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State
Oregon
OAR Division 80 CIVIL PENALTY ASSESSMENT FOR OCEAN SHORE VIOLATIONS





The Oregon Administrative Rules contain OARs filed through July 14, 2006

PARKS AND RECREATION DEPARTMENT

DIVISION 80

CIVIL PENALTY ASSESSMENT FOR OCEAN SHORE VIOLATIONS

736-080-0005

Scope and Purpose

(1) The purpose of these rules is to describe the procedures for imposing and enforcing civil penalties for violations of state ocean shore statutes, regulations, permits and orders. Definitions, notice requirements, a penalty schedule and hearing process are included in these rules.

(2) These rules are intended to carry out the authority granted to the Director by ORS 390.605 et seq. The civil penalty authority described in these rules is in addition to other authorities and corrective actions available to the Director and the Department regarding violations of ocean shore statutes and regulations.

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

736-080-0010

Definitions

(1) "Alteration" -- means "improvement" as that term is defined by statute, ORS 390.605(1), and included in these definitions at OAR 736-080-0010 (8).

(2) "After the Fact Application" -- means an application for an alteration permit under ORS 390.640, a permit for a pipeline, cable or conduit crossing of the ocean shore under ORS 390.715, or an ocean shore product removal permit under ORS 390.725, that is made after the alteration or activity for which the permit is issued has already begun or has been completed.

(3) "Civil Penalty" -- means a monetary penalty imposed by the Director for violation of ocean shore statutes, rules, standards, permit conditions or an order of the Director;

(4) "Commission" -- means the Oregon Parks and Recreation Commission;

(5) "Continuing Notice"-- means that a notice of violation, once issued to a responsible party, continues in effect for a designated period and need not be reissued for the same or similar violation before a notice of civil penalty can be issued.

(6) "Department" -- means the Oregon Parks and Recreation Department;

(7) "Director" -- means the Oregon Parks and Recreation Director;

(8) "Improvement" -- means filling a portion of the ocean shore, removal of material from the ocean shore or a structure, appurtenance or other addition, modification or alteration constructed, placed or made on or to the land (ORS 390.605(1)). For the purpose of these rules, the term "alteration" shall be used in place of "improvement" except as otherwise specified in these rules;

(9) "Ocean Shore" -- means the land lying between extreme low tide of the Pacific Ocean and the statutory vegetation line as described by ORS 390.770 or the line of established upland shore vegetation, whichever is farther inland. "Ocean shore" does not include an estuary as defined in ORS 196.800.

(10) "Property" -- means an upland building, road, street, highway, sewer or water line, or other infrastructure development.

(11) "Responsible Party" -- means the person(s), including the applicant or permittee and their contractors or agents, or the company, organization, local, state or federal agency, or other entity, that is in violation of the ocean shore statutes, rules, standards, permit conditions or order of the Director, pertaining to an alteration on the ocean shore.

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

736-080-0020

Civil Penalty Policy

(1) Upon the Director's own initiative, or in response to a complaint of an alleged violation of ocean shore statutes, rules, standards, permit conditions, or Director's order, the Director may investigate, including entering at reasonable times upon lands within the ocean shore, including private property within the ocean shore, to determine if a violation has occurred and to ascertain the nature, extent, severity and other factors of the violation. The Director, or the Director's agents, shall not enter upon private property landward of the ocean shore without the property owners permission. When landowner permission is not forthcoming and access through the property landward of the ocean shore is necessary to investigate, assess and prescribe remedies for suspected or known ocean shore violations, the Director, his staff or agents, may enter such property when accompanied by appropriate law officers bearing a court issued search warrant or other appropriate authorization;

(2) Upon a determination that a violation has occurred, the Director shall observe the procedures set forth in these rules and may impose a civil penalty against the party responsible for the violation. The Director may waive a civil penalty as provided in section (3) of this rule. The Director bears the burden of proof to establish that a violation has or is occurring. Imposing a civil penalty under these rules for an ocean shore violation shall not preclude the Director from pursuing other regulatory or penalty actions provided by law.

