United States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Washington DC 20460
EPA-340/1-83-018b
August 1982
Stationary Source Compliance Series
Initial Design
Considerations for
A Model State
and Local
Administrative
Fines Program
Volume II
Final Report
-------
EPA-340/1 -83-018b
Initial Design Considerations
for A Model State and Local
Administrative Fines Program
Volume II
Final Report
by
Lisa A. Baci, J. O'Neill Collins,
Andrew Bagley, Robert J. Kindya
GCA CORPORATION
GCA/TECHNOLOGY DIVISION
Bedford, Massachusetts
Contract No. 68-01-6316
Technical Service Area 3
Task Order No. 25
US. Environmental Protection Agency
Region V, Lihraiy
230 Souih Dc;aiborn Street
Prepared for Chicago, Illinois 60604
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Stationary Source Compliance
Washington, D.C. 20460
August 1982
-------
DISCLAIMER
This Draft Final Report was furnished to the Environmental Protection
Agency by the GCA Corporation, GCA/Technology Division, Bedford, Massachusetts
01730, in fulfillment of Contract No. 68-01-6316, Technical Service Area No.
3, Task Order 25. The opinions, findings, and conclusions expressed are those
of the authors and not necessarily those of the Environmental Protection
Agency or the cooperating agencies. Mention of company or product names is
not to be considered as an endorsement by the Environmental Protection Agency.
A
Agency
-------
CONTENTS
Georgia 1
Indiana 4
Louisiana 10
Mississippi 15
Nevada 21
New Jersey 27
Oregon 43
Pennsylvania 78
Puget Sound 83
ill
-------
GEORGIA
The Environmental Protection Division of the Department of Natural
Resources has had the capability to use administrative penalties for air
quality violations since 1967. Although the Georgia Statute sets a maximum
fine of $25,000, typical penalties are usually in the $1000 - $2500 range. In
1980, the Environmental Protection Division collected $46,500 from
approximately 12 penalty assessments.
Penalty Procedure/Review Process
It is the policy of Georgia's Environmental Protection Division to keep
sources in compliance with the established standards; they are "not in the
business to collect penalties." For this reason, the Division always
negotiates with the violator initially in an attempt to bring the polluter
back in compliance voluntarily. Often, the Division will allow the source 30
days to achieve compliance on a voluntary basis. This decision is contingent
on such factors as the severity of the violation, the track record of the
source, and the avoidability of the incident.
Any discussion of the use of administrative penalties assumes that the
Division has been forced to move beyond voluntary compliance. At this point,
the Environmental Protection Division and the violator negotiate a settlement,
including the amount of the penalty. If the source refuses to pay after an
agreement is reached, the director will take the case to Superior Court.
If the agency and source cannot come to an agreement, the director will
issue a consent order. The violator must either appeal this order, or pay the
administrative fine. Should the source appeal the director's decision, the
case will be heard before a Hearing Examiner, appointed by the Board of
Natural Resources. The violator can appeal the findings of the Hearing
Examiner in Superior Court.
Program Effectiveness
It appears that long delays can develop if appeals are sought.
Generally, Georgia officials admit that establishing a proper penalty amount
is quite difficult and thus use administrative fines as a method of getting
sources' attention. They believe that the best enforcement tool is the permit
process, which, although seldom used, poses a great threat to violators.
Overall, the administrative fines program provides for greater enforcement
flexibility and helps keep sources in compliance with the regulations.
References
1. Lowry, Marvin. Georgia Department of Natural Resources. Telephone
Conversation with J. O'Neill Collins, GCA/Technology Division, September
25, 1981.
2. Lowry, Marvin. Georgia Department of Natural Resources. Telephone
Conversation with Andrew Bagley, GCA/Technology Division, January 21,
1982.
3- Georgia Air Quality Control Law. Sections 16, 17, and 18.
1
-------
ATTACHMENT 1: Georgia Air Quality
Control Law, Sections 16, 17, and 18.
-------
351-0100
feTATE AIR LAWS
lion on which action proposed to be taken is based and
to ascertain the afin.n which such nuthorilies arc or
will be tiikini1,. Notwithstanding Sections, 12, 13, 14,
nnd 17 of (In-, Ad, such ordci shall be immediately
cllftlive lor a period of not more than twcniy-four
lr us unless ihc Director bring:, an action under the
fust sentence "I this .Section before the expiration of
MH.II period. Wln.ni.ver tin. Director brings such an
ir,lion within surh period, such order shall be effective
I'm a period ol lort^-eight hours or such longer period
;is may he aiilhoii/rd by the court pending litigation or
thrrcaflLr.
Section 16. (ivil penalties and procedures for impos-
ing suth penalties.
(1) Civil I'enallies. Any person violating any pro-
vision of this Act or rules or regulations hereunder or
any permit condition, or limitation established pur-
suant to this Act, or failing or refusing to comply with
unv final order of the Diicctor issued as provided here-
in, shall be liable for a civil penalty of not more than
S25.000.00 per day. F.ach day during which the viola-
tion or failure continues shall be a separate violation.
(?) Procedures. Whenever Ihe Director has reason to
believe thai nny person has violated any provision of
this Act or any rules or regulations hereunder or any
permit condition 01 has failed or refused to comply
with any final order of the Director, he may, upon
written request, cause a hearing to be conducted before
a hearing officer appointed by the Board. Upon a
finding that said person has violated any provisions of
this Act or any rule or regulation hereunder or any
permit condition, or has failed or refused to comply
with any final order of the Director, said hearing of-
ficer shall issue his initial decision imposing civil
penalties as herein provided. Such hearing and any
administrative or judicial review thereof shall be con-
ducted in accordance with Section 17 of this Act.
(3) In rendering a decision under subsection (2) im-
posing civil penalties, the hearing officer shall consider
all factors which arc relevant, including, but not lim-
ited to, the following:
(a) The amount of assessment necessary to insure
immediate and continued compliance, and the extent
to which the violator may have profited by failing or
delaying to comply;
(b) The character and degree of impact of the viola-
tion or failure on the natural resources of the state,
especially nny rare or unique natural phenomena;
(c) The conduct of the person incurring the civil
penalty in takinj; all feasible sleps or procedures ncces-
Niiiy or appropriate to comply or to correct the viola-
tion or failure;
(d) Any prior violations or failures to comply by
such person with statutes, regulations, orders or per-
mits administered, adopted or issued by the Director;
(c) The economic and financial conditions of such
person to the extent allowed in Section 8 of this Act;
(I) The character and degree of injury to. or inter-
fcicnce with, public health, safety or welfare which is
caused or threatened to be caused by such violation or
failure;
(g) The character and degree of injury to, or Inter-
ference with reasonable use of properly which is causec
or threatened to be caused by such violation or failure.
(4) All civil penalties recovered by the Director as
provided in this Section shall be paid into the State
Treasury to the credit of the general fund.
Section 17. Hearings on contested matters, judicial
review. All hearings on and review of contested mat-
ters, orders, or permits and all hearings on and review
of any other enforcement actions or orders under this
Act, shall be provided and conducted in accordance
with the provisions of Section 17(a) of the "Executive
Reorganization Act of 1972" (Ga. Laws 1972, p. 1015,
et scq.), as amended. The hearing and review pro-
cedure herein provided is to the exclusion of all other
means of hearing or review.
Section 18. Judgment in accordance with final or-
ders. Any order of a hearing officer issued after a
hearing as provided in Section 17 of this Act, or any
order of the Director issued under Section 14 or Sec-
tion 20 of this Act, either;
(1) Unappealed from, as provided in those sections,
or,
(2) Affirmed or modified on any review or appeal
pursuant to Section 17 and from which no further
review is taken or allowed under Section 17, may be
filed (as unappealed from or as affirmed or modified,
if reviewed or appealed) by certified copy from the
Director, in the Superior Court of the county wherein
the person resides or if said person is a corporation in
the county wherein the corporation maintains its prin-
cipal place of business, or in the county wherein the
violation occurred, whereupon said court shall render
judgment in accordance therewith and notify the par-
ties. Such judgment shall have the same effect, and all
proceedings in relation thereto shall thereafter be the
same, as though said judgment had been rendered in a
suit duly heard and determined by said court.
Section 19. Attorney General to Represent Director.
It shall be the duty of the Attorney General to repre-
sent the Director or designate some member of his
staff to represent the Director in all actions in con-
nection with this Act.
Section 20. Noncompliance Penalties.
(1) The following sources shall be subject to non-
compliance penalties under the conditions specified in
this Section:
(a) Any major stationary source which is not in
compliance with an emission limitation, emission stan-
dard, standard of performance, or compliance sched-
ule, under any applicable provision of this Act, or any
rule, regulation, permit, consent order or decree
(whether Federal or State), or final order adopted.
issued, consented to, or otherwise in effect under this
Act or the Federal Act; or.
(b) Any stationary source which is not in compliance
with an emission limitation, emission standard, stan-
Environment Reporter
3
-------
INDIANA
Indiana has been using fines to enforce its air pollution regulations
since at least 1974. According to state officials, the primary purpose of the
administrative fines program is to make sources aware of the state's emission
regulations as well as its intent to enforce those regulations. Most fines
are assessed for three types of violations: construction without a permit,
operating without a permit, and open burning. Indiana has developed internal
policy guidance to assist officials in deciding when to assess fines for these
violations and how large the fine should be. Officials have more discretion
in assessing fines for other violations.
Penalty Procedures/Review Process
When a violation is detected, the agency usually responds by issuing a
notice of violation and scheduling a conference for the source to explain the
problem. The policy of the state's air pollution control board is to resolve
as many violations as possible through staff negotiations with the source.
Thus, agency officials first attempt to reach agreement with the source on a
consent order to correct the violation. According to state officials, the
agency also negotiates with the source about appropriate penalties to be
included in the order. If it appears that penalty negotiations are the only
obstacle to signing an agreement, the agency will sometimes forego the fine in
order to achieve compliance more quickly.
If the source refuses to sign a consent order containing a reasonable
compliance schedule and penalty, the agency requests a hearing, which is held
in front of a hearing officer. The hearing, which is subject to the
procedural requirements specified in Indiana's Administrative Procedures Act,
is quasi-judicial in nature: both the source and the agency have the
opportunity to present evidence and cross-examine witnesses. The attorney
general's office represents the agency in these proceedings. If the source
objects to the hearing officer's findings, it can appeal the case to the air
pollution control board and then to the courts.
Most violations are resolved quickly (within six months) using consent
orders that contain penalty provisions. According to state officials, the
agency usually allows the source two to three weeks to prepare for the initial
conference. Even if they reach agreement on a consent order in the initial
visit, it can take several months before the penalty is actually assessed
because of procedural delays. The agency has to draft the order, submit it to
the attorney general for review and approval, return it to the company to be
signed, then have it placed on the agenda of a regularly scheduled board
meeting before the penalty is actually assessed. Indiana's enforcement
records indicate that once the penalty is assessed, it is usually paid
promptly (within two weeks). The agency very rarely goes to court to collect
a penalty.
-------
Program Effectiveness
According to Indiana officials the program does make sources aware that
Indiana has air pollution regulations that it intends to enforce. Although
most sources try to comply with air pollution regulations, the fines highlight
those companies that do not do their fair share. The program could be more
effective if violations were better documented, however.
References
1. Shadley, Sue A. Indiana State Board of Health. Telephone Conversation
with Lisa Baci, GCA/Technology Division, January 13, 1982.
2. Shadley, Sue A. Indiana State Board of Health. Written Communication
with J. O'Neill Collins, GCA/Technology Division, October 15, 1981.
3. Indiana Environmental Management Act, Indiana Code, Title 13, Article 7.
Chapter 11, Sections 2, 3, 5; Chapter 13, Sections 1,2.
-------
ATTACHMENT 1: Indiana Environmental Management
Act, Title 13, Article 7. Chapter 11, Sections 2, 3, 5;
Chapter 13, Sections I, 2.
-------
371:0206
STATE AIR LAWS
(A) The discharge ul any contaminants
into lUte wateri or into the publicly nwncil
trwtinent worki;
(B) Tht emiuion of any eoniajmniints
into the itmoiphere; or
(C) The ditpotal of any contaminants
onlo or into the land;
(2) Hermit* for the construction, in-
stallation, or modificulion ol facilities,
equipment, or device*.
(A) for any public water supply,
(B) To control or limit any discharge.
emiuion or disposal of contaminants into
the environment or into a publicly owned
treatment works, or
(C) f or the stonigc. treatment, process
ing or disposal of solid waste or ha/ardous
wiistc;
(3) Permits for the operation of
lacililies, equipment 01 device'.
(A) I or any puhlu water supply;
(B) I <> control 01 limit the dischaige.
emission or disposal nt any contaminants
into the environment or into a publicly
i.wned iicatment woiks, or
(C) lor the storage, transputladon,
(refitment, processing, or disposal ol solid
waste or hn/jrdoui waste.
(b) In regulations for the issuance ol per
mils, the hoiird or an agency may
(I) Prescribe standards for the dis
charge, erniiision or disposal ol con
Uminwnts und the operation of any facili-
ty, equipment or device; and
(2) Impose such conditions as deemed
ncccMury to accomplish the purposes ol
this article
I.V7-IO-2 IsauMC* of permits, la") Any
permit issued under this chapter may be
mkued lor iiny period dcici mined hx (In-
board or un agencv to be appropriate but
no! to exceed five(*>) years I lie bo.nd m
appropriate itgencv may delegate aullionty
10 issue or deny permits to US ialniu.il
secretary or other duly designated stall
in* niher
(b) A public hearing shall lie held on the
question ot the issuance ol in onginal 01
renc*u) pei mil lor a ha/aidous w isle dis-
posal facility under 1C M 7 X *• 01 on the
question of the issuance ol jn onpnal i>cr-
mil for .1 .solid waste disposal I icihu upon
(I) 'I he rrc|UC'.l ol ihe applicant.
