Loading (50 kb)...'
(continued) dence and other information related to an ocean shore violation;
(3) Policies and Procedures -- the Director may develop and publish policies, procedures, findings and recommendations for use in identifying and correcting violations of the ocean shore statutes, rules, standards, permits and orders;
(4) Proposed Orders -- the Director may issue proposed orders directing action, setting time lines, or establishing conditions on a responsible party related to an ocean shore violation by:
(a) Giving notice of the proposed order by personal service or registered or certified mail to the responsible party; and
(b) Holding a contested case hearing if any person aggrieved by the proposed order makes written request for a hearing within 20 days of personal service or mailing of the proposed order.
(5) Civil Proceedings -- the Director may bring civil abatement proceedings against a responsible party for violations of the ocean shore statutes, rules, standards or a permit or an order of the Director. In bringing such proceedings against a responsible party, the Director:
(a) Shall file with the court, a statement:
(A) Describing the notice given the responsible party and when the notice was issued;
(B) Indicating the date of the contested case hearing and whether or not the responsible party appeared, and if so, a summary or transcript of the hearing;
(C) Specifying the public nuisance arising from the violation;
(D) Indicating the statute(s), rule(s) or standard(s) violated and including a copy of the Director's permit or order, if applicable, and identifying the specific terms and conditions of the permit or order being violated; and
(E) Describing the damages and impacts, if any, to ocean shore resource values including public rights of navigation, fisheries and recreation.
(b) May request the court to order the responsible party to pay to the Department an amount of money necessary to repair any damages or compensate the public for loss or impairment of the public's interest in navigation, fishery or recreation resulting from the violation.
(6) Cease and Desist Order -- where a responsible party is violating ocean shore statutes, rules, standards, or a permit or order of the Director, the Director may issue an order to cease and desist if the Director determines that the responsible party's actions risk imminent and substantial injury, loss or damage to ocean shore values. An order to cease and desist:
(a) May be issued without prior notice or hearing;
(b) Shall be served on the responsible party by personal delivery or by registered or certified mail, and if by mail, the service date shall be the date of mailing;
(c) Shall advise the responsible party of the right to a contested case hearing if a written request is received within 10 days of service of the order;
(d) Shall not be stayed during the hearing, if one is requested;
(e) May direct the responsible party to take immediate specific actions to minimize or avoid further injury, loss or damage to the ocean shore;
(f) Shall be entered as the final order if the responsible party does not request a hearing or fails to appear at a scheduled hearing;
(g) Shall not result in any liability to the Commission, Director or the Department from damages to the responsible party arising from the order; and
(h) Shall be enforceable by state and local police without need for further authority or warrant.
(7) Permit Revocation -- the Director may revoke, suspend or refuse to renew any permit issued under ORS 390.650 if the Director determines the permittee is in violation of the conditions of the permit. The Director shall state the case for revoking or suspending a permit in a proposed order. The proposed order:
(a) Shall be served on the permittee in person or by registered or certified mail;
(b) Shall advise the permittee of the opportunity to request a contested case hearing within 20 days of service of the proposed order where the service date shall be the date of service in person or the date of mailing;
(c) Shall become the final order if the permittee fails to request a hearing or fails to appear at a scheduled hearing.
(8) Civil Abatement of Public Nuisance -- improvements, additions, modifications or alterations made on the ocean shore, or pipelines, cables and conduits constructed across or under the ocean shore or natural products removed from the ocean shore without a permit issued under 390.650, or that do not comply with the conditions in a permit issued under ORS 390.650, are a public nuisance. Under this section:
(a) The Director, or any person, may initiate civil abatement proceedings against the party responsible for a public nuisance except that:
(A) No person may begin such an action if the Director has already begun and is pursuing criminal, civil, or administrative proceedings in the same matter; and
(B) Any person shall give the Director not less than 60 days notice prior to initiating such action.
(b) The Director may seek a temporary restraining order or a preliminary injunction when a public nuisance creates an emergency or threatens the public health, welfare or safety. In seeking a temporary restraining order or preliminary injunction, the Director shall file with the court, a statement:
(A) Describing the notice, if any, given the responsible party and when the notice was issued;
(B) Indicating the date of the contested case hearing, if any, and whether or not the responsible party appeared, and if so, a summary or transcript of the hearing;
(C) Specifying the public nuisance arising from the violation;
(D) Indicating the statute(s), rule(s) or standard(s) violated and including a copy of the Director's permit or order, if applicable, and identifying the specific terms and conditions of the permit or order being violated;
(E) Describing the damages and impacts, if any, to ocean shore resource values including public rights of navigation, fisheries and recreation;
(F) Explaining how the public nuisance arising from the violation constitutes an emergency and threatens the public health, welfare or safety; and
(G) Specifying the particular measures the responsible party shall take immediately to protect the public health, welfare and safety.
