge 1200-C General Permit for a construction site of one acre or more, but less than five acres in size and except for an NPDES 700-PM General Permit for suction dredges.
(iv) A person that has a population of less than 100,000 but more than 10,000, as determined by the most recent national census, and has or should have a WPCF Municipal Stormwater UIC System Permit or has an NPDES MS4 Stormwater Discharge Permit.
(v) A person that has or should have a WPCF permit for a mining operation involving from 100,000 up to 500,000 cubic yards other than those operations using chemical leachate or froth flotation.
(vi) A person that owns, and that has or should have registered, a UIC system that disposes of wastewater other than stormwater or sewage.
(F) Any violation of an UST statute, rule, permit or related order committed by a person who is the owner, operator or permittee of five to nine UST facilities.
(G) Unless specifically listed under another penalty matrix, any violation of ORS Chapter 459 or other solid waste statute, rule, permit, or related order committed by:
(i) A person that has or should have a waste tire permit; or
(ii) A person with a population of more than 5,000 but less than or equal to 25,000, as determined by the most recent national census.
(H) Any violation of a hazardous waste management statute, rule, permit or related order committed by a person that is a small quantity generator.
(b) The base penalty values for the $6,000 penalty matrix are as follows:
(A) Class I:
(i) Major -- $6,000.
(ii) Moderate -- $3,000.
(iii) Minor -- $1,500.
(B) Class II:
(i) Major -- $3,000.
(ii) Moderate -- $1,500.
(iii) Minor -- $750.
(C) Class III: $500.
(4) $2,500 Penalty Matrix:
(a) The $2,500 penalty matrix applies to the following:
(A) Any violation of any statute, rule, permit, license, or order committed by a person not listed under another penalty matrix.
(B) Any violation of an air quality statute, rule, permit or related order committed by a person not listed under another penalty matrix.
(C) Any violation of OAR 340-264-0060(3) in which 25 or more cubic yards of prohibited materials or more than 15 tires are burned by a residential owner-occupant.
(D) Any violation of a vehicle inspection program statute, rule, permit or related order committed by a natural person, except for those violations listed in section (5) of this rule.
(E) Any violation of a water quality statute, rule, permit, license or related order not listed under another penalty matrix and committed by:
(i) A person that has an NPDES permit, or has or should have a WPCF permit, for a municipal or private utility wastewater treatment facility with a permitted flow of less than two million gallons per day.
(ii) A person that has or should have applied for coverage under an NPDES Stormwater Discharge 1200-C General Permit for a construction site that is more than one, but less than five acres.
(iii) A person that has a population of 10,000 or less, as determined by the most recent national census, and either has an NPDES MS4 Stormwater Discharge Permit or has or should have a WPCF Municipal Stormwater UIC System Permit.
(iv) A person who is licensed to perform onsite sewage disposal services or who has performed sewage disposal services.
(v) A person, except for a residential owner-occupant, that owns and either has or should have registered a UIC system that disposes of stormwater or sewage.
(vi) A person that has or should have a WPCF individual stormwater UIC system permit.
(F) Any violation of an onsite sewage disposal statute, rule, permit or related order, except for a violation committed by the residential owner-occupant.
(G) Any violation of an UST statute, rule, permit or related order if the person is the owner, operator or permittee of two to four UST facilities. (continued)