'.'I F ii>. filing ol u petition iet|ucslini' .1
,'nbin. !,caring and .signed h\ mie Inn.lied
< MX I .id ill individuals who te.ide in llie
county win-re the proposed 01 existing
facility is or is to be located. 01 who own
»eiil properly within one (I) mile ol the
proposed or existing facility, or
(1) The motion of the bourd m an agen-
cy
The public hearing iiulhon/cd by this
•subsection doe* not constitute an ad-
ministrative adjudication under 1C -1 22-1
(c) If the petition under .subsection (b)(2)
[of this section] requests that the public
bearing he conducted at u location within u
county allected bv a proposed permii the
bourd shall conduct Hi at public hearing ut
(hill location
(d) Whenever a permit is required by
any regulation ol the board or an agency
pursuant to section I (13-7-10-1) ol this
fhapici lor the ^instruction, installation,
operation or modi 1'icalion of any futility,
equipment 01 (lout, said pel nut shall he
issued alter the board or agency stall has
approved the plans and specifications and
determined that .such facility, equipment
or device meets the requirement ol the
boaid or agencv
(e) Any issued permit or. il a permit is
denied, notice ol a permit denial shall be
m.tiled in the ' i ruled Slates postal system,
postage prepaid io the applicant al the ad-
diess staled in Ins application A pei mil
shall hr considered issued as ol the date
ol mailing
(I) When a peison holding a valid pel nut
concerning .in acinus ol a continuing
nature has made a iirneh and .sufluient
application lor a micival or a new pel nut
in .Hionlanic vuili ic('iilaliori.s ol the
lioaid "i appropriate agencv, the exiting
per mil dues riot expire until a final d< ler-
nnna'ion on the application has been t>een
MI nil h\ tin' bond 01 agencv
IV7 III-) Discharge and operation per-
mits. |Ki pealed|
1.1-7-1(1-4 Hearing, (a) If a permit is
denied or il the permit is issued with terms
and conditions which are ob|ectionable to
tha applicant, the applicant may petition
loi a hcanng lirlme the board or appiop-
naic .incurs within 1'ilteen (15) davs alter
the dale "I receipt ol the pel nut 01 notice
ol a denial ol permit Such a petition wInch
iv him l\ and wlm h complies with any "Iher
iu|inmiirnlx ol tin hoard 01 appropriate
igem \ .hall be c1 anl'd A person agj'i iev-
ed In the denial ol .1 petition loi liearini'. 01
b\ tin denial 01 issuance ol .1 permit iller
he.mi,I iv seek imluial review thereof
piusiiaat lo K I i 7-17 113-7-1 / I--
M ' I t 2\ loi MI,, purposes of mating
siuh .in appeal, tin' dale ol denial ol the
pennon li.i luariiiL1 under this sectlun is
[lie tla'e .'I ihr lir d detiimiiiation ol 'he
ho.ud HI ,')'i'ii >
ibj ,\l i iic.nini' niniti this ihaplci 'he
pelilioiKi lias llu liui'len ol proving lt< ihe
board in agenev
I I) \\ h\ ihe per mil should IK issued or
I.') VVh\ the teinis and conditions ol the
pei mil are not (tislilicit 01 are otherwise in-
valid
(i ) Ihe hoard 01 appropriate agency
may designate a person to be Ihe hearing
ollicer I \cepl as provided in this section,
hearings shall be conducted under 1C
4 22-1
13-7-10-5 Revocation, of permits.
(a) Any permit granted by the board or
an agency under this article may be revok-
ed or modified by such board or agency, or
designated ttafT member, for cause for any
of the following:
(I) violation of any conditions of the
permit;
(2) failure to disclose all of the relevant
fuels, or misrepresentations in obtaining
the permit;
(3) changes in conditions that require
either a temporary or permanent reduction
in the discharge of contaminants; or
(4) for any other cause, after hearing,
which establishes, in the judgment of the
board or agency, that continuance of the
permit is not consistent with the purposes
of this article or regulations under it.
(b) Any person aggrieved by the revoca-
tion of a permit may, if the revocation was
by a staff member, appeal lo the board or
appropriate agency for a hearing. Pending
decision of said appeal, the permit shall re-
main in force. In the case of revocation of
u permit by the board or any agency, on
appeal or otherwise, any aggrieved person
may appeal the revocation order in the
manner provided in Chapter 17 hereof.
Chapter II. Enforcement
13-7-11-1 Investigations. The bourd or
an agency, or a designated member of the
staff of the board or an agency, on receipt
of information of any alleged violation ol
this article or of any regulation or standard
adopted hereunder, may initiate an in-
vestigation.
13-7-11-2 Procedure*.
(a) II an investigution discloses a possi-
ble violation, the technical secretary of the
board, the appropriate agency, or a
designated member of the staff, shall issue
written notice, by registered or certified
mail with retum receipt requested, ad-
dressed to the alleged violator at the last
known place of residence or place of
business, together with a complaint
specifying the provision of this article or
the rule or regulation being violated. Ihe
complaint shall include a statement of the
manner in which, and the extent lo which,
(he alleged violation exists. The alleged
violator may be required by the notice to
answer the cluiiges by written response
before the hearing date or at a hearing
before the board, an agency or designated
member of the staff of the board or an
agency, on a dute not less than twenty (20)
days after the receipt of the notice, except
as may be otherwise provided herein. A
copy of such notice and complaint may
also be sent to any local governmental unit
which may be an interested parly to the ac-
tion. The board or an agency may also
provide that notice of hearing be published
in a newspaper or newspapers. In the case
Environment Reporter
-------
INDIANA ENVIRONMENTAL MANAGEMENT ACT
S-5JI1
371:0207
V
of alleged violation* occurring outside the
itate contributing to environmental
damage in the itate, the extra-territoriul
Mrvict-of-procoii provision* of the law
and Indiana Rulei of Procedure ninth app-
ly
(b) Any person who has Tiled u com-
plaint pursuant to 1C' 136-11 to. mid in
eluding, 13-6-1-6 muy, if the hoard or
agency hat either (u) refused to proceed, or
(h) one hundred eighty (180) days have
elapsed from the filling ot the complaint
without a final determination, proceed
against the alleged violator, and in such
event the board or agency shall not be join-
ed as a party; Provided, however, the
board or agency may intervene in any such
proceeding
(i) In hearings before ihe bo.ird or an
agency under ihis diuptei. Hie buidui shall
he on the complainant u> show the alleged
violation
I3-7-1I-J IItarings.
(a) All hearings under tin, article shall
be IK Id m accordance with l( 4-?l I I to
4-22-I-.10,
(b) Any j'.irly to ;i heating undci (Ins
lubacctmn may be represented by counsel
und m.iy make orul or »mtcn statements,
offer testimony and ci oss examine
witnesses. All testimony t.iken shall be
rmirded. The transcript .md any ad
ditional matter accepted for the record shall
be open to public inspection, and copies
(hereof shall be made available to an> per-
son upon payment of the cost ol reprodtic
turn
1.V7-1M Board aa a purl). I he board
or iin agency may appeal .is a party to .ill
actions ufl4er ihis chapter
I.V7.II-5 Final orders.
(a) In accordance with the procedure
provided in 1C 4-22-1-12, or upon default
in appearance of the respondent by the
(Lite specified in the notice, the board 01
agency shall issue and enter its final order
01 make any oilier final determination as it
shall decrn appropriate. I he board or
agency shall immediately notify the
respondent of such order in writing by cer-
tified mail, return receipt requested
'!>) Ihe hoard or agency's order may in
il1 "Ic direction to cease and desist Iruin
M'lations of i'ie article, or legulations or
i standards adopicd, may impose monetary
j pcnnlties in accordance with ihis article, or
may mandate conective action to alleviate
the viol.ilion Any such order may also
revoke a permit. Ihe oidci. il it allows
time during which to corrcii a violation,
may provide lor the posting of perfor-
mance bond with surely or security accep-
table to Ihe board or agency to assure the
correction of tuch violation within the time
prescribed in any order
IJ-7-12-1 Kmergency ord«r; notice; com-
pliance; hearing.
(a) Whenever the technical secretary of
the hoard and the secretary of the Indiana
State Hoard of Health conclude that con-
tamination of air, water or land m any area
has reached the point where it constitute* a
clear and present danger to the health and
safety of persons in any area, such deter-
mination shall be immediately com-
municated to the Governor. The secretary
of the Indiana State Board of Health, in
concert with the technical secretary of the
board, may request the Governor to
declare that an emergency exists. The
(iovernor may proclaim the existence of an
emergency and order all persons causing
or contributing to the causing of the con-
tamination to reduce or discontinue im-
mediately ilie emission and/or discharge
of contaminants.
(b) Notue ol any such emer^'ncy order
shall be in writing wherever practicable,
but if the (iovemor deems written notice is
not practicable, notice may be given in
Miili maiinei as determined by the Gover-
nor
(il Any peisiin against whom an
emergency older of the agencies hat been
issued shall immediately upon receiving
notice of such order comply with its
provisions I he Governor shall have power
to enforce the order by any appropriate ac-
tion
(d) At any time within ten (10) days
alter the notice of an erncrgenc) order, the
person or persons against whom such
order was issued may petition the board
for a hearing A hearing shall be held
wiihm seventy-two (72) hours after receipt
ol the petition for hearing, or as soon
ihereulter as practicable, and petitioners
m.i) present proof that the emergency
declaration or emergency procedures shall
be tcTimnutcct in whole or in part.
(e) The procedures for emergency orders
provided for herein are exclusive, and the
procedures required by any other law need
not be followed.
M 7-12 2 Suit on behalf of state to
restrain pollution. In addition to the
Authority loniained in Chapter 12, section
I. above, and notwithstanding any other
pimision uf this article, the technical
secretary ol ihe board or the agency, upon
receipt ol evidence that a pollution source
or combination of sources, including an in-
dustrial user of a publicly-owned treatment
plant, is presenting an imminent and sub-
stantial cndangerment to the health of per-
sons, or to the welfare of persons where
suit) cndangerment is to the livelihood of
such persons, may bring suit on behalf of
the slate in the appropriate court to im-
mediately restrain any person causing or
contributing to (he alleged pollution to
slop the discharge or introduction of con-
taminants causing or contributing to such
pollution or to take such other action as
may be necessary.
13-7-12-3 Aaatataoc* to abate or remedy
tm«r|««c!«t — Rtcomy of coati —
Authority aMifkHttJ. (a) For the purposes
of this section, "assistance" meant
supplies, materials, services and equipment
to:
(1) Prevent the discharge of any con-
taminant; or
(2) Control, contain, isolate, neutralize.
remove, store, or dispose of any contami-
nant already discharged into or on the air,
land or waters of this state.
(b) The technical secretary of the board,
the technical secretary of the appropriate
agency, or a designated agent of such a
technical secretary may order and provide
assistance to abate or remedy an emergen-
cy, on private or public property, caused
by the discharge, or impending discharge,
of any contaminant into or on the air, land
or waters of this state which poses an im-
minent and substantial danger to public
health or the environment whenever:
(I) The assistance must be immediate to
be efficacious; and
(2) Any person responsible for abate-
ment or remedying the emergency
(A) Cannot be determined or located; or
(B) Has refused or failed to take prompt
and effective action to abate or remedy the
emergency.
(c) For the purpose of this section the
technical secretary of the board, the
technical secretary of the appropriate
agency, or a designated agent of such a
technical secretary is authorized to request
the direct purchase of supplies, materials,
services and equipment for immediate use
without calling for bids under 1C 4-13-2-10
(b).
(d) In addition to any civil or criminal
penalties under this article, the board or
any agency may recover the cost of
assistance provided under the section from
any person responsible for the emergency
by commencing a civil action in any court
of competent jurisdiction. Officials who
collect moneys under this subsection shall
remit the moneys to the treasurer of the
state of Indiana, and such moneys shall be
deposited in the environmental manage-
ment special fund.
(e) The board or the appropriate agency
may accept on behalf of the state any reim-
bursement for assistance provided under
this section from the federal government.
Such reimbursements shall be remitted to
the treasurer of the state of Indiana for
deposit in the environmental management
special fund.
(f) Notwithstanding any other
provisions of this article, the authority
granted under this section is in addition to,
and may be exercised independently of,
any other authority contained in this
chapter.
1276-80
(I I./ IM[ HUHMti Of NA1IONAI AHAIRS !NC WASHINGTON DC 20037
8
13
-------
371:0208
STATE AIR LAWS
Chapter 13. PwultlM
I.VM.VI CIHI penaJtlw. (a) Any person
who violates any provision of (his article,
or my regulation or itindard adopted pur-
suant to thu article, or who violate* any
deUrmmHtion or order of the board or any
agency made pursuant to thu article, shall
be liable to a penalty nul to exceed twen
ly.five thou»and dollar* ($25,000) per Hn>
of any violnlion which may be iccovered in
a civil jiiion commenced in any court of
competent jurisdiction by the board or any
agency. and also a 'cquest may be made in
any vuth m lion that such person br enjoin
ed from continuing Mich violation
er«oii named in or dinMed by
any emergency order of the bn;ud or an
agency and who violulei such order shall
be liai>lf for an additional penalty not to
e*c«ed five hundred dollars (SMM)) pei
hour ot violation, which shall be assessed
in an net ion brought hy the bnaid or an
agency in wny court of competent jurisdic-
tion
13-7 I3-.Z Special fund. All moneys
collected pursuant to Sec. I of this chapter
shall be remitted by the officials collecting
tht »ame to !he treasurer of the state of In-
diana, and credited to a special account of
the state to be established by the auditor of
state and to be known as the "I n-
vironmental Management Special Fund "
It is hereby declared to be the policy of the
stale of Indiana that the moneys on deposit
in the Environmental Management Special
Fund •hall be used exclusively lor the pur
po««* of the board and the agencies The
revenue* accruing lo the fund are linchv
appropriated lo the sluic boa id ol health
lor purpone* ol (hi* article, however, any
expenditures for projects authon/cd by the
hoard mu»l be approved by the governor
.ind the Mate budge) agency
A certain urnount of the fund shall he sci
.mdc h\ ;'e state budget agent. \ willi the
jjoverno''s approval ID t>c expended for
emerxcnt , purpose* nmkr 1C M-7 12-luy
ihr hoaril, or its designer, without ad-
ditional jppiovu! fr>'m tlir si.i''' )>ud|rci
iifjCi'i > i" ihc j'ovn inn
1.1-7-! < 1 Misdemeanor violations »f ar-
ticle f'rnillli-v (-,() Any person who m-
icntinn.ilU knowingly, recklessly 01
/legliginlly violates this aiticle. 01 any per
nut, condition, or limitation issued undrr
ihi.i art,tie, shall be punished by a fine of
not leu than two thousand five hundred
dollar* (S2.MX)) nor more than twenty-five
thousand dollar* ($23,000) per day of
violation, or by imprisonment for nol more
than one (I) year, or by both. If the convic-
tion it for a violation committed after n
first conviction of such person under this
subsection, punishment nhall be a Tine of
not more than fifty thouiand dollars
(SJO.OOO) per day of violation, or by im-
prisonment lor not more than two (2)
years, or both.
