Or. Admin. Code § 345-029-0555 - Enforcement Actions

(1) After considering any information provided in the responsible party's response to the Pre-Enforcement Notice described under OAR 345-029-0520(2), and any enforcement conference under OAR 345-029-0550, the Director may issue a Notice of Enforcement Action containing one or more enforcement actions, including, but not limited to, ordering compliance or corrective actions, imposing safety conditions, and imposing civil penalties.

(2) The Notice of Enforcement Action must include:

(a) The information described under OAR 345-029-0520(1);

(b) A statement assessing the responsible party's cooperativeness and effort to correct the violation;

(c) The amount of the penalty, if any, as calculated under OAR 345-029-0560;

(d) A proposed order assessing a penalty, if any, and ordering compliance or imposing other safety conditions under ORS 469.540(3), as appropriate; and

(e) A notice of the responsible party's right to a contested case hearing under OAR 137-003-0505, including:

(A) The date by which the Director must receive the responsible party's request for a contested case hearing. The date must be at least 20 days after the date of the Notice of Enforcement Action; and

(B) A statement explaining that if the responsible party does not request a contested case hearing by the date specified, or requests a contested case hearing and fails to appear at the hearing, the responsible party waives its right to hearing and the proposed order will become final by default.

(3) The Director must serve the Notice of Enforcement Action upon the responsible party by certified or registered mail.

(4) If the responsible party requests a contested case proceeding by the deadline specified in the Notice of Enforcement Action, the Director must conduct the proceeding in accordance with the applicable provisions of ORS chapter 183. The Director will issue the final order in the contested case.

(5) The Director may agree to an informal disposition or settlement of the contested case if the disposition would be consistent with the Council's goals of protecting public health and the environment and ensuring compliance with the laws, rules and orders of the Department and Council.

(6) If the responsible party does not request a contested case proceeding by the deadline specified in the Notice of Enforcement Action, or if the responsible party requests a contested case proceeding but fails to appear, the Director may issue a final order by default.

(7) Notwithstanding OAR 345-029-0560, the Director may, in its final order issued under this rule, rescind or reduce the amount of penalty upon a showing by the responsible party that:

(a) Imposition of the penalty would be an unreasonable economic and financial hardship on the responsible party, subject to the following:

(A) To make a showing of unreasonable economic or financial hardship, the responsible party must provide documentation determined by the Director to be sufficient to evaluate the responsible party's actual economic or financial condition. Documentation may include, but is not limited to, tax returns and financial statements;

(B) The Director may consider the amount of a penalty issued by another state agency for a violation resulting from the same action, conditions, or circumstances, when evaluating whether the Director's penalty would result in an unreasonable economic or financial hardship on the responsible party; and

(C) The Director may use the U.S. Environmental Protection Agency's ABEL, INDIPAY or MUNIPAY computer models to evaluate a respondent's financial condition or ability to pay the full civil penalty amount. Upon request of the responsible party the Director will provide the respondent the name of the version of the model used and respond to any reasonable request for information about the content or operation of the model; or

(b) The responsible party has provided all information required by the Director's Pre-Enforcement Notice and has taken or is willing to take prompt and effective action to correct the violation and ensure that it will not be repeated.

(8) A civil penalty imposed under this rule becomes due and payable 10 days after the order imposing the civil penalty becomes final by operation of law or on appeal.

Notes

Or. Admin. Code § 345-029-0555

EFSC 1-2021, adopt filed 02/26/2021, effective 2/26/2021

Statutory/Other Authority: ORS 469.470

Statutes/Other Implemented: ORS 469.085, 469.540 & 469.992