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(continued) imposed under subsection (2) of this section. [1993 c.422 §2]
468.929 Unlawful transport of hazardous waste in the second degree. (1) A person commits the crime of unlawful transport of hazardous waste in the second degree if the person, in violation of ORS 466.080, 824.090 or 825.258 or any rule, standard, license, permit or order adopted or issued under ORS 466.020, 466.080, 824.090 or 825.258, knowingly transports hazardous waste.
(2)(a) Subject to ORS 153.022, unlawful transport of hazardous waste in the second degree is a Class B misdemeanor.
(b) Notwithstanding ORS 161.635, in addition to any term of imprisonment that the court may impose under paragraph (a) of this subsection, the court may impose a fine of up to $10,000. [1993 c.422 §5; 1999 c.1051 §306]
468.930 [1985 c.684 §2; 1989 c.958 §2; renumbered 468.456 in 1993]
468.931 Unlawful transport of hazardous waste in the first degree. (1) A person commits the crime of unlawful transport of hazardous waste in the first degree if the person, in violation of ORS 466.080, 824.090 or 825.258 or any rule, standard, license, permit or order adopted or issued under ORS 466.020, 466.080, 824.090 or 825.258, knowingly transports hazardous waste, and:
(a) As a result, recklessly causes substantial harm to human health or the environment; or
(b) Knowingly disregards the law in committing the violation.
(2) Unlawful transport of hazardous waste in the first degree is a Class B felony.
(3) Notwithstanding ORS 161.625 and subsection (2) of this section, upon a second conviction for unlawful transport of hazardous waste in the first degree within a five-year period, the court may require the defendant to pay an amount, fixed by the court, not exceeding $200,000 in addition to any other sentence imposed under subsection (2) of this section. [1993 c.422 §3]
468.933 Determination of number of punishable offenses under ORS 468.922, 468.926, 468.929 and 468.931. Notwithstanding ORS 161.067, each day on which a violation occurs or continues under ORS 468.922, 468.926, 468.929 or 468.931 is a separately punishable offense. [1993 c.422 §6]
468.935 [1985 c.684 §4; 1989 c.958 §3; renumbered 468.461 in 1993]
468.936 Unlawful air pollution in the second degree. (1) A person commits the crime of unlawful air pollution in the second degree if the person knowingly violates any applicable requirement of ORS chapter 468A or a permit, rule or order adopted or issued under ORS chapter 468A.
(2) Notwithstanding ORS 161.515 and subject to ORS 153.022, unlawful air pollution in the second degree is a criminal offense punishable solely by a fine of up to $10,000. [1993 c.422 §8; 1999 c.1051 §307]
468.939 Unlawful air pollution in the first degree. (1) A person commits the crime of unlawful air pollution in the first degree if the person, in violation of ORS chapter 468A or any rule, permit, order or any applicable requirement adopted or issued under ORS chapter 468A, knowingly discharges, emits or allows to be discharged or emitted any air contaminant into the outdoor atmosphere, and:
(a) As a result, recklessly causes substantial harm to human health or the environment; or
(b) Knowingly disregards the law in committing the violation.
(2) Unlawful air pollution in the first degree is a Class B felony.
(3) Notwithstanding ORS 161.625 and subsection (2) of this section, upon a second conviction for unlawful air pollution in the first degree within a five-year period, the court may require the defendant to pay an amount, fixed by the court, not exceeding $200,000 in addition to any other sentence imposed under subsection (2) of this section. [1993 c.422 §7]
468.940 [1985 c.684 §5; 1989 c.958 §4; 1991 c.877 §38; renumbered 468.466 in 1993]
468.941 Determination of number of punishable offenses under ORS 468.936 or 468.939. Notwithstanding ORS 161.067, each day on which a violation occurs or continues under ORS 468.936 or 468.939 is a separately punishable offense. [1993 c.422 §9]
468.943 Unlawful water pollution in the second degree. (1) A person commits the offense of unlawful water pollution in the second degree if the person with criminal negligence violates ORS chapter 468B or any rule, standard, license, permit or order adopted or issued under ORS chapter 468B.