(b) Any person who knowingly makes
any false statement, representation, or '.-er-
Mlication in any application, record,
report, plan, or other document filed or
required to be maintained under this arti-
cle or who lalsilies, lumpers with, or
knowingly rrndeis inaccurate any
immiioiui} device 01 method required to
be mainl.imcd under this article, shall
upon conviction he punished by a fnu- of
nol uioic than iin thousand dollars
(UlU.dOOi, or bv imprisonment for not
more ihi'ii sin (6) months, or both.
lot pin post i ol this section, "per-.on"
IIKMTIV in .uMitiDii lo the (icfir'ilion n 1C
t'. 'II I ', .KIN irs|>.iiiMhle C'irpoiuU ol-
ticer
(c) Am | erson nho knowingly
(I) 1 1. msporis .ui\ h.i/,irdous waste 10 a
laciliH which does nol have an opcrniion
permit or approval to accept such waste;
(2) Disposes, treats, or stores any ha/ar-
dous wjsle without having obtained a |>er-
mit thcretor, or
(I) Makes any l.ilse slaiemcm or
leprcscni.ilnin in .my application. Libel,
manifest, lecord, report, permit, or other
document filed, in. mil, lined, or used under
this article with rcg.ird In ha/ardous waste;
shall he punished bv a fine of not more
than twenty-live thousand dollars
($25.000) for each day of violation, or by
imprisonment nol lo exceed one (I) year,
or both II the convMion is for a violation
committed .iller .1 liisl conviction of such
person under this section, punishment .shall
lie l>y ,i fine ol nol more than fifty thou-
sand doll. us ($M).(XX>) |>cr day ol violation,
orh> impiisonmcnl lor not more than Iwo
(2) yeais, 01 both
( 'haplti N 1'iililu Water Supplies
|Oinmed|
( h a p t r r I
( i> n n e c i i o n n u d
('li)iplfi U>. Mi-iii-IUnrous I'IOVI
H-"1 16- 1 < iiiiliiiuiim-f of certain
i'irs Hiid hoaids.
(.0 I 01 die puipi^s's ot sucrc
-------
LOUISIANA
Louisiana has assessed civil penalties for violations of environmental
regulations since 1949 when the state began assessing penalties for water
pollution violations. In 1976, all environmental programs within the state
were consolidated under one organization—The Office of Environmental Affairs
within the Department of Natural Resources. This agency administers a civil
penalties program for violations of air, water, and hazardous waste
regulations. In 1979, Louisiana increased the minimum penalty from $100 to
$2,500 in order to receive interim authorization to administer RCRA.
Louisiana prefers to use penalties as a last resort when other enforcement
techniques fail: between October 1980 and June 1981, the state assessed only
three penalties for violations of air pollution regulations.
Penalty Procedures/Review Process
Louisiana conducts systematic annual inspections of air pollution sources
and also conducts inspections in response to complaints. Inspectors document
violations but do not have the authority to assess fines. Officials feel that
allowing inspectors to write "traffic ticket"-type fines might jeopardize
their credibility with sources.
Louisiana believes that the most appropriate way to handle all but the
most flagrant or serious violations is through compliance orders. Enforcement
officials have several other options available, however. These include:
(1) letters of notification which ask the source to explain the violation;
(2) assessment of civil penalties; (3) revokation of permits or licenses; and
(4) criminal or civil court action. Officials try to select the approach that
will bring the source into compliance as quickly as possible with the least
expense to the taxpayer.
State legislation empowers three groups to assess civil penalties: the
Environmental Control Commission, the Assistant Secretary of the agency, and
the District Court. All of the penalties to date have been assessed by the
Commission. The Assistant Secretary and the Administrator of the appropriate
Division (Air, Water, etc.) are usually responsible for making recommendations
to the Commission about when to seek civil penalties against a violator.
The Commission, which is composed of seven individuals who head up large
state departments, usually follows the staff's recommendations. If it decides
to assess civil penalties, the Commission first asks the staff to reach an
agreement with the violator about the proper amount of the penalty. If these
negotiations fail, the Commission either schedules an adjudicatory hearing or
refers the case to the courts. Usually, the Commission only seeks court
action if it believes that the violator would appeal the Commission's decision
to the court anyway. Court proceedings are both expensive and time-consuming;
in some cases it can take years before the case is finally resolved. Even
when the Commission files suit, however, the violator often ends up coming to
the Commission seeking a settlement.
10
-------
Program Effectiveness
Louisiana feels that the primary purpose of its civil penalties program
is deterrence. It believes that companies are more cooperative in negotiating
compliance agreements because they realize that the state will not hesitate to
aaiasi civil penalties if the source does not cooperate.
References
1. Eldredge, George. Louisiana Department of Natural Resources. Telephone
conversation with Lisa Baci, GCA/Technology Division, January 7, 1982.
2. Von Bodungen, Gustave. Louisiana Department of Natural Resources.
Written communication with James Morgester, Chief, Enforcement Division,
California Air Resources Board, July 2, 1981.
3. Louisiana Environmental Affairs Act. Louisiana Revised Statutes, Title
30, Chapter 2, Section 1073 E, G, and H.
11
-------
ATTACHMENT 1: Louisiana Environmental
Affairs Act, Louisiana Revised Statutes, Title
30, Chapter 2, Section 1073 E, G, and H.
12
-------
301:0104
STATE AIR LAWS
on any environmental impact uatemcrm
relative to public health.
|)«79, Pirn* aapUcalloM and variance
Any person seeking a permit, license,
refiitration, or variance thai) Hie a written
application for tuch with the commission.
The commotion thai) promptly consider
tuch application and lake such uction
thereon a* !( decmi appropriate. Specific
procedure* for the filing and consideration
of tuch applications shall be adopted and
published by the commission within one
hundred eighty days from the effective
date of this Chapter.
JI07I. Fkltttag permits, rt-Ristrallons,
variances and detract
All presently valid licenses,
registrations, variances, or permits
heretofore granted hv flu ai'encv having
prior junsdiciion over any .uiwiis coveicd
hv this I'lvpter shall continue m ellcvi ac-
cording to (heir present tern)*, ;ind con-
ditions unless revoked foi c.nm:
$1072, Conunittlon Hearing
Any nider or unv suspension or ievoea-
uon ol ii permit, license, or variance issued
hy the assistant secretary shall be effective
upon issuance and shall become final, un-
less, no later than thirty days after the
order or notice of the suspension or re-
vocation is served, the person or persons
named therein request a public hearing.
Upon such request, the commission shall
promptly conduct a public hearing.
11973. F.*forcMN«M
A. dcneral enforcement power
Any civil uclion necewury to carry oul
the provision* of this Chapter shall he
brought by ihe department upon the direc-
tion ol thr commission und in such suits
the commlttion shall be represented by the
allorncy general.
B. Civil suit for damages.
The department may in the name of the
Mate bring a civil action to recover any
damages resulting from a violation of any
requirement of this Chapter or any rule,
regulation, or order adopted thereunder.
In such Miils, the department shall be
represented by the attorney general and
«uch actions may be brought in the district
court (Living civil jurisdiction in any parish
in which jny damage has occurred, in any
punnh where the defendant resides, or is
domiciled or has his principal place ol
buimrss If the court determines thai ,i
violation ol this Chapter has occurred, in
uMc'.wng durriMges the court sh.ill lake into
consideration the CDS! ol restoring the
affected area to its condition :is it existed
before the violation, its present market
value, and include therein the costs of all
reasonable and necessary investigations
made or caused to be made by the state in
connection therewith No civil proceedings
brought under this Subsection shall liiiiil
or prevent any other actions or
proceedings which are authorized by
Subsections A. C, D, E, and G of this Sec-
tion or by any other provision of this
Chapter which authorizes the commission,
the department, the assistant secretary, or
any authorised technical secretary to take
any action or issue any order to enforce the
provisions ol this Chapter.
C. Compliance orders; emergency cease
and desist orders
(I) If the commission, the assistant
secretary or the authon/ed technical
secrctaiv acting in behalf ol ihe commis-
sion when that authority has been
delegated by the commission, determines
that violation of this Chapter is occuning
or is about to ou ur which violation is of
stu h magnitude :is to require immediate
action to (ireveni urcp.irable damayi. to
I hi: eiiMiomncnt i>i ii' a serious thre if to
li/V or safely based -HI rccogm/ed cn'eria
ur standards or both, the commission, the
assistant sccreian or the authon/ed
techmc:il secretary m.iy issue an emcigen-
cy cease .ind de.'isi order. When the com-
mission, the us.sisianl secrelary or an
authon/ed technical secretary finds that
the ordered cessation of operations, or any
portion thereof, will not completely abate
the irreparable damages to the environ-
ment, in addition to the emergency cease
und desist ordei, affirmative obligations
may be imposed on the violator requiring
him to take whatever steps the commission,
the assistant secretary or the authorized
technical secretary deems necessary to
abate the irreparable damage to the en-
vironment. The issuance of such an
emergency cease und desist order shall not
be subject to the limitations and for-
malities relating to notice and hearings im-
posed with regard to "adjudications" un-
der H S 4s> 951 ct seq but sh.ill be subject
to all other applicable provisions ol law.
The emergency ce.i.se and desist order shall
remain in force until a hearing can be held
by the commission concerning the situa-
tion which prompted the emergency order,
but m no event shall such an emergency
order remain in force longei than fifteen
,days
(2) Whenever the commission, the assis-
tant secretary or the authon/cd represen-
tative of the assistant secretary determines
that a violation ol any requirement ol this
C haplei has occurred or is about to occur,
it shall give notKC by registered mail.
return receipt requested, to ttie violator of
hi.s failure to comply with such require-
ment 01 it shall proceed undct its authority
in Paragraph (-<) of this subsection. If such
violation extends beyond the thirtieth day
after notification, the assistant secretary
shall either issue an order requiring com-
pliance within a specified lime period or
commence a civil action for appropriate
relief, including a temporary or permanent
injunction.
(3) Whenever the commission, the assis-
tant secretary or an authorized represen-
tative of the assistant secretary determines
that a violation of any requirement of this
Chapter has occurred or is about to occur,
the commiaaiofl, the aaiiatant secretary or
the authorized representative of the assis-
tant secretary snail either issue an order
requiring compliance within a specified
time period or the commission shall com-
mence a civil action for appropriate relief,
including a temporary or permanent in-
junction.
D. Requirements of compliance orders
Any order issued under this Section
shall state with reasonable specificity the
nature of the violation and specify a time
for compliance and in the event of non-
compliance, assess a civil penalty, if any
which the commission determines is
reasonable taking into account the
seriousness of the violation and any good
faith efforts to comply with the applicable
requirements.
h. Penalties
(I) Kxcept as otherwise provided by law,
anv person to whom a compliance order or
a cease and desist order is issued pursuant
to R.S. 30:I073(C), who fails to take cor-
rective action within the time specified in
said order, may be liable for u civil pennl-
ty, to be assessed by the commission, or
assistant secretary, or court, of not more
than ten thousand dollars for each day of
the continued noncompiiance and the com-
mission, in order to enforce the provisions
of this Chapter, may impend or revoke
any permit, compliance order, license, or
variance which had been issued to said per-
son.
(2) No penalty shall be assessed until the
person charged shall have been given
notice and an opportunity for a hearing on
such charge. In determining whether or not
a civil penalty is to be assessed and in
determining the amount of the penalty, or
the amount agreed upon on compromise.
the gravity of the violation and the
demonstrated good faith of the person
charged in attempting to achieve rapid
compliance, after notification of a viola-
tion, shall be considered. In the event that
the order with which the person failed to
comply was an emergency cease and desist
order, no penalty shall be assessed if it
appears, upon later hearing, that said
order was issued without reasonable cause.