(3) Timely compliance with the ocean shore statutes and regulations and avoidance of long-term or irreversible impacts to the scenic, recreation and natural resources of the ocean shore is the Department's goal in dealing with violations. At the Director's discretion, imposition of a civil penalty may be waived where the responsible party responds with timely compliance or voluntary restitution, where these actions are acceptable to the Department, and where they avoid long-term or irreversible impacts to the public health, safety and welfare , scenic, recreation, natural resource and economic values of the ocean shore.

(4) Civil penalties imposed under this rule apply to violations of ocean shore statutes, rules, orders, and permits included in, implementing, or issued in accordance with ORS 390.610, 390.620 to 390.660, 390.690, and 390.705 to 390.770. This includes ocean shore alteration permits issued under ORS 390.640, permits for pipe, cable, or conduit crossings of the ocean shore issued under ORS 390.715, and permits for removal of products along the ocean shore issued under ORS 390.725.

(5) Where a civil penalty is imposed for alterations made on the ocean shore without a permit, the civil penalty shall be in addition to and not in-lieu of application fees for an after the fact application.

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

736-080-0030

Notice of Violation

(1) The party responsible for an ocean shore violation, or the landowner if the violation occurs on private property within the ocean shore, shall be notified of the violation at such time as the Director determines a violation has occurred. Notice has been given when the notice of violation has been delivered to the responsible party in person or mailed to the responsible party by certified or registered mail.

(2) The notice of violation shall include:

(a) The statute(s), rule(s), permit condition(s), standard(s) or order violated;

(b) A description of the violation;

(c) The date the violation occurred or was observed;

(d) The address, legal description or other locational description of the property where the violation occurred;

(e) The specified time(s) for correction of the violation; and

(f) The specific actions to be taken to correct the violation. The specific corrective actions set forth in the violation notice may include all or any combination of the following options in addition to any other measures the Director may deem appropriate:

(A) Filing an after the fact application, except in those cases where the proposed project is prohibited by statute or rule;

(B) Removing the ocean shore project in violation; and

(C) Taking initial corrective measures specified in the violation notice as necessary to promote the public health, safety and welfare and avoid, prevent or minimize damage to the ocean shore and its natural, scenic, recreational, and economic values.

(g) The date on which a civil penalty will start accruing if the violation is not corrected as described in subsections (e) and (f) of this rule, except that the Director may decide to impose a civil penalty as described in section (4) of this rule even in cases where appropriate and timely corrective action is taken.

(3) If the responsible party corrects the violation within the required time and as specified in the notice of violation, the Director may waive the imposition of a civil penalty.

(4) If the violation is not corrected in the time specified in the violation notice, or if the Director determines that the violation is willful, flagrant, of substantial or long-term impact, or that the responsible party is a repeat violator, the Director may impose a civil penalty according to the procedures described in these rules.

(5) Each day a violation continues after the time for correction specified in the violation notice, shall be considered a new day for purposes of assessing a civil penalty. The maximum civil penalty is $10,000 per day of continuing 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

736-080-0040

Continuing Notice of Violation and Repeat Violations

A notice of violation shall be considered a continuing notice for a period of three years following the date of the notice. A person or agency commits a repeat violation if they make an alteration on the ocean shore without a permit issued under ORS 390.650, or violate an ocean shore standard or a condition in a permit or order within the three year period following a previous notice of violation. In the case of a repeat violation, a civil penalty may be imposed without providing the opportunity for correction.

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

736-080-0050

Determination of Civil Penalty

Civil penalties shall be computed using the following formula; P = BF x C x V x F x I , where:

(1) "P" is the amount of penalty in dollars;

(2) "BF" is the base fine which shall be $500;

(3) "C" shall indicate the level of cooperation of the responsible party in resolving the violation where:

(a) A value of 1 shall indicate the responsible party is highly cooperative, timely and diligent in applying the corrective measures directed by the Department;

(b) A value of 2 shall indicate the responsible party is moderately cooperative but either failed to meet the time frame for correction or failed to apply the corrective measures directed by the Department; and

(c) A value of 3 shall indicate the responsible party is uncooperative and both failed to meet the time frame or apply the corrective measures directed by the Department;

(4) "V" indicates the number of prior violations, including the extant one, of any of the statutes cited in 736-080-0020(4), or any rule implementing these statutes, or any order or permit arising from the administration of these statutes or rules. "V" shall not exceed a value of 5.