(2) Subject to ORS 153.022, unlawful water pollution in the second degree is punishable by a fine of up to $25,000 or imprisonment for not more than one year, or both. [1993 c.422 §11; 1999 c.1051 §308]
468.945 [1985 c.684 §6; 1989 c.958 §5; renumbered 468.471 in 1993]
468.946 Unlawful water pollution in the first degree. (1) A person commits the crime of unlawful water pollution in the first degree if the person, in violation of ORS chapter 468B or any rule, standard, license, permit or order adopted or issued under ORS chapter 468B, knowingly discharges, places or causes to be placed any waste into the waters of the state or in a location where the waste is likely to escape or be carried into the waters of the state and:
(a) As a result, recklessly causes substantial harm to human health or the environment; or
(b) Knowingly disregards the law in committing the violation.
(2) Unlawful water pollution in the first degree is a Class B felony.
(3) Notwithstanding ORS 161.625 and subsection (2) of this section, upon a second conviction for unlawful water pollution in the first degree within a five-year period, the court may require the defendant to pay an amount, fixed by the court, not exceeding $200,000 in addition to any other sentence imposed under subsection (2) of this section. [1993 c.422 §10]
468.949 Determination of number of punishable offenses under ORS 468.943 or 468.946. Notwithstanding ORS 161.067, each day on which a violation occurs or continues under ORS 468.943 or 468.946 is a separately punishable offense. [1993 c.422 §12]
468.950 [1985 c.684 §7; 1989 c.958 §6; renumbered 468.476 in 1993]
468.951 Environmental endangerment. (1) A person commits the crime of environmental endangerment if the person:
(a) Knowingly commits the crime of unlawful disposal, storage or treatment of hazardous waste in the first degree, unlawful transport of hazardous waste in the first degree, unlawful air pollution in the first degree or unlawful water pollution in the first degree; and
(b) As a result, places another person in imminent danger of death or causes serious physical injury.
(2) Environmental endangerment is a felony punishable:
(a) If the defendant is an individual and notwithstanding ORS 161.625, by imprisonment of not more than 15 years, a fine of not more than $1,000,000, or both.
(b) If the defendant is other than an individual and notwithstanding ORS 161.625, by a fine of not more than $2,000,000.
(c) Notwithstanding ORS 161.625, in the case of a second or subsequent conviction under this section, by imprisonment of not more than 30 years, a fine of not more than $5,000,000, or both.
(3) As used in this section, “serious physical injury” has the meaning given in ORS 161.015. [1993 c.422 §13]
468.953 Supplying false information to agency. (1) A person commits the crime of supplying false information to any agency if the person:
(a) Makes any false material statement, representation or certification knowing it to be false, in any application, notice, plan, record, report or other document required by any provision of ORS chapter 465, 466, 468, 468A or 468B or any rule adopted pursuant to ORS chapter 465, 466, 468, 468A or 468B;
(b) Omits any material or required information, knowing it to be required, from any document described in paragraph (a) of this subsection; or
(c) Alters, conceals or fails to file or maintain any document described in paragraph (a) of this subsection in knowing violation of any provision of ORS chapter 465, 466, 468, 468A or 468B or any rule adopted pursuant to ORS chapter 465, 466, 468, 468A or 468B.
(2) Supplying false information is a Class C felony. [1993 c.422 §14]
468.955 [1985 c.684 §8; 1987 c.158 §95; 1989 c.958 §7; renumbered 468.481 in 1993]
468.956 Refusal to produce material subpoenaed by commission. Refusal, without good cause, to produce books, papers or information subpoenaed by the Environmental Quality Commission, the Department of Environmental Quality or the regional air quality control authority or any report required by law or by the commission, the department or a regional authority pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B is a Class A misdemeanor. [1993 c.422 §15]
468.959 Upset or bypass as affirmative defense. (1) It is an affirmative defense to any offense under ORS 468.922 to 468.946 that the alleged violation was the result of an upset or bypass.
(2) For purposes of this section:
(a) “Bypass” means the temporary discharge of waste or an air contaminant in violation of ORS chapter 465, 466, 468, 468A or 468B or any rule adopted or order or permit issued thereunder, under circumstances in which the defendant reasonably believed that the discharge was necessary to prevent loss of life, personal injury or severe property damage, or to minimize environmental harm.
(b) “Upset” includes an exceptional and unexpected occurrence in which there is unintentional and temporary violation of the requirements of ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825 or of any rule adopted or permit or order issued under ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B, or 825 because of factors beyond the reasonable control of the regulated person or entity. “Upset” does not include a violation caused by:
(A) Operational error;
(B) Improperly designed facilities;
(C) Lack of preventive maintenance; or
(D) Careless or improper operation.