F. Criminal penalties
Except as otherwise provided by law,
any person who willfully, negligently, or
knowingly discharges, emits, or disposes of
any substance in contravention of any
provision of this Chapter or of the
regulations or permit license terms and
Environment Reporter
13
-------
LOUISIANA ENVIRONMENTAL ACT
S531
391:0105
n
condition* in pursuance thcreol. shall he
lined not more Ihttn twenty-five thousand
dollars per dcy of violation urn) costs ol
prosecution, or imprisoned for not more
than one year, or both and in such m-
mancei the prosecution may be instituted
by the diitrict attorney having criminal
jurisdiction. Nd diitrict attorney nor the
attorney general shall institute any
criminal prosecution for a violation of any
provision of this Chapter against any per-
son while such person, with respect to the
same violation is: (I) under any order
issued pursuant to this Chapter lo enforce
any provision of this Chapter, or (2) a
defendant in any civil OIKUIICIUC
of llic .illorney general, m,i\ s.-ille m
rcsolu: in ils discretion. ,nul .is il nu\
deem advantageous lo the sl.ilc, .ins MIII
undcilnken lor recovers ol an\ pen.ills 01
lor the purpose of compelling uimpli.mc.
with in*, provision ol tins < hapler or the
regulations or permit liiciisr terms and
londiluins applicable llu'icio
$1074. Clllien nulls
(I) Fxeept .is provided in Subsection (1)
nl this Scclion. any pi r.on liavmg .in m
lercsl. winch is or may lie adveisclv
iilleelcd, m.iy commence a ml .11.11011 on
his own Ucii.iil ,i|i:nnst .MIS person whom
he alleges lo he in viol.ilinii ol lliis < li.i|)lei
or of the regulations promulgated
hrreunder The action nmsi IK hcwUi
either in the district court in the parish in
which the violation or alleged violation oe-
curs or in the district court of the dominie
of the alleged violator, and shall be al-
lorded prefetenluil hearing hv the court
II at the hearing on the on lei. il appears
ti, tlic satisfaction nl the couit lli.it a vmla-
lion has occurred, or is ocumng the conn
may, in order lo enlonc the piousmns ol
thus Chapter, assess a uul penally not to
exceed ten thousand dollars lor each das ol
the continued noncompliance and the
court may. il appropriate, issue a tern
pm.irv ()r permanent ui|iiiKiion
I he court in issuing ans linai ordci in
liny action brought pursuant lo this Sec-
tion, niiiv award costs ol loml including,
ic.isonnhlc altornc>s and expert witness
fees lo the prevailing parts I he court ma)
also award actual damages to the prevail-
ing plaintiff The judgment ol the court at
thr dealing, or suhscijuenlls on a petition
lor lining the penally il tin. violation is a
<
-------
MISSISSIPPI
The Bureau of Pollution Control in the Department of Natural Resources is
responsible for administering the civil penalties program. This program,
which was contained in Mississippi's 1972 SIP, has been in operation over 10
years. Currently, there is a $50 minimum and $25,000 maximum penalty for air
pollution violations.
Penalty Procedure/Review Process
When a violation is detected, through stack tests or notification by the
industry, the Bureau of Pollution Control will work informally with the
violator to bring the firm back into compliance. Usually, this is
sufficient. However, when the Bureau is not satisfied, it must sent a letter
of complaint which specifies the apparent violation and requests the
violator's presence at a hearing; all recipients must attend the hearing.
The hearing is held in front of the Commission which is comprised of
seven members—one from each Congressional District and 2 at large. These
members have some working knowledge of issues affecting the Department of
Natural Resources. The Commission conducts the hearing, using judicial
procedures, to establish whether the apparent violator is guilty or innocent.
If the violator is found guilty, the Commission sets an "appropriate"
penalty. The violator can appeal the decision to the State Chancery Court and
then to the State Supreme Court. If the violator refuses to pay, the case is
turned over to the Attorney General. It is important to recognize that the
director of the Bureau of Pollution Control cannot assess civil penalties.
Program Effectiveness
Usually Mississippi assesses only 2 or 3 air pollution penalties each
year; fines usually range from $500 to $1000. Administrative penalties are
more frequently used for water pollution violations which are easier to prove
than air pollution violations. Despite these limitations, penalties often
reduce the turnaround time of a violation from 6 months to within 15 days.
According to Mississippi officials, administrative fines enable the Bureau to
handle many more cases than it could if it had to rely on the courts to impose
fines. In addition, the Bureau can prove its case more easily in front of the
commission than it could before a judge who would require more evidence before
making a finding. Officials believe that civil penalties force industries to
take air quality more seriously than they may have in the past.
References
1. Wylie, Dwight. Mississippi Department of Natural Resources. Telephone
Conversation with Andrew Bagley, GCA/Technology Division, Janurary 19,
1982.
2. Harper, John W. Mississippi Department of Natural Resources. Written
Communication with Andrew Bagley, GCA/Technology Division, August 28,
1981 •
3* Mississippi Air and Water Pollution Control Act. Mississippi Code, Title
49, Chapter 17 - Pollution of Waters, Streams, and Air. Sections
49-17-31, 35, 41, and 43.
15
-------
ATTACHMENT 1: Mississippi Air and Water
Pollution Control Act, Mississippi Code, Title 49,
Chapter 17-Pollution of Waters, Streams, and Air.
Sections 49-17-31, 35, 41, and 43.
16
-------
49-17-31 Proceedings before Commission
49-17-31. (a) Whenever the commission or an employee thereof has
reason to believe that a violation of any provision of Sections 49-17-1
through 49-17-13 or Sections 17-17-1 through 17-17-47 or a regulation or
of any order of the commission has occurred, the commission may cause
a written complaint to be served upon the alleged violator or violators.
The complaint shall specify the provisions of said sections or regulation
or order alleged to be violated and the facts alleged to constitute a
violation thereof, and shall require that the alleged violator appear
before the commission at a time and place specified in the notice and
answer the charges complained of. Said time of appearance before the
commission shall be not less than ten (10) days nor more than thirty-one
(31) days from the date of the service of the complaint; however, the
commission may set a special date for such appearance upon written
request of the person cited in the complaint.
(b) The commission shall afford an opportunity for a fair hearing to
the alleged \iolator or violators at the time and place specified in the
complaint. On the basis of the evidence produced at the hearing, the
commission shall make findings of fact and conclusions of law and enter
sueh order n< in lu opinion will best further the purposes of Sections
49-17-1 through 49-17-43 and Sections 17-17-1 through 17-17-47, and
shall give written notice of such order to the alleged violator and to such
oilier persons as shall have appeared at the hearing or made written
request for notice of the order, and the commission may assess such
penalties as hcicinaftcr provided.
(c) l:\ecpt us otherwise expressly provided, any notice, or other
instrument issued by or under authority of the commission may be served
on aiu person affected thereby personally or by publication, and proof
of such service may be made in like manner as in c(\sc of service of a
Munition*, in a civil action, such proof to be filed in the office of the
commission; or such service may be made by mailing a copy of the
notice, order, or oilier instrument by certified mail, directed to the
person alfccied at his last known post-office address as shown by the
Iilfs or records of the commission, and proof thereof may be made by
§49-17-33. Hearings. ____ '
The hearings herein provided may be conducted by tin- commis-
sion itself at a regular or special meeting of the commission, or
the commission may designate hearing officers who shall have the
power and authoriu to conduct such hcanngs in the name of the
POLUTION OK \\"ATF.KS. AJK, ETC.
§49-17-
mav warrant. However, on ilie fourth 1 ucsd.n <>i t-.uh ti
leasi five (5) members of ihe tummissj<>:i xh.ill cumin- ...
commission's offices at Jackson. Mississippi, for ihc
hearing (.he substance of complaints issued, the
alleged violators, and the determining of what penalties if .1:.
should be levied and the imposition of the penalties. ii a:i\. .;:.
also for such conferences with alleged violators and/or others .
may seem necessary or appropriate. Am person oidered to .ijiju.
for an alleged violation shall have the right to lequcsi a heai:;.
before a majority of the commission if he prefers and such
hearing may then be set for the fouitii Tuesday, the next regi:1.
meeting of the full commission", or specialK. A \eibatim recoid <
(.he proceedings of such hearings shall be taken and filed with, ti-
commission, together with findings of fact and conclusions of L
made by the commission. Witnesses v\ho arc subpoenaed sh^
receive the same ,fees and mileage as in ti\il actions. In case •
contumacy or refusal to obey a notice of hearing or subpoeii
issued under this section, the circuit court shall ha\e jurisdictii
upon application of the commission or its repiesentaiive. to is.si:
an order requiring such person to appear and testify or piodiu
evidence as the case may require and am failure to obey sn,
order of the court may be punished by such court as contemi
thereof.
SOURCES: Laws, 1972. ch. 505, § 9, eff from and after passage (approved Ma
IS, 1972).
ALR Annotations—
Necessity of showing sciemcr, knowledge, or iiucm. in |im«ctiiti<>n fur \iol.
lion of air pollution or smoke control M.UUIC or ordinance. 46 Al.K'UI 738.
Air pollution: evidence as 10 Ringlemann Chart obu-naiion. 51 A1.R3J \i)'2i>.
§ 49—17—35. Request for hearing.
Any interested person shall have the right to request the con
mission to call a hearing for the purpose of taking action i
respect to any matter within the jurisdiction oi the commission b
making a request therefor in writing, t'pon receipt of any siu
request, the commission shall conduct such investigations as
deems necessary and may call a special hearing or may scheciu!
such matter for its next regular meeting or hearing day. and alu
such hearings and with all convenient speed and in any c\ei
within thirty (30) days after the conclusion of such hearing sli i
take such action on the subject matter thereof as it may deei
appropriate.
SOURCES: Laws. 1972, ch. 505, § 13, off from and afccr passage
-------
'.' JLSA . ,u\ C-- V. .\;i.X>. A IK Kit,.
oo
§ 49—17—41. Appeals to chancery court.
In addition to any other remedies that might now be available,
am person or interested party aggrieved by any order of the
commission, shall have a right to file a sworn petition with the
commission setting forth the grounds and reasons for his com-
plaint and asking for a hearing of the matter involved, provided
that no hearing on the same subject matter shall have been
previously held. The commission shall thereupon fix the time and
place 'of such hearing and shall notify the petitioners thereof. In
such pending matters, the commission shall have the same full
powers as to subpoenaing witnesses, administering oaths, examin-
ing witnesses under oath and conducting the hearing, as is now
\ested In law in the Mississippi Public Service Commission, as to
hearing before it, with the additional power that the executive
director may issue all subpoenas, both at the instance of the
petitioner, and of the commission. At such hearings the petitioner,
and any other interested party, may offer, present witnesses and
submit c\idencc.
Following such hearing the final order of determination of the
commission upon such matters shall be conclusive, unless the
petitioner, or such other interested party appearing at the hearing,
shall, within fifteen (15) days after the adjournment of the meeting
at which said final order was made, appeal to the chancery court of
the county where the hearing was helfi, or of the situs in whole or
in pan of the subject matter of the hearing by giving a cost bond
with sufficient sureties, payable to the state in the sum of not less
than one hunched dollars (Si00.00) nor more than five hundred
dollars ($500.00), to be fixed in the order appealed from, to be
jiifci VM;.I j;iu jppro-. <-•:..
sioi<, «':HJ siul! forthwith cc!til\ the >.:.. c together \\uii .\ o <.-»!:.
rop\ of ihe irtord ot ihe (.ommissi.-ui in the m.iitf! U;
ch.iiKVi;, com i to which ;he .ippe.i! is Liken. \\iiuh vli.ill ihc !<.•:•:
become the record of ihe c.iu\e. An appeal to the ih.uui.-ii i. .
as proudcd herein siuli not M.I\ the execution of an oidcr ..;
commission. Any part) annexed In .in order of the imumiss..
mav, within said fifteen (15) da\s after the adjoinnnient c:
commission meeting at which said final order was filtered, pcni:
the chancery court of the situ*, in whole 01 in part of the sub •
matter for an appeal with supersede-as and the chancellor v
grant a hearing on snid petition and upon guild cause shown r.
grant said appeal with supci s'edeas: the appellant shall IH rcqu::
to post a bond with sufficient suteties aicording to law in
amount to be determined by the chancellor. Appeals shall
considered only upon the record as made before the loiimiissii
The chancery court shall alwavs be deemed open lor hearing
such appeals and the chancellor may hear ihc same in teiin in:
or in vacation at any place in his district, and ihe same shall h.i
precedence over all civil cases, except election contests, i.
chancery court shall review all questions of law and of fact, i! •
prejudicial error be found, the matter shall be affirmed .;
remanded to the commission for enforcement. If prejudicial en
be found, the same shall be reversed and the chancerx court, si:.
remand the matter 10 the commission for .ippiopriate actin:,
may be indicated or neccssan under the circumstances. Appe.
may be taken from the chancery conn to the supreme court "in i'
manner as now required b\ law, except thai il a supersede.^
desircd by the party appealing to the chancerv court, he may ap;
therefor to the chancellor thereof, who shall award- a writ
supersedeas, without additional bond, if in his judgement male:
damage is not likely to result therein, but otherwise, lie sh
require such supersedeas bond as he deems proper, which shall
liable to the state for such damage.
SOURCES: Laws, 1972, ch. 505, § 15, eff from and after passage (approx
May 18, 1972).
JUDICIAL DECISIONS
In .in action by a cm/ens' jjiotip s.mslx ihc IIC.IIIIIK rcc]iiiit:mciii
challenging ihc issu.incc ol a XX.IMC &-J'i-17—11. dcspiu- ihc pjoliibiiii'ii
wilier discharge pcimii lo an indnMiial thni section ul multiple healings mi
pl.im, a pulil.c he;irin£ soleh foi ilic same «.til>j<-n m.nicr. S.nc die H.a. 1
purpose of permitting micicsted pin- N Mississippi An & \V.iiei 1'ulln
lies u> c.\prt-.« llicir \ions »n!i n-spt-ct Control Com. (\fiss) ;M I So 2d Oh.
to disch.irgc permits was nmillicicm to
-------
§ 49-17-43 CoNbtKYATios AND ECOLOGY
§49-17-43. Penalties.
49-17-43. (a) Any person found by the commission violaiing any of
the provisions of Sections 49-17-1 through 49-17-43, or any rule or
regulation or written order of the commission in pursuance thereof or
any condition or limitation of a permit, except a permit required under
the Solid Wastes Disposal Law of 1974 (Sections 17-17-1 through
17-17-47), shall be subject to a civil penalty of not more than Twenty-five
Thousand Dollars (S25,000.00), for each \iolaiion, such pcnahv to be
assessed and levied by the commission after a hearing as provided
hereinabove. Appeals from the imposition of the civil penalty may be
vO
-------
taken to ihc chancery court in the same manner as appeals from orders of
the commission. If the appellant desires to stay the execution of a civil
pennliv assessed by the commission, he shall give bond with sufficient
resident sureties of one or more guaranty or surety companies authorized
10 Jo business in this state, payable to the State of Mississippi, in an
amount equal to double the amount of any civil penalty assessed by the
commission, as to which the stay of execution is desired, conditioned, if
the iudement shall be affirmed, to pay all costs of the assessment entered
against "the appellant. Each day upon which a violation occurs shall be
deemed a separate and additional violation.