(c) No liability shall accrue to the Commission, the Department, or any of its employees or agents for any damages, loss, expense, or inconvenience sustained by a responsible party resulting from a restraining order, injunction or abatement order issued under this section;
(d) Any plaintiff in a public nuisance abatement proceeding may seek from the court a monetary award in an amount necessary to repair any damages and compensate the public for loss or impairment of the public's interest in and right of navigation, fishery or recreation resulting from the public nuisance;
(e) The Director may seek from the court in a civil abatement proceeding where the responsible party is determined to have, through negligence, violated ORS 390.640 requiring permits for improvements on the ocean shore, double the amount of money necessary to compensate the public for any damage, loss, destruction or infringement on the public right of navigation, fishery or recreation;
(f) The Director may seek from the court in a civil abatement proceeding where the responsible party is determined to have intentionally violated ORS 390.640 requiring permits for improvements on the ocean shore, triple the amount of money necessary to compensate the public for any damage, loss, destruction or infringement on the public right of navigation, fishery or recreation;
(g) The award of damages in civil abatement proceedings on an ocean shore violation, shall not preclude the Department from pursuing criminal penalties for the same violation.
Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: PRD 7-2000, f. & cert. ef. 5-10-00
736-020-0110
Disposition of Fees and Penalties
(1) The Department shall establish an account for fees and penalties collected by the Department, or awarded by the court(s), in the administration of the ocean shore statutes. The moneys in this account shall be dedicated to the ocean shore program and shall be continually appropriated to the Department to be used, in priority order, highest to lowest, for:
(a) Administering the Department's ocean shore permitting program;
(b) Preserving and protecting the scenic, recreational and other natural resource values of the ocean shore, including preserving, protecting and restoring native species and habitats including rare, threatened, or endangered species and their habitats;
(c) Providing public education about the ocean shore;
(d) Promoting public safety on the ocean shore;
(e) Providing information and assistance to oceanfront landowners; and
(f) Any other purpose the Director may deem appropriate in promoting the ocean shore policy in ORS 390.610 through 390.635.
(2) The fees and penalties that shall be deposited into the ocean shore account shall include:
(a) Application fees collected in accordance with ORS 390.650(7);
(b) That portion of just compensation fees collected in accordance with ORS 390.715(1) and 390.725(1) necessary to cover the Department's administrative costs, including processing the application, issuing and administering the permit and monitoring the project;
(c) Civil penalties collected in accordance with Oregon Laws 1999, Chapter 373, Sections (9), (10), and (11);
(d) Court awarded settlements in civil abatement proceedings in accordance with Oregon Laws 1999, Chapter 373, Sections (13) and (16); and
(e) Court awarded settlements to any plaintiff in civil abatement proceedings in accordance with Oregon Laws 1999, Chapter 373, Section (15).
Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: PRD 7-2000, f. & cert. ef. 5-10-00
736-020-0120
Administrative Relief, Appeals, Judicial Review
(1) Where an application for an improvement permit required under ORS 390.640, or a permit for a pipeline, cable or conduit crossing of the ocean shore required under ORS 390.715, or a permit for removal of products from the ocean shore required under ORS 390.725, is denied, the applicant may request a hearing from the Director. Where a permit is issued under ORS 390.650, any person aggrieved by the issuance of the permit or conditions imposed on the permit, may request a hearing from the Director. The application denial or permit approval shall be considered the Director's original order.
(2) Requests for hearing described in section (1) of this rule shall be in writing and shall:
(a) Include a clear statement of the reason(s) for the request;
(b) If the request is being made by a person other than the applicant, include a clear statement of the person's legally protected interest and how that interest is adversely affected by the issuance of the permit; and
(c) Be received by the Director within 30 days of service of the order denying or granting the permit. The date of service shall be the date of delivery of the order in person, or the date of mailing.
(3) A hearing held in response to a request under this rule shall be conducted as a contested case in accordance with the provisions of ORS 183.415 to 183.430, 183.440 to 183.460, and 183.470.
(4) Within 30 days of the receipt of a request for hearing, the Director shall schedule a hearing to be held at such time as is agreeable to the person making the request and such other persons as may be parties to the hearing. The applicant shall be a party to any contested case hearing requested by a person other than the applicant. The Director may enter a written agreement with the applicant and any parties to delay the hearing in order to resolve any matters in dispute through mediation or some other form of alternative dispute resolution.
(5) The Director shall enter a final order within 45 days after the contested case hearing. The final order shall affirm, modify or rescind the Director's original order denying the application or approving the permit.
(6) Jurisdiction for judicial review of contested cases is conferred upon the Court of Appeals. A party may initiate an appeal of a final order in a contested case proceeding by filing a petition in the Court of Appeals within 60 days following the date of the order as provided by ORS 183.482.
(7) A decision applying the standards of OAR 736-020-0010 is not a "land use decision" as defined by ORS 197.015(10) that is subject to the jurisdiction of the Land Use Board of Appeals pursuant to ORS 197.825.
Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: PRD 7-2000, f. & cert. ef. 5-10-00
--------------------------------------------------------------------------------
The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use