(3) To establish the affirmative defense of upset or bypass, the defendant must prove the occurrence of an upset or bypass and that the defendant:
(a) Reported the upset or bypass to the Department of Environmental Quality or other appropriate agency within 24 hours or as required by statute, rule, permit or order, whichever is sooner, and, if the original notice was oral, delivered written notice to the Department of Environmental Quality or other agency with regulatory jurisdiction within four calendar days;
(b) Submitted complete documentation of the upset or bypass to the Department of Environmental Quality or other agency with regulatory jurisdiction as required by statute, rule, order or permit; and
(c) Took appropriate corrective action, including action to minimize damage, as soon as reasonably possible.
(4) It is an affirmative defense to an offense under ORS 468.922 to 468.946 that the defendant:
(a) Did not cause or create the condition or occurrence that constitutes the offense;
(b) Reported the condition or occurrence to the Department of Environmental Quality or other agency with regulatory jurisdiction as soon as practicable after the defendant discovered it; and
(c) Took reasonable steps to correct the violation. [1993 c.422 §17]
468.960 [1985 c.684 §9; 1989 c.958 §8; renumbered 468.486 in 1993]
468.961 Approval of Attorney General or district attorney before bringing felony charge; guidelines for bringing felony charge; model guidelines. (1) Except in exigent circumstances, no person shall be charged with a felony under ORS 468.922 to 468.956 without the personal approval of the district attorney of the county or the Attorney General of the State of Oregon.
(2) In order to promote consistency in bringing criminal prosecutions under ORS 468.922 to 468.956, the district attorney of each county shall adopt written guidelines for filing felony criminal charges under ORS 468.922 to 468.956. The written guidelines, at a minimum, shall require the district attorney to consider and apply the following factors in determining whether to file criminal charges:
(a) The complexity and clarity of the statute or regulation violated;
(b) The extent to which the person was or should have been aware of the requirement violated;
(c) The existence and effectiveness of the person’s program to promote compliance with environmental regulations;
(d) The magnitude and probability of the actual or potential harm to humans or to the environment;
(e) The need for public sanctions to protect human health and the environment or to deter others from committing similar violations;
(f) The person’s history of repeated violations of environmental laws after having been given notice of those violations;
(g) The person’s false statements, concealment of misconduct or tampering with monitoring or pollution control equipment;
(h) The person’s cooperation with regulatory authorities, including voluntary disclosure and prompt subsequent efforts to comply with applicable regulations and to remedy harm caused by the violation;
(i) The appropriate regulatory agency’s current and past policy and practice regarding the enforcement of the applicable environmental law; and
(j) The person’s good faith effort to comply with the law to the extent practicable.
(3) In order to promote consistency and uniformity in prosecutorial policies, the Attorney General, in consultation with the Oregon District Attorneys Association, and after appropriate opportunity for public comment, shall adopt model guidelines for prosecution of environmental crimes. The Attorney General’s model guidelines shall provide for consideration and application of the factors described in subsection (2) of this section. A district attorney may fulfill the district attorney’s responsibility under subsection (2) of this section by adopting the Attorney General’s model guidelines.
(4) Prior to or in conjunction with the filing of felony charges under ORS 468.922 to 468.956, the district attorney or the Attorney General shall file a certification with the court that the guidelines described in subsections (2) and (3) of this section have been applied and that, in the opinion of the district attorney or Attorney General, as the case may be, the criminal charges are being filed in accordance with the guidelines. [1993 c.422 §19]
Note: Legislative Counsel has substituted “ORS 468.922 to 468.956” for the words “this 1993 Act” in sections 19 and 20, chapter 422, Oregon Laws 1993, compiled as 468.961 and 468.963. Other ORS references have not been substituted, pursuant to 173.160. These sections may be determined by referring to the 1993 Comparative Section Table located in Volume 18 of ORS.
468.962 Notice to Department of Revenue of environmental felony. If a person is convicted of a felony under ORS 468.922 to 468.956, the county district attorney or the Attorney General, whichever was the prosecuting officer, shall give notice of the conviction to the Department of Revenue. [2001 c.928 §8]
468.963 Environmental audit privilege; exceptions; burden of proving privilege; waiver; disclosure after in camera review. (1) In order to encourage owners and operators of facilities and persons conducting other activities regulated under ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or the federal, regional or local counterpart or extension of such statutes, both to conduct voluntary internal environmental audits of their compliance programs and management systems and to assess and improve compliance with such statutes, an environmental audit privilege is recognized to protect the confidentiality of communications relating to such voluntary internal environmental audits.