Any person violating any provision of the Solid Wastes Disposal
Law of 1974 (Sections lf-17-1 through 17-17-47), any rule or regulation
made pursuant to that law, or any order issued by the commission under
the authority of that law shall be subject to the penalties provided in
Section 17-17-29.
(b) In lieu of, or in addition to, the penally provided in subsection
(a) of this section, the commission shall have power to institute and
maintain in the name of the state any and all proceedings necessary or
appropriate to enforce the provisions of Sections 47-17-1 through
49.17.43, rules and regulations in force pursuant thereto, and orders and
permits made and issued under those sections, in the appropriate circuit,
chancery, county or justice court of the county in which venue may lie.
The commission may obtain mandatory or prohibitory injunctive relief,
cither temporary or permanent, and in cases of imminent and substantial
hazard or endangerment as set forth in Section 49-17-27, it shall not be
necessary in such cases that the state plead or prove: (i) that irreparable
damage would result if the injunction did not issue; (ii) that there is no
adequate remedy at law; or (iii) thai a written complaint or commission
order has first been issued for the alleged violation.
(c) Any person, who violate* any of the provisions of, or fails to
perform any duty imposed by. Sections 49-17-1 through 49-17-43 or any
rule or rcinilatioii issued hercundcr, or who violates any order or
dciaminntion of the commission promulgated pursuant to such sections,
and causes the death of fish or other wildlife shall be liable, in addition to
the penalties provided in subsection (a) and/or (b) of this section, to pay
10 the Mate an additional amount equal to the sum of money reasonably
necessary to restock such waters or replenish such wildlife as determined
In- ihc commission aficr consultation with the Mississippi Commission
on Wildlife Conservation. Such amount nviy be recovered by the
commission on behalf of the state in a civil action brought in the
appropriate county or circuit court of the county in which venue may lie.
ui) Any person who owns or operates facilities which, through
rr>.iJvciiturc. happenstance or otherwise, cause pollution necessitating
immediate remedial or clean-up action shall bj iir.bie for she COM o: - .
remedial or clean-up action and the commission may recover the co»: .-
same by a civil action brought in the circuit court of the county i.i u:.\
venue may lie. This penalty may be recovered in lieu of or in addition :o
the penalties provided in subsection (a), (b) and/or (c) of this scctior..
In the event of the necessity for immediate remedial or clean--,:
action, the commission may contract for same and advance funds f.v;
the Water Pollution Abatement Grant Fund to pay the costs thcrco .
such advancements to be repaid to the Water Pollution Abatement Grj.i:
Fund upon recovery by the commission as provided above.
(e) It is unlawful for any person to: (1) discharge pollutants i::
violation of Section 49-17-29 or in violation of any condition or
limitation included in a permit issued under Section 49-17-29 or (2'
introduce pollutants into publicly owned treatment works in violation of
pretreatmcnt standards or in violation of toxic el fluent standards; aiu'.,
upon conviction thereof, such person shall be punished by a fine of ru :
less than Two Thousand Five Hundred Dollars (S2,500.(>0) nor inore
than Twenty-five Thousand Dollars (S25,000.00) per day of violation.
(0 All fines, penalties and other sums recovered or colkvicd by (!.:
commission for and in behalf of the state under this section shall lv
deposited in the Water Pollution Abatement Grant Fund established tn
Sections 49-17-61 through 49-17-70, and the commission is authorised ;•.>
receive and accept, from any funds and all avai'a'ric soiree* \\!V.N,V. .
additional funds to be deposited in such fund and expended fur tl.
purpose of remedial, clean-up or abatement actions involving pollution
of the land, air or waters of the state in violation of Sections 4l)-17-l
through 49-17-43, any rule or regulation or written order of the
commission in pursuance thereof, or any condition or limitation of a
permit.
-------
NEVADA
The State of Nevada has used administrative fines to enforce air
pollution regulations for approximately 10 years. The Department of
Conservation and Natural Resources' Division of Environmental Protection and
the State Environmental Commission share the responsibility of running the
program. DEP conducts inspections and issues citations for violations. All
citations are recorded in a log maintained by the Environmental Commission.
The Commission is also responsible for conducting hearings. Two local air
pollution control agencies have jurisdiction over sources in Clark County (Las
Vegas) and Washoe County (Reno). These agencies are free to adopt their own
emission standards and control programs as long as they are equivalent to or
more stringent than the state's. In 1981, the state handled 90 violations and
assessed four fines (all under $100); two cases were referred to the
Environmental Commission. Most violations were resolved through warnings or
informal conferences initiated by the DEP.
Penalty Procedures/Review Process
Nevada's enabling legislation defines two types of violations, major and
minor, and establishes penalty ceilings for each ($5,000 and $500,
respectively). All minor violations become major violations upon the
occurrence of the fourth violation in any 12 consecutive months. The State
Environmental Commission has promulgated a penalty schedule for minor
violations. As noted below, fines double for a second offense and double
again for a third offense. Fines for major violations are left mainly to the
discretion of the DEP and Commission. The Commission has adopted a policy of
scheduling a formal quasi-judicial hearing whenever a source has two
violations for the same offense within 12 months.
Minor Violation Fine Schedule
First Second Third
offense offense offense
Open burning $25 $50 $100
Incinerator burning
<U kg/hr [25 lb/hr]) $50 $100 $200
Fugitive Dust $50 $100 $200
Organic solvents and other VOC $50 $100 $200
odor $50 $100 $200
When a field inspector discovers a violation, he issues a warning. This
warning allows the source a resonable amount of time to find out what the
problem ia and take corrective action. If the problem is not resolved, the
DEP asks the source to come in for a conference to negotiate compliance. A
refusal to implement corrective action could be considered a second violation
which would bring the source before the Environmental Commission for an
adjudicatory hearing. The source can also request a hearing before the
Commission if it disagrees with the DEP's citation.
21
-------
The Environmental Commission itself is composed of nine people: four are
State directors for Wildlife, Agriculture, Water Resources, and Forestry, one
is a designate from the State Board of Health, and four are members appointed
by the Governor. The Commission holds quasi-judicial hearings: it makes
findings of fact and conclusions of law and also issues orders. Orders may
contain corrective actions, fines, or both.
A violator may appeal decisions of the Commission to the court. The
court review is confined to legal issues and thus is not a de novo
proceeding. One option open to the court is to remand the case back to
Commission for a rehearing. According to the Commission's Executive
Secretary, no source that he knows of has ever appealed the Commission's
decision to the courts.
Program Effectiveness
Nevada officials indicated that the purpose of the administrative fines
program is deterrence, not punishment or compensation. The state prefers to
handle the majority of violations through negotiation; officials try to use
fines only as a last resort. Nevertheless, they believe that the fines
program works well in accomplishing its goal. The Commission's Executive
Secretary believes that the policy of holding automatic hearings for second
violations has improved the program's effectiveness. He also feels that using
the revenues collected to support county school programs is a good feature of
the program that should not be changed.
References
1. Hannah, James. Nevada Environmental Commission. Telephone Conversation
with Lisa Baci, GCA/Technology Division, January 20, 1982.
2. Serdoz, Dick. Nevada Department of Conservation and Natural Resources.
Written communication with Lisa Baci, GCA/Technology Division, January
26, 1982.
3. Serdoz, Dick. Nevada Department of Conservation and Natural Resources.
Written communication with James Morgester, Chief, Enforcement Division,
California Air Resources Branch, June 13, 1981.
4. Nevada Revised Statutes, Title 40, Chapter 445—Water Control; Air
Pollution, Section 445.601.
5. Nevada Air Quality Regulations, Article 2.8, Administrative Fines.
22
-------
ATTACHMENT I: Nevada Revised Statutes, Title 40,
Chapter 445 - Water Control; Air Pollution, Section 445.601.
23
-------
441:0108
STATE AIR LAWS
5. A person who discloses or knowingly uses confiden-
tial information in violation of this section is guilty of a
misdemeanor, and shall be liable in tort Tor any damages
which may result from such disclosure or use.
44S.S81 Power of department officers to inspect,
search ^reialses; search warrants.
I. It is • condition of the issuance of any operating per-
mit or any registration required by the commission or
pursuant to any local air pollution control ordinance that
the registrant or holder of the operating permit agrees to
permit inspection of the premises to which the permit or
registration relates by any authorized officer of the
department at any time during the registrant's or holder's
hours of operation without prior notice. This condition
shall be stated on each registration or application form
and operating permit.
2. If a source of air contaminant exists or is con-
structed without registration or is operated without an
operating permit, such officer may inspect it at any
reasonable time, and may enter any premises to search
for such a source If entry is refused, or prior lo attemp-
ting to i-nicr, such officer may apply to any magistrate
for a search warrant. The magistrate shall issue the
warrant if lie believes from the supporting affidavit or af-
fidavits thai there is probable cause to believe ihui a
source nl yir contaminant exists or is being constructed
or operated on the premises to be searched
445.5Kb (iownmvnlal sources of air contaminants in
comply with air pollution laws, regulations and or-
dinances; planning, zoning agencies to consider effects on
•ir pollution.
I. All governmental sources of air contaminants shall
comply with all local and state air pollution laws,
regulations and ordinance!).
2 All planning commissions, /oning hoards of adjust-
ment, and governing bodies of unincorporated towns, in-
corporated cities and counties shall in the performance of
their duties imposed by chapter 278 of NRS or other
statutes relating to planning and /oning consider the
effects of possible uir pollution and shall submit to the
department for evaluation such concise statement of the
effects on uir quality by complex source?,.
445.596 Private rights and remedies not affected.
Nothing in NRS 445.401 to 445 591, inclusive, shall be
construed to abridge, limit, impair, create, enlarge or
otherwise affect substantivcly or procedurally the right
of any person to damages or other relief on account of
injury to persons or properly and to mamtuin any
action or other appropriate proceeding therefor in the
courts of this state or the courts of ihc United Slates
on a tort claim against (he United States or a lederal
agency as authon/ed by federal statutes.
44S.59H Provisions for transition in administration.
I All rules, regulations and standards promulgated by
the stale commission or environmental protection per-
taining to air pollution control in force on July I, ls*7.V
shall remain in effect until such time as revised by the
state environmental commission pursuant to NRS
445.401 10 445601, inclusive
2. Any and all action taken by the state commission of
environmental protection, including but not limited to
existing orders, notices of violation, variances, permits,
cease and desist orders and compliance schedules, shall
remain in full force and effect and binding upon the state
environmental commission, the director, the department
and all persons to whom such action may apply on or
after July 1. 1973.
3. In the event that a local air pollution control
program described in NRS 445.546 is transferred in
whole or in part from an existing air pollution control
agency to another agency, all rules and regulations
adopted by the existing agency may be readopted as
amended to reflect the transfer of authorities by the new
agency immediately upon such transfer, and the
provisions of NRS 445.466 shall not apply to such
readoption.
4. If a transfer of local authority as described in sub-
section 3 occurs, all orders, notices of violation,
variances, cease and desist orders, compliance schedules
and other legal action taken by the existing air pollution
control board, control officer, or hearing board shall re-
main in full force and effect, and shall not be invalidated
by reason of such traasfcr.
PENALTIES
445.
-------
ATTACHMENT 2: Nevada Air Quality Regulations,
Article 2.8, Administrative Fines.
25
-------
NEVADA AIR QUALITY RULES
S-58;>
441:0511
r
tions, or other circumstances with less
than two valid samples being obtained,
an additional performance tesi(s) must
be conducted.
2.6.7 All testing and sampling will be
performed in accordance with rccon-
ni/rd methods and as specified by the
DircUor
2 f.8 The tost of all testinc and sam-
pling and the cost of all sampling holes,
scallolding, electric powci, and othci
pertinent allied facilities as may be re
quucd and specified in witting by the
Director shall be provided and paid for
by Ihe owner of the souicc
2.tVV All information and analytical
results of testing and sampling shall be
certified as to their truth and accuracy
and as to their compliance with all pro-
visions of these regulations and copies
of these results shall be provided to both
the owner and the Director.
2 7 C'onfidenttal Information:
27.1 The emission of an air conta
minant which has an ambient air quality
standard or emission standard or has
been designated as a ha/ardous air pol
lutunt by the United States Fnvironmen-
tal Protection Agency cannot be certi-
fied as being confidential
2 7.2 Any information, olhei than
emission data, received bv the Commis-
sion, ihe Director, or local air pollution
* control agency which is certified to be
confidential by the owner or operator
disclosing it, shall, unless the ownet ex
prcssly agrees to its publication or avail
ability to the public, be used only
a In the administration 01 formula
lion ot air pollution controls; or
b. In comjjjling or publishing* analyses
or summaries relating to ihc condition
of ihc aimospheic which do not ulentih
anv owner ot operaloi 01 H v -,il anv
o, 7.3,
{) I, or 10 shall be classified as minor or
le .soi violation,, unless there are tour or
moie violations of any one of these ar-
ticles bv a pcison, occuiring in twelve
consecutive mouths.
1 K 4 Minoi violation line sclk-dulc:
\ili.lc \ II|VM Hun. MII
AMI, ll (. IlKIIK II.MMIIIp
i Mii.ii I.. .11 K..S IN. MI ii t-t r<
I-..M..I 1 IH-I ll
I.IC.M. i ill 111 II I >• !"• |...un,K>
IHI IM..II
\nul. ' \ 1 ui'itiM HUM
1, Oif.inu SnlM'MK
.Hill (Mil, 1 \ol.lhl. ( ..iilpnuml.