(5) "F" indicates the familiarity or prior experience with or knowledge of the statutes, rules, standards, orders or permits affecting alterations and development on the ocean shore:

(a) A value of 1 shall indicate the responsible party had no prior familiarity, experience or knowledge of the ocean shore statutes, rules, permits or standards; and

(b) A value of 2 shall indicate the responsible party did have prior familiarity, experience or knowledge of ocean shore laws and regulations and knowingly violated those provisions.

(6) "I" indicates the impact of the violation on the public interest in navigation, fisheries, recreation and other ocean shore resources including aesthetic values, scenic landforms, wildlife, wildlife habitat, plant life, threatened and endangered species, combined with the duration or permanency of the impacts of the violation. In determining the impact value, where the resource impact and the duration impact are not the same, the higher value of the two shall be used.

(a) A value of 1 shall indicate the violation has no, or only minor impacts on the ocean shore values and resources listed in section (6) of this rule and that impacts of the violation will be of minor duration (less than one year).

(b) A value of 2 shall indicate the violation has moderate impacts on the ocean shore values and resources listed in section (6) of this rule or that impacts of the violation will have moderate duration (from 1 to 3 years);

(c) A value of 3 shall indicate the violation has major impacts on the ocean shore values and resources listed in section (6) of this rule or that impacts of the violation will last more than three years.

(7) The maximum civil penalty that may be imposed under these rules is $10,000 per day of continuing 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

736-080-0060

Notice of Civil Penalty

(1) Persons or agencies who have received a notice of violation under OAR 736-080-0030, but have not corrected, or have only partially corrected the violation by the time specified in the notice, or who have committed a repeat violation under a continuing notice, may be assessed a civil penalty. Notice of a civil penalty shall be delivered to the responsible party either in person or by registered or certified mail. Where the notice is made by mail, the date of mailing shall be considered the date of service.

(2) The notice of civil penalty shall include:

(a) A reference to the particular section(s) of the statutes, rules, standards, order or permit conditions involved;

(b) A short and plain statement of the matters asserted or charged;

(c) A statement of the amount of civil penalty being imposed; and

(d) A statement of the responsible party's right to request a hearing.

(3) If a violation is not corrected by the time specified in the notice of violation, a civil penalty may be imposed each day the violation goes uncorrected.

(4) If the violation is committed under a continuing notice of violation, no additional notice is required prior to the assessment of a civil penalty.

(5) The notice of civil penalty shall be accompanied by a proposed order setting forth the facts of the case and presenting findings and conclusions in support of the civil penalty being assessed. The proposed order shall become final if the responsible party does not request a hearing.

(6) The Director may mitigate the civil penalty if the Director determines that to do so would benefit the public interest and advance the policy of protecting and preserving the scenic and recreational value of the ocean shore. The Director shall specify the terms and conditions incumbent upon a responsible party if a civil penalty is mitigated.

(7) If a responsible party requests the Director reduce or remit the civil penalty for economic or financial reasons, the responsible party has the burden of proof to provide evidence of economic or financial condition that warrants reducing or remitting the civil penalty.

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

736-080-0070

Opportunity for Hearing/Judicial Review

(1) A person or agency receiving a notice of civil penalty may request a hearing by making written application to the Department within 20 days of the service date of the notice. The service date of the notice shall be the date of mailing. If mailed, a request for hearing shall be considered made on the date the request is postmarked. If the postmarked date exceeds 20 days after the service date of the notice, the responsible party's right to a contested case hearing shall be waived.

(2) If a responsible party fails to request a hearing or makes an untimely request, a final order may be issued upon prima facie case made on the record of the Department.

(3) If a hearing is requested timely, it shall be scheduled and conducted according to contested case procedures. Following the hearing, the Director shall enter a proposed order. If no exceptions are filed, the proposed order becomes final.

(4) Judicial review of an order issued under this section shall be as provided in ORS 183.480 to 183.497 for judicial review of contested cases. Jurisdiction for judicial review of contested cases is conferred upon the Court of Appeals.

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



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