(2) An Environmental Audit Report shall be privileged and shall not be admissible as evidence in any civil or administrative proceeding, except as provided in subsections (3) and (4) of this section. The privilege provided in this subsection does not apply to a criminal investigation or proceeding. When an Environmental Audit Report is obtained in connection with a criminal investigation or proceeding, the privilege provided in this subsection related to civil or administrative proceedings is not waived.
(3)(a) The privilege described in subsection (2) of this section does not apply to the extent that it is waived expressly or by implication by the owner or operator of a facility or persons conducting an activity that prepared or caused to be prepared the Environmental Audit Report. The release of an Environmental Audit Report by the owner or operator of a facility to any party or to any public body for purposes of negotiating, arranging or facilitating the sale, lease or financing of a property or a facility, or a portion of a property or facility:
(A) Is not a waiver of the privilege; and
(B) Does not create a right for a public body to require the release of an Environmental Audit Report.
(b) In a civil or administrative proceeding, a court of record, after in camera review consistent with the Oregon Rules of Civil Procedure, shall require disclosure of material for which the privilege described in subsection (2) of this section is asserted, if such court determines that:
(A) The privilege is asserted for a fraudulent purpose;
(B) The material is not subject to the privilege; or
(C) Even if subject to the privilege, the material shows evidence of noncompliance with ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or with the federal, regional or local counterpart or extension of such statutes, appropriate efforts to achieve compliance with which were not promptly initiated and pursued with reasonable diligence.
(c) A party asserting the environmental audit privilege described in subsection (2) of this section has the burden of proving the privilege, including, if there is evidence of noncompliance with ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or the federal, regional or local counterpart or extension of such statutes, proof that appropriate efforts to achieve compliance were promptly initiated and pursued with reasonable diligence. A party seeking disclosure under subsection (3)(b)(A) of this section has the burden of proving that the privilege is asserted for a fraudulent purpose.
(4)(a) A district attorney, the Attorney General or a governmental agency having probable cause to believe an offense has been committed under ORS 468.922 to 468.956 based upon information obtained from a source independent of an Environmental Audit Report, may obtain an Environmental Audit Report for which a privilege is asserted under subsection (2) of this section pursuant to search warrant, criminal subpoena or discovery as allowed by ORS 135.835. The district attorney, Attorney General or governmental agency shall immediately place the report under seal and shall not review or disclose its contents.
(b) Within 30 days of the district attorney’s, Attorney General’s or governmental agency’s obtaining an Environmental Audit Report, the owner or operator who prepared or caused to be prepared the report may file with the appropriate court a petition requesting an in camera hearing on whether the Environmental Audit Report or portions thereof are privileged under this section or subject to disclosure. Failure by the owner or operator to file such petition shall waive the privilege.
(c) Upon filing of such petition, the court shall issue an order scheduling an in camera hearing, within 45 days of the filing of the petition, to determine whether the Environmental Audit Report or portions thereof are privileged under this section or subject to disclosure. Such order further shall allow the district attorney, Attorney General or governmental agency to remove the seal from the report to review the report and shall place appropriate limitations on distribution and review of the report to protect against unnecessary disclosure. The district attorney, Attorney General or governmental agency may consult with enforcement agencies regarding the contents of the report as necessary to prepare for the in camera hearing. However, the information used in preparation for the in camera hearing shall not be used in any investigation or in any proceeding against the defendant, and shall otherwise be kept confidential, unless and until such information is found by the court to be subject to disclosure.
(d) The parties may at any time stipulate to entry of an order directing that specific information contained in an Environmental Audit Report is or is not subject to the privilege provided under subsection (2) of this section.
(e) Upon making a determination under subsection (3)(b) of this section, the court may compel the disclosure only of those portions of an Environmental Audit Report relevant to issues in dispute in the proceeding.
(5) The privilege described in subsection (2) of this section shall not extend to:
(a) Documents, communications, data, reports or other information required to be collected, developed, maintained, reported or otherwise made available to a regulatory agency pursuant to ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or other federal, state or local law, ordinance, regulation, permit or order;
(b) Information obtained by observation, sampling or monitoring by any regulatory agency; or
(c) Information obtained from a source independent of the environmental audit.