\.|, 1, Ml 11,1.,.
1 ifM Scioml
(HI. MM- Ollrn ,
«,.-' \ <»
«,?< \ <"
\ (i Slim
vn llfti
f^n timi
V" Mi»
Ihild
Ollcnsc
fllXI
SUM)
Kan
ilf»
s:no
•.:(»
All minoi violations shall become ma-
jor violalions upon the oiiunciue of the
lonilli violation in any twelve c»nsecu-
li\e months.
2.K.5 Procedure tor paying minor
'violation in lieu of appealing bet ore the
c omiuission.
2.U.S.I I he amount ol the specified
line, in an. 01 dance vMth the minor fine
sihcdiilc. shall be submitted wuhin ten
days aflei issuance ol ill'- notice
2 K.S.2 Cashiers checks, c.'itified
cheiks, nioiiev orders, or personal
chnl.', shall IK made payable to the
Stall ol No ad;i and shall be sent to the
I nuionmenial Commission, 201 S. l-'nll
Slii-il. I apiiol ( oiuples, Caisou City,
M. \ nil, S')"1!!!. \\ho shall loiu ml I'oi
ilrpiisii into the appiopTiale Bounty
s<. linol lund
2 K f) l-.nh dav that a violation con-
iinuis shall ,1'MsiiiiiU- a '.eparate \iola-
inin
2 S 7 Ml ailmiiiisiiaiive lines col-
Ink I h\ ihc < omnnssion piir.nailt to
ihcse ii (iiilalions shall inuie to and be
deposited in ihe county school district
hind of the loimly m which tin- viola-
lion occurred
2 l> I mie loi Compliance:
2 s) I All new and existing sources
shall comply with these regulations. Ex-
isting souiees arc in compliance with
these regulations and may continue to
operate under the provisions of their ap-
proved compliance schedules, which
may be amended from time to time.
2.9.2 Compliance schedules shall con
tain specific progress steps that will be
taken toward achieving compliance
2.9.3 The Commission may icqune
periodic reports on each phase of pro
gress under approved compliance sche-
dules. Failure at any phase to make dili-
gent and reasonable progress toward
compliance with the approved com pi i
ance schedule shall be deemed an unrea
sonable delay and shall subject the op
crator of the source to admitmiiamc
fines as provided in Article 2.8.2 of
these regulations.
2.9.4 In approving compliance sche-
dules, the Commission shall take into
consideration the social and economic
impact of the schedule, including, but
not limited to, impact on availability ot
fuels, energy, transportation, and em
ployment.
2.9.5 When in the opinion of the Di-
rector there is a violation of any provi-
sion of these regulations or approved
compliance schedule, he shall cause a
written notice to be served upon the per
son responsible for the alleged violation.
2'.9.6 The written notice shall specify
the provision of these regulations or tin-
approved compliance schedule that is
1 being violated and the facts constituting
ihc alleged violation. It may include an
order to take corrective action or require
submission of a schedule for compliance
within a specified reasonable time. Such
order shall become final unless within 10
calendar days after service of the written
notice, the person named in the order
requests a hearing before the Commis-
sion.
2.9.7 With or without the issuance ol
an order to take corrective action 01 le
quire submission of a schedule foi com
pliance within a specified reasonable
time, Ihe Director may require Ihe per
son to appear before the Commission at
a specified time or place or the C om
mission may initiate action to lcv\ ilk-
appropriate fine.
2.10 Appeals of the Director's Action:
2.10.1 Any person aggrieved by:
2.10.1.1 The issuance, denial, re
newal, suspension, or revocation of an
operating permit; or
2.10.1.2 The issuance, modification,
or rescission of any other order, by the
c
12
81
(I I,, 'ME HURfAU Ol NATlf»»">-' ATfAlRS INC WASHINGTON DC 20037
26
81
-------
NEW JERSEY
New Jersey began assessing civil penalties for open burning and smoke
violations in 1956. Since that time, the program has been expanded to cover
additional types of violations including continuing compliance violations.
New Jersey has also promulgated regulations containing a penalty schedule to
assist officials in determining the most appropriate fine for various types of
violations. The program is administered by New Jersey's Department of
Environmental Protection.
Penalty Procedures/Review Process
The New Jersey DEP processes approximately 1600 violations per year.
The following excerpt from the Environmental Law Institute's case study of the
New Jersey enforcement process* (which was updated by New Jersey
officials^) indicates how violations are handled and explains how penalties
fit into this process:
Each year DEP throws out about 200 reported violations which are, upon
further reflection, not violations after all. For the remaining 1400
violation reports, the agency has four options:
1. Evoke prosecutorial discretion to allow the source time to solve the
problem;
2. Issue an administrative order;
3. Issue a notice of prosecution and offer of penalty settlement;
4. Refer the matter to the Attorney General's Office.
Like many other enforcement agencies, the Bureau of Enforcement exercise
"prosecutorial discretion" when confronted with a violation. It has developed
informal procedures that strictly limit the use of this discretion to cases
that meet a series of criteria. The Chief, Bureau of Enforcement may review
the violation report and determine that a formal enforcement response (e.g.,
administrative order, notice of prosecution, referral to Attorney General) is
not warranted. His discretionary decision is based on the following factors:
1. Quality of the emissions;
2. Presence of extenuating circumstances;
3. Likelihood of quick correction or orderly shutdown;
4. Receipt of complaints or lack thereof; and
5. Quality of the working relationship with the source.
27
-------
After reviewing the criteria, he may decide to delay taking formal action
and allow the source to correct the violation. Such prosecutorial discretion
is exercised for short-term, minor malfunction episodes, which are technically
violations but are more effectively handled informally.
In approximately 800 cases each year the Bureau issues an administrative
order (order) as its initial action towards enforcement. Basically, the order
is a pre-printed form issued directly by the Bureau which orders the source to
rectify the violation by a certain date (usually one to three weeks) or suffer
the consequences of being shut down.
In approximately 250 cases each year the Bureau issues a notice of
prosecution (NOP) with an offer of a penalty settlement. The NOP is a vehicle
used by the Bureau to impose a penalty on a non-complying source. Again, it
is issued directly by the Bureau. In order to stress the penalty nature of
the NOP, the NOP shall be referred to as a penalty in the remainder of this
report.
The guidelines which the Bureau uses in deciding whether to issue an
order or a penalty are contained in Subchapter 1 (N.J.A.C. 7:27A) of the New
Jersey regulations. The penalties prescribed are not large, except in the
case of violations of concentration or mass emission rates. Presumably, such
violations would only be found through stack testing which is rarely done, or
in cases where the O&M problems were so severe that the source was, in effect,
operating uncontrolled. The promulgated guidelines are advisory only, but are
followed in almost all cases. However, there have been cases in which the
Bureau sought much larger penalties, because of threats to health or other
considerations.
The Bureau designed the penalty assessment guidelines to discourage
repeated violations of the air pollution regulations. First, the amount of
the penalty and the threat of a referral to the Attorney General increases
with each successive violation. Second, the possibility of a rebate of a
portion of the penalty decreases with each successive violation, since the
required waiting period increases and the percentage of the amount of penalty
which may be rebated decreases.
The Bureau does on occasion rescind administrative orders and penalty
assessments. The recision occurs in situations in which the violations are
minor or extenuating circumstances are present. In 1981, the Bureau issued
354 NOPs and rescinded 27.
The Bureau may, in its discretion, refer a case directly to the Attorney
General's Office as its initial action; however, such an initial referral
occurs no more than five times per year. An initial action referral to the
Attorney General occurs only where an extreme threat to public health is
present and/or the violation is flagrant and frequent.
An informal conference is held about 50 times a year in situations where
the source is not in violation, but is not operating its control system
optimally. The source and the Bureau cooperatively undertake to improve the
28
-------
control system in the conference. However, since the source is technically
"in compliance," the Bureau has to rely on the source's goodwill to work out a
solution. Reportedly, sources are usually cooperative in these situations.
The following paragraphs spell out in greater detail how the enforcement
process works as described by Bureau staff.
Administrative Order—
Once an administrative order (order) is issued by the Bureau, notice is
sent to the source by certified mail. Within 15 days of the date of issuance
of the order, the source may request an administrative hearing. The source
may request a stay pending the administrative hearing. Ten percent of the
requests by sources for an administrative hearing are denied due to technical
deficiencies (e.g., the source requests an administrative hearing more than 15
days after the AO is issued). Only about five of the 800 orders issued each
year result in an administrative hearing request.
Approximately 60 percent of the sources which request an administrative
hearing also request that the Bureau enter in negotiations for a stipulation
and consent order. Ninety-five percent of the sources undergoing negotiations
do enter into a stipulation and consent order. The other five percent of the
cases undergoing negotiations are not settled and result in an administrative
hearing. Of those sources which do enter into a stipulation and consent
order, 99 percent reportedly comply with the order. Of the sources which do
not comply with the stipulation and consent order, an NOP is issued and a
penalty is assessed against them in 10 percent of the cases and the case is
referred to the Attorney General in the remainder.
In those instances when no administrative hearing is requested after the
issuance of an order, eight to ninety percent of the sources comply with no
further action being required by the Bureau. In the rest of the cases, the
Bureau must assess a penalty and may, on a rare occasion, refer the matter to
the Attorney General.
Penalties—
Although the penalties provision in the statute calls for imposition
through court action, it also allows the Bureau to settle penalty claims. The
Bureau used this authority to develop what is in effect an administrative
civil penalty program, and a relatively active one. The Bureau levies through
the settlement mechanism about 250 civil penalties per year. The
administrative vehicle for levying penalties is a Notice of Prosecution and
Offer of Penalty Settlement. The Bureau and the source may enter into
negotiations about the amount of the penalty and try to work out a
compromise. Such negotiations take place in about 5 percent of the cases. In
about 10 percent of the cases, the source does not accept the offer of the
penalty settlement, and the matter is referred to the Attorney General.
Those sources which do pay the penalty may request a penalty rebate at
the end of the waiting period, as discussed above. However, only about 15
29
-------
percent of the sources request a penalty rebate, which request the Bureau
grants 90 percent of the time. The Bureau denies the rebate request about 10
percent of the time for such reasons as the waiting period not having expired
or the source being out of compliance during the waiting period. Although the
source may request an administrative hearing after a rebate request is denied,
such a request is rarely made.
The remainder of the sources do not request a penalty rebate because they
either forgot, do not wish to undergo the administrative inconvenience, or
they have incurred a subsequent violation which would make such a request a
fruitless endeavor.
Of coure, if the source repeats a violation after the NOP with a penalty
assessment is issued, the subsequent enforcement action taken by the Bureau
will be as shown in the guidelines (e.g., another NOP may be issued followed,
if necessary, by a referral to the Attorney General).
Program Effectiveness
New Jersey officials feel that the evidence from enforcement statistics
seems to indicate that the penalty program is effective; most violations are
resolved with an administrative order; fewer than 20 percent require the state
to issue an NOP. Nevertheless, they feel that a penalty program is
necessary. As one official stated:-* "the conference, conciliation,
persuasion approach was the order of the day in New Jersey twenty years ago.
Then the laws became more sophisticated and the costs of control went up. Now
people are no longer in such a conciliatory posture and the agency really
needs penalties for enforcement."
References
1. Vickery, J. S., L. Cohen, and J. Cummings. Profile of Nine State and
Local Air Pollution Agencies. U.S. Environmental Protection Agency,
Office of Planning and Evaluation, Washington, D.C., February, 1981.
2. Environmental Law Institute, The Response to State and Local Regulation
on Emissions to the Atmosphere, Final Task I Report (Revised). Prepared
for Council on Environmental Quality, Washington, D.C., April 1979.
3. Pluta, Thomas A. New Jersey Department of Environmental Protection.
Telephone conversation with Lisa Baci, GCA/Technology Division, January
19, 1982.
4. Pluta, Thomas A. New Jersey Department of Environmental Protection.
Written communication with Lisa Baci, GCA/Technology Division, February
17, 1982.
5. New Jersey Air Pollution Control Laws. New Jersey Statutes Annotated,
Title 26:2c-19.
6. New Jersey Administrative Code, 7:27A-15, Penalties and Rebates.
30
-------
ATTACHMENT 1: Tables Summarizing
New Jersey Enforcement Actions.
31
-------
NEW JERSEY SUMMARY OF INITIAL ACTIONS TAKEN AND FINAL ACTIONS
NECESSARY TO CORRECT TYPES OF VIOLATIONS
TYPE OF
VIOLATION
DETERMINED
Input
Standard
Opacity
Emissions
Standard
PTC /CTO
APPLICATION3
P^C/CTO 1
Condition4
Reporting
Requirement"
"Pre-Printed"
Admin. Orders *
Administrative
of Court Orders'
SC5 (odor)
6pen burning
TYPE OF INITIAL AND FINAL ENFORCEMENT ACTION TAKEN
INFORMAL ACTION
initial*
1
10%
l
80%
1
1
11 • 8"
100%
I
Final!
10%
80%
8
90%
ISSUANCE OK NOTJ.CR
OF PROSECUTION
Initial
Final
5%
14%
19%
19%
90%
10%
ISSUANCE OF
ADMINISTRATIVI:
ORDER
Initial 1
1 Final
100%
90%
100%
100%
100%
20%
100%
95%
75%
90%
80%
80%
18%
8%
90%
REFERRAL TO
A/G
Initial
~
100%
Final
Rare
Rare
10%
1%
1%
2%
10%
100%
2%
Rare
SOURCEi "The Response to State and Local Reg ilatj-ms on Emiaoiona to the
Atmospher e," ELI, 1979.
NOTESt
1. An "initial enforcement action" ie what a ttor the Bureau takes first
after detecting a violation? however, suc^ an action is not always
sufficient to compel compliance.
2. A "final enforcement action" is what action tl.e Bureau usually has
to take to Actually compel compliance. Note that in may cases the
"intial action" is also the "final action," since it compels compliance
with no further action being necessary.
3. A violation of the requirement to obtain •* PTC or CTO when constructing
or operating a new or altered source, pueuanct to Subchapter 8.
4. A violation of a condition embodied in thu PTC and CTO; e.g., operating
the process with the control equipment turned off.
5. A violation of a requirement imposed on a source by the Bureau to submit
a report of its progress in construction, emissions or other such items.
6. A violation of an order issued on a pre-printed form after an initial
violation is detected.
7. A violation of a consent court or departmental order.
8. Really a formal conference - unique to SCS violation processing.
32
-------
NEW JERSEY ENFORCEMENT ACTIONS
(1976-1978)
Enforcement Action
By the DEP*
Administrative Order
Court Order
Notice of Prosecution
Administrative Hearing
Referral to Attorney General
Court Action
*-*.
1976
679
31
258
2
5
5
Calendar Yeaz
1977
791
15
271
3
39
4
1978
901
26
258
2
33
28
SOURCEi "The Response to State and Local Regulations on
Emissions to the Atmosphere," ELI, 1979.
* The Regional Air Pollution Control Agencies also take enforcement
actions. In 1977 the Central Jersey RAPCA issued 385 notices of
violation, held 46 conferences, and took 135 cases to court,
which resulted in $15,500 in fines. The RAPCAs also refer certain
types of cases to the Bureau for prosecution.
33
-------
NEW JERSEY SUMMARY OF ACTIONS TAKEN BY THE ATTORNEY GENERAL
AND THE PERCENT OF CASES RESOLVED BY THOSE ACTIONS
1
PERCENT OF TOTAL CASES RESOLVED I
ACTION TAKEN BY
ATTORNEY GENERAL
Penalty Cases
Order Cases
Warning Letter
Conference/
Administrative
Hearing
Complaint Issued;
Discovery Proceedings
Trial Conducted
90%
Rare
5%
5%
20%
60
15%
5%
SOURCEt "The Response to State and Local Regulations on Emissions
to the Atmosphere," ELI, 1979.
-------
ATTACHMENT 2: New Jersey Air Pollution
Control Laws, New Jersey Statutes Annotated,
Title 26:2C-19.
35
-------
481:0104
STATE AIR LAWS
cause a prompt investigation lo be made in connection
therewith.
if upon inspection (he department discovers a condi
lion which IK in violation of the provisions of this act or
tiny code, rule or regulation promulgated pursuant
thereto, it shall be auihon/ed to order such violation to
cease und to lake such steps necessary to enforce such an
order. The said order shall state the items which are in
violation and shall provide a reasonable specified time
within which the violation must cease.
In any case where no code, rule or regulation has been
promulgated which sets specific limits for emissions to
the atmosphere of the type discovered and alleged, no
order to cease such emissions shall be issued until the
holding of a preliminary hearing thereon which shall be
held upon not less than 15 days' notice by the department
to all interested persons.
The person responsible shall make the corrections
necessary to comply with the requirements of this act or
code, rule or regulation promulgated pursuant thereto
within the time specified in the order.
Nothing therein shall he deemed to prevent the depart-
ment from prosecuting any violation of this act or any
code, rule or regulation promulgated pursuant thereto
notwithstanding that such violation is corrected in ac-
cordance with this order.
26:2<-M.I
Anv person aggrieved by an order ol the department
under this act may. upon application made withm 15
days after notice thereof, he entitled to a hearing before
ihc department which shall within 30 days thereafter hold
a hearing of which at least 15 days written notice shall be
(liven to such persons. Within W days after such hearing
the department shall issue an appropriate order modify-
ing, approving or disapproving its order A cop> of such
order shall be served upon all interested parties Pending
the determinant! b> the department and upon applica-
tion therefor Ihc department may stay the operation ol
such order upon such terms and conditions as it may
deem proper.
iScction 15 repealed by I' I.. 1962. c.215, Section 7)
2*:2C-I6
The testimony taken at any hearing shall be under oath
and recorded stenogruphically, but the parties shall not
be bound hy the strict rules of evidence prevailing in the
courts D| law and equity I rue copies of any tr.inscripl
and ol any other record made ol or at such hearing shall
be furnished to any party thereto upon request and at his
expense
2*:2C-I7
Any hearing required by this act to be held before the
department shall be held before the State Commissioner
of Health, or a member of (he department designated by
him, who shall have power to subpoena witnesses and
compel their attendance, administer oaths and require
the production for examination of any books or papers
relating to any matter under investigation in .my such
hearing The department . at the request of any respon-
Environm
dent lo a complaint made by it, or to it, pursuant to this
act, shall subpoena and compel the attendance of such
witnesses as the respondent may designate and require
the production for examination of any books or papers
relating to any matter under investigation in any such
hearing.
(Section 18 repealed by P. L. 1962, c.215. Section 10.)
26:2019
If any person violates any of the provisions of this act
or any code, rule or regulation or order promulgated or
issued pursuant to the provisions of this act, the depart-
ment may institute a civil action in the Superior Court
for injunctive relief to prohibit and prevent such violation
or violations and the said court may proceed in the action
in a summary manner.
Any person who violates the provisions of this act or
any code, rule, regulation or order promulgated or issued
pursuant to this act shall be liable to a penalty of not
more than $2,500.00 to be collected in a civil action by a
summary proceeding under the penalty enforcement law
(N.J S. 2A 58-1 et seq.) or in any case before a court of
competent jurisdiction wherein injunction relief has been
requested. If the violation is of a continuing nature, each
day during which it continues after the date given by
which the violation must be eliminated in accordance
with the order of the department shall constitute an ad-
ditional, separate and distinct offense.
The department is hereby authorized and empowered
to compromise and settle any claim for a penalty under
this section in such amount in the discretion of the
department as may appear appropriate and equitable un-
der I'll of the circumstances, including a rebate of any
such penalty paid to the extent of 90 percent thereof
where such person satisfies the department within 1 year
or such oilier period as the department may deem
reasonable that such violation has been eliminated or
removed or that such order or injunction has been met or
satisfied, as the case may be, by the installation of air
pollution control apparatus.
26:2(-20
Review ol any final decision or action by the depart-
ment shall be by procedure in lieu of prerogative writs.
Review of the validity of any code, rule or regulation
promulgated by the department shall likewise be by
procedure in lieu of prerogative writs.
26.2(-21
No existing civil or criminal remedy for any wrongful
action which is a violation of any code, rule or regulation
of the commission shall be excluded or impaired by this
act.
26:2(-22
No ordinances of any governing body of a municipality
or county or hoard of health more stringent than this act
or unv code, rules or regulations promulgated pursuant
thereto shall be superseded by this act. Nothing in this
act or in any code, rules or regulations promulgated pur-
suant thereto shall preclude the right of any governing
•porter
102
36
-------
ATTACHMENT 3: New Jersey Administrative Code,
7:27A-1.5 Penalties and Rebates.
37
-------
NEW JERSEY ADMINISTRATIVE CODE 7:27A-1.5
7:27A—1.5 Penalties and rebates
(a) When good and sufficient cause exists, the Commissioner, Division
Director or Bureau Chief may exercise his discretion in deviating from the
following guide, including referral of violation to the Office of the Attorney
General for prosecution.
(b) Compromises and settlements of any claims for penalties and rebates
thereof pursuant to N.J.S.A. 26:2C-19 shall be made for the New Jersey
Administrative Code, Chapter 27 (formerly the chapters of the New Jersey Air
Pollution Control Code) in accordance with the following guide:
1. N.J.A.C. 7:27-2.1 et seq. (formerly Chapter 2):
OPEN BURNING
Violation
Penalty
Rebate
Waiting
Period1
1st
Order
NA'
NA
2nd
$100
90%'
.6 Mos
3rd
$200
50%J
1 Yr
4th
$500
None
NA
over <
A.G
NA
NA
1 ."Waiting Period" is defined as the period during which no violation of the Act or Code,
for which the order was issued occurs, in order to entitle the person to a rebate.
2.As used throughout this guide, "NA" means not applicable.
3.None unless penalty is against property owner and burning conducted by lessee,
contractor or parties unknown.
4.As used throughout this guide, "AG" means referred to the Attorney General for the
purposes of seeking injunctive relief and/or penalties.
2. N.J.A.C. 7:27-3.1 el seq. (formerly Chapter 4):
SMOKE SHADE OR APPEARANCE
Violation 1st 2nd 3rd 4th 5th over 5
$400 $800 AG.
50% None NA
Penalty*
Rebate
Waiting
Period
Order
NA
NA
$100
90%
6 Mos.
$200
75%
1 Yr.
1 Yr. NA NA
•Double if smoke shade or appearance over Rmgelmann No. 3 or 60% opacity
80.7
(17198) SuPP 8-15-73
38
-------
7:27A-1.5 AIR POLLUTION RULES
3. N.J.A.C. 7:27-5.1 etseq. (formerly Chapter 6) and N.J.A.C. 7:27-4.1
cl seq.. 6.1 et seq. and 7.1 el seq. (formerly Chapters 5. 7 and 8):
CONCENTRATION AND/OR MASS EMISSION RATE
Violation 1st 2nd over 2
Penalty
Rebate
Waiting
Period
Order or A.G.
NA
NA
$2500/day
None
NA
A.G.
NA
NA
4. N.J.A.C. 7:27-6.1 el seq. (formerly Chapter 7):
OPACITY
Violation
Penalty
Rebate
Waiting
Period
lit
Order or A.G. •
NA
NA
2nd
$400
90%
1 yr.
3rd
$800
50%
1 yr.
4th
A.G.
NA
NA
5. N.J.A.C. 7:27-3.1 etseq.. 4,1 el seq.. 6.1 elseq., 7.1 etseq.. 9.1 elseq.
and 11.1 et seq. (formerly Chapters 4, 5, 7, 8, 10 and II):
STACK AND EMISSION TESTS
Violation 1st 2nd over 2
Penalty Order $200 A.G.
Rebate NA 50% NA
Waiting
penod NA 1 Yr. NA
80.8
H7W) Supp K-15-73
39
-------
NEW JERSEY ADMINISTRATIVE CODE 7:27A-l.5
6. N.J.A.C. 7:27-8.1 et set), (formerly Chapter 9):
INSTALLED AND/OR OPERATING WITHOUT VALID HERMIT
AND/OR CERTIFICATE
Violation
Penalty
Rebate
Waiting
Period
1st
Order
NA
NA
2nd
$200
75%
6 mos.
3rd
$400
50%
1 yr.
4th
$800
50%
1 yr.
over 4
A.G.
NA
NA
7. N.J.A.C. 7:27-9.1 et scq. and 10.1 ei seq. (formerly Chapters 10 and
10A):
NOT PERFORMING IN ACCORDANCE WITH CONDITIONS
REQUIRED BY PERMIT AND/OR CERTIFICATE:
Violation 1st 2nd over 2
Penalty Otter and $400 A.G.
$200
Rebate 50% 50% NA
Waiting
Period NA 1 Yr. NA
SULFUR CONTENT OR SULFUR DIOXIDE EMISSION
Violation 1st 2ml 3rd 4th over 4
Penalty* Order $100 $250 $500 A.G.
Rebate NA 90% 75% 50% NA
Waiting
Period NA 6 Mos. I Yr. 1 Yr. NA
• To be double for all fuel burning operations having a rated heat input of 1,000,000
British Thermal Units per hour or greater
80.9
(17200) Sur>P
40
-------
7:27A-1.5 AIR POLLUTION RULES
X. N.J.A.C. 7:27-11.1 et ami. (formerly Chapter 11):
SMOKE. ODOR AND VISIBLF. I'ARTICLES
Violation
Penalty*
Rebate
Waiting
Period
1st
Order
NA
NA
2nd
$100
90%
6Mos.
3rd
$200
75%
1 Vr.
4th
$400
50%
1 Yr.
5th
$800
None
NA
over !
A.G.
NA
NA
* To be double if (1) Violation involves special incinerator, or
(2) More than one section of the Chapter in
violation, or
(3) Smoke density over Ringelmann No. 3 or 60% opacity.
PARTICULATE CONCENTRATION
Violation lit • 2nd over 2
Penalty* Order $500 A.G.
Rebate NA 50% NA
Waiting
Period NA 1 Yr. NA
•Same as (1) and (2) above
9. N.J.A.C. 7:27T12.1 et seq. (formerly Chapter 12):
EMERGENCIES
FAILURE TO SUBMIT STANDBY PLANS ON REQUEST
Violation
Penalty
Rebate
Waiting
Period
1st
Order
NA
NA
2nd
$500
90%
30 days after
3rd
Order Containing
Standby Plans
NA
NA
approval
STANDBY PLANS SUBMITTED BUT DISAPPROVED BY THE DEPARTMENT
Violation 1st 2nd
Penalty Order None - Department prepares
Standby Plans
Rebate NA
Waiting
Period NA
80.10
(17201) Supp 8-15-73
41
-------
NEW JERSEY ADMINISTRATIVE CODE 7:27A-l.6
FAILURE TO COMPLY WITH AND/OR INTERFERENCE WITH
ENFORCEMENT OF GOVERNOR'S ORDERS
Violation A.G.
Penalty to be determined by court
Rebate NA
(c) Notification of compromises and offers of penalty settlements shall be
made by the Department in writing via a "Notice of Prosecution" which shall
be served upon the respondent by personal service or by certified mail, return
receipt requested. Said notice of prosecution shall state clearly the statute, rule,
regulation or code violated, the date and premises on which the violation took
place, the time within which the settlement must be made and the
Department's intent to prosecute in the event the offer is not accepted by the
designated date.
(d) Requests for rebates of penalty settlements must be made in writing
to the Department. Such requests shall identify clearly the amount of the
settlement, the date on which it was made and justification for the rebate. The
Bureau shall respond to all requests for rebates in writing, stating its decision
and the reasons therefor.