(6) As used in this section:
(a) “Environmental audit” means a voluntary, internal and comprehensive evaluation of one or more facilities or an activity at one or more facilities regulated under ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or the federal, regional or local counterpart or extension of such statutes, or of management systems related to such facility or activity, that is designed to identify and prevent noncompliance and to improve compliance with such statutes. An environmental audit may be conducted by the owner or operator, by the owner’s or operator’s employees or by independent contractors.
(b) “Environmental Audit Report” means a set of documents, each labeled “Environmental Audit Report: Privileged Document” and prepared as a result of an environmental audit. An Environmental Audit Report may include field notes and records of observations, findings, opinions, suggestions, conclusions, drafts, memoranda, drawings, photographs, computer-generated or electronically recorded information, maps, charts, graphs and surveys, provided such supporting information is collected or developed for the primary purpose and in the course of an environmental audit. An Environmental Audit Report, when completed, may have three components:
(A) An audit report prepared by the auditor, which may include the scope of the audit, the information gained in the audit, conclusions and recommendations, together with exhibits and appendices;
(B) Memoranda and documents analyzing portions or all of the audit report and potentially discussing implementation issues; and
(C) An implementation plan that addresses correcting past noncompliance, improving current compliance and preventing future noncompliance.
(7) Nothing in this section shall limit, waive or abrogate the scope or nature of any statutory or common law privilege, including the work product doctrine and the attorney-client privilege. [1993 c.422 §20; 1997 c.320 §1; 2001 c.630 §1]
Note: See note under 468.961.
468.965 [1985 c.684 §10; 1989 c.958 §9; renumbered 468.491 in 1993]
468.967 [1989 c.1072 §1; renumbered 459A.775 in 1991]
468.968 [1989 c.1072 §§2,3,4; renumbered 459A.780 in 1991]
468.969 [1989 c.1072 §5; renumbered 459A.785 in 1991]
468.970 [1987 c.695 §1; 1989 c.958 §9; renumbered 454.430 in 1989]
468.973 [1987 c.695 §2; renumbered 454.433 in 1989]
468.975 [1987 c.695 §§3,11; renumbered 454.436 in 1989]
468.977 [1987 c.695 §§4,5,8; renumbered 454.439 in 1989]
468.980 [1987 c.695 §6; renumbered 454.442 in 1989]
468.983 [1987 c.695 §7; renumbered 454.445 in 1989]
468.990 [1973 c.835 §28; subsection (5) formerly part of 448.990, enacted as 1973 c.835 §177a; 1989 c.859 §6; 1991 c.764 §7; renumbered 468B.990 in 1991]
468.992 [1973 c.835 §26; repealed by 1993 c.422 §35]
468.995 [1973 c.835 §27; subsection (6) enacted as 1975 c.366 §3; 1983 c.338 §938; 1991 c.920 §20; renumbered 468A.990 in 1991]
CIVIL PENALTIES
468.996 Civil penalty for intentional or reckless violation. (1) In addition to any other penalty provided by law, any person who intentionally or recklessly violates any provision of ORS 164.785, 459.205 to 459.426, 459.705 to 459.790, ORS chapters 465, 466 or 467 or 468, 468A and 468B or any rule or standard or order of the Environmental Quality Commission adopted or issued pursuant to ORS 459.205 to 459.426, 459.705 to 459.790, ORS chapters 465, 466 or 467 or 468, 468A and 468B, which results in or creates the imminent likelihood for an extreme hazard to the public health or which causes extensive damage to the environment shall incur a civil penalty not to exceed $100,000. The Environmental Quality Commission shall adopt by rule a schedule and the criteria for determining the amount of a civil penalty that may be imposed for an extreme violation.
(2) As used in this section:
(a) “Intentionally” means conduct by a person with a conscious objective to cause the result of the conduct.
(b) “Recklessly” means conduct by a person who is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care a reasonable person would observe in that situation. [1991 c.650 §2]
468.997 Joinder of certain offenses. Where any provision of ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B provides that each day of violation of ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 or a section of ORS chapters 468, 468A and 468B constitutes a separate offense, violations of that section that occur within the same court jurisdiction may be joined in one indictment, or complaint, or information, in several counts. [Formerly 449.992]
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