7:27A—I.6 Stipulations and consent orders
(a) The Department may, upon request of a person aggrieved by an order,
decision or action of the Department, agree to the negotiation of a stipulation
and order derived by mutual consent in lieu of adversary proceedings, provided
such request is made to the Department in writing or in an official record
before an administrative hearing or preliminary hearing is terminated by the
hearing officer.
(b) Negotiation of a stipulation or consent order may be conducted
through an informal conference at a time and place specified by the
Department or at an administrative hearing.
(c) Upon request for and during negotiation, the Commissioner, Division
Director or Bureau Chief may stay an enforcement action or postpone a
hearing pending a satisfactory conclusion to such negotiation.
(d) The Commissioner, Division Director or Bureau Chief may terminate
the process of negotiation at any time, in which event the Department will lift
any stays or postponements in force and proceed with the enforcement process.
80.11
(17202) Supp. 8-15-73
42
-------
OREGON
Oregon first instituted a civil penalty program for air pollution
violations in January 1974. At that time, there was a $25 minimum and $500
maximum fine for violators. These limits were increased to $50 and $10,000,
respectively, in 1980. Oregon's civil penalty program must deal with two
distinct sources of air pollution: fixed sources and field burning. Since
the nature of these problems differ, the Department of Environmental Quality
employs different tactics for each type of violation.
Penalty Procedures
Fixed Sources—
Typically, inspectors detect violations by fixed sources through
drive-bys, complaints, and formal inspections. Oregon always attempts to
reconcile violations by fixed sources informally. Initially, the department
sends a letter to the source explaining the nature of the violation and
requesting compliance to avoid a civil penalty. For these sources, the
department must send a warning notice at least 5 days before taking any
punitive action. Penalties are rarely assessed due to the department's
reliance on informal cooperation and a good rapport with industries.
Field Burning—
Field burning poses a unique threat to air quality in Oregon. Commercial
grass seed growers burn their fields between seasons to prevent contamination
of their products. Field burning has become a very controversial issue over
the years and receives more rigid enforcement. During the field burning
season, inspectors use aerial surveillance (fly-bys) and radio contact with
inapectora on the road to detect violators. Fines for violations are
immediate and set according to the following schedule:
Late Burning $1000
Burning without permit $1500
Burning unregistered field $1500
Not monitoring radio reports (up to the minute infor-
mation on times field burning is permitted) $ 300
If the violation is a second offense within a 5-year period, the fine is
automatically doubled, with the $10,000 maximum still in order. It is
important to note that the 5-day warning notice does not apply for field
burning violations.
Review Process
When a civil penalty is assessed, the violator has 20 days to either pay
the fine or supply a written response. If the violator fails to do either,
the director can issue a default order of judgment and take a lien on the
property. When violators contest their penalties in a hearing, the director
can withdraw or mitigate the penalty if the situation warrants.
43
-------
The final order of the hearing officer can be appealed within 30 days and
must be heard within another 30 days by the Department of Environmental
Quality Commission. Finally, violators can appeal to the courts within 60
days.
Program Effectiveness
Civil penalties have worked quite well as an enforcement mechanism in the
short run. The Department of Environmental Quality is currently attempting to
improve their communication with field burners so that they may be able to
rely more on voluntary controls. The department tries to set fines that are
large enough to get the violators' attention, but not so large as to hurt
their business. Civil penalties, tailored to the violation, provide a
flexible, less costly, and equitable process that is capable of handling a
larger case load than judicial sanctions. According to Oregon officials,
civil penalties provide a better method of maintaining control of air
pollution violations than available alternatives.
References
1. Vickery, J. S., L. Cohen, and J. Cummings. Profile of Nine State and
Local Air Pollution Agencies, U.S. Environmental Protection Agency,
Office of Planning and Evaluation, Washington, D.C., February, 1981.
2. Kollias, Van A. Oregon Department of Environmental Quality. Telephone
Conversation with Andrew Bagley, GCA/Technology Division, January 13,
1982.
3. Kollias, Van A. Oregon Department of Environmental Quality. Written
Communication with Andrew Bagley, GCA/Technology Division, August 27,
1981.
4. Oregon Air Pollution Control Laws, Oregon Revised Statutes, Sections
468.125 - 468.140.
5. Administrative Procedures and Rules of State Agencies, Oregon Revised
Statutes, Chapter 183.
6. Oregon Administrative Rules, Chapter 340, Division 12, Sections
340-12-050, and 070, 075; Division 26, Section 340-26-025; Division 11.
44
-------
ATTATCHMENT 1: Oregon Enforcement Procedures
45
-------
OREGON ENFORCEMENT PROCEDURES
(VIOLATIONS DETECTED BY
REGIONAL INSPECTOR
O SCHEDULED
O SURVEILLANCE COMPLAINTS
I
I • 1 I
I VERBAL WARNING AND | *4COMPLIANCE |
I FOLLOW-UP SURVEILLANCE I | j
i
NON-COMPLIANCE
I
I NOTICE OF VIOLATION!
I ISSUED r
I I
I
NON-COMPLIANCE
5-DAY WARNING LETTER
ISSUED BY REGIONAL
OPERATIONS
SOURCE RESPONSE
I
NON-COMPLIANCE
NO SOURCE RESPONSE
I COMPLIANCE SCHEDULE
I NEGOTIATED WITH SOURCE
IPOLLOW-UP INSPECTIONS
95 in 1977 I ASSESSMENT OF CIVIL I
I PENALTIES BY DIRECTOR!
I OF DEQ |
I
I POTENTIAL REVOCATION OF I
1 PERMIT OR CIVIL SUITS I
I I
Sourcei
I COMPLIANCE I
I I
Excess Emission Program Final Task C Report for Oregon
Department of Environmental Quality, TRC, 1979, Reported
in Profile of Nine State and Local Air Pollution Agencies,
1981.
46
-------
ATTACHMENT 2: Oregon Air Pollution
Control Laws, Oregon Revised Statutes,
Sections 468.125 - 468.140
47
-------
468.125
PUBLIC HEALTH AND SAFKTY
for the commiaaion may.
(a) Conduct public hearings.
(b) Ia«ue subpenas for the attendance of
witnesses and the production of books, record*
and document* relating to matters before the
commiMion.
(c) Administer oaths.
(d) Take or cause to be taken depositions
and receive such pertinent and relevant proof
as may be considered necessary or proper to
carry out duties of the commission and depart-
ment pursuant to ORS 448.305, 454.010 to
454.040, 454.205 to 454.255, 454.405, 454.425,
454.505 to 454.535, 454.605 to 454.745 and
this chapter.
(2) Subpenaa authorized by this section
may be served by any person authorized by
the person issuing the subpena. Witnesses
who are subpenacd shall receive the same fees
r.nd mileage as in civil actions hi the circuit
court. [Formerly 449.048]
468.126 Notice of violation. (1) No civil
penalty prescribed under ORS 468.140 shall
be imposed until the person incurring the
penalty has received five days' advance notice
in writing from the department or the region-
al air quality control authority, specifying the
violation and stating that a penalty will be
imposed if a violation continues or occurs
after the five-day period, or unless the person
incurring the penalty shall otherwise have
received actual notice of the violation not less
than five days prior to the violation for which
a penalty is imposed.
(2) No advance notice shall be required,
however, where the violation is intentional or
consists of disposing of solid waste or sewage
at an unauthorized disposal site, constructing
a sewage disposal system without the depart-
ment's permit or where the water pollution,
air pollution or air contamination source
would normally not be in existence for five
days, including but not limited to open burn-
ing or where the water pollution, air pollution
or air contamination source might leave or be
removed from the jurisdiction of the depart-
ment or regional air quality control authority,
including but not limited to ships. (Formerly
+49.967, 1977 c.317 12]
468.130 Schedule of civil penalties;
factors to be considered in imposing civil
penalties. (1) The commission shall adopt by
rule a schedule or schedules establishing the
amount of civil penalty that may be imposed
for a particular violation. Except as provided
in subsection (3) of ORS 468.140, no civil
penalty shall exceed $500 per day. Where the
classification involves air pollution, the com-
mission shall consult with the regional air
quality control authorities before adopting
any classification or schedule.
(2) In imposing a penalty pursuant to the
schedule or schedules authorized by this sec-
tion, the commission and regional air quality
control authorities shall consider the follow-
ing factors:
(a) The past history of the person incur-
ring a penalty in taking all feasible steps or
procedures necessary or appropriate to correct
any violation.
(b) Any prior violations of statutes, rules,
orders and permits pertaining to water or air
pollution or air contamination or solid waste
disposal.
(c) The economic and financial conditions
of the person incurring a penalty.
(3) The penalty imposed under this section
may be remitted or mitigated upon such terms
and conditions as the commission or regional
authority considers proper and consistent with
the public health and safety.
(4) The commission may by rule delegate
to the department, upon such conditions as
deemed necessary, all or part of the authority
of the commission provided in subsection (3) of
this section to remit or mitigate civil penal-
ties. (Formerly 449.970; 1977 c.317 43]
468.135 Procedures to collect civil
penalties. (1) Subject to the advance notice
provisions of ORS 468.125, any civil penalty
imposed under ORS 468.140 shall become due
and payable when the person incurring the
penalty receives a notice in writing from the
director of the department, or from the direc-
tor of a regional air quality control authority,
if the violation occurs within its territory. The
notice referred to in this section shall be sent
by registered or certified mail and shall
include:
(a) A reference to the particular sections
of the statute, rule, standard, order or permit
involved;
(b) A short and plain statement of the
matters asserted or charged;
(c) A statement of the amount of the pen-
alty or penalties imposed; and
(d) A statement of the party's right to
request a hearing.
740
-------
POLLUTION CONTROL
468.150
C
(2) The person to whom the notice is ad-
dressed shall have 20 days from the date of
mailing of the notice in which to make written
application for a hearing before the commis-
sion or before the board of directors of a re-
gional air quality control authority.
(3) All hearings shall be conducted pur-
suant to the applicable provisions of ORS
183.310 to 183.500.
(4) Unless the amount of the penalty is
paid within 10 days after the order becomes
final, the order shall constitute a judgment
and may be filed in accordance with the provi-
sions of ORS 18.320 to 18.370. Execution may
be issued upon the order in the same manner
as execution upon a judgment of a court of
record.
(5) All penalties recovered under ORS
468.140 shall be paid into the State Treasury
and credited to the General Fund, or in the
event the penalty is recovered by a regional
air quality control authority, it shall be paid
into the county treasury of the county in
which the violation occurred. [Formerly 449.973]
468.140 Civil penalties for specified
violations, (1) In addition to any other penal-
ty provided by law, any person who violates
any of the following shall incur a civil penalty
for each day of violation in the amount pre-
scribed by the schedule adopted under ORS
468.130:
(a) The terms or conditions of any permit
required or authorized by law and issued by
the department or a regional air quality con-
trol authority.
(b) Any provision of ORS 448.305, 454.010
to 454.040, 454.205 to 454.255, 454.405,
454.425, 454.505 to 454.535, 454.605 to
454.745, ORS chapter 467 and this chapter.
(c) Any rule or standard or order of the
commission adopted or issued pursuant to
ORS 448.305, 454.010 to 454.040, 454.205 to
454.255, 454.405, 454.425, 454.505 to 454.535,
454.605 to 454.745, ORS chapter 467 and this
chapter.
(d) Any term or condition of a variance
granted by the commission or department
pursuant to ORS 467.035.
(e) Any rule or standard or order of a
regional authority adopted or issued under
authority of subsection (1) of ORS 468.535.
(2) Each day of violation under subsection
(1) of this section constitutes a separate of-
fense.
(3) (a) In addition to any other penalty
provided by law, any person who intentionally
or negligently causes or permits the discharge
of oil into the waters of the state shall incur a
civil penalty not to exceed the amount of
$20,000 for each violation.
(b) In addition to any other penalty pro-
vided by law, any person who violates the
terms or conditions of a permit authorizing
waste discharge into the air or waters of the
state or violates any law, rule, oander or stan-
dard in ORS 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.405, 454.425, 454.505
to 454.535, 454.605 to 454.745 and this chap-
ter relating to air or water pollution shall
incur a civil penalty not to exceed the amount
of $10,000 for each day of violation.
(4) Paragraphs (c) and (e) of subsection (1)
of this section do not apply to violations of
motor vehicle emission standards which are
not violations of standards for control of noise
emissions.
(5) Notwithstanding the limits of subsec-
tion (1) of ORS 468.130 and in addition to any
other penalty provided by law, any person who
intentionally or negligently causes or permits
open field burning contrary to the provisions
of ORS 468.450, 468.455 to 468.480, 476.380
and 478.960 shall be assessed by the depart-
ment a civil penalty of at least 320 but not
more than $40 for each acre so burned. Any
fines collected by the department pursuant to
this subsection shall be deposited with the
State Treasurer to the credit of the General
Fund and shall be available for general gov-
ernmental expense. [Formerly 449.SS3; 1975 c.559
514; 1977 c.511 S5; 1979 c.353 SH
POLLUTION CONTROL
FACILITIES TAX CREDIT
468.150 Field sanitation and straw
utilization and disposal methods as "pol-
lution control facilities." After alternative
methods for field sanitation and straw utiliza-
tion and disposal are approved by the commit-
tee and the department, "pollution control
facility," as defined in ORS 466.155, shall
include such approved alternative methods
and persons purchasing and utilizing such
methods shall be eligible for the benefits
allowed by ORS 468.155 to 468.190. [1975 c.559
115]
Note: 468.150 waa (meted into law by-the Legisla-
tive Assembly bin waa not added to or made • put of
ORS chapter 468 or any »erie« therein by legislative
741
-------
ATTACHMENT 3: Administrative Procedures
and Rules of State Agencies, Oregon Revised
Statutes, Chapter 183.
51
-------
Chapter 183
1979 REPLACEMENT PART
Administrative Procedures and Rules of State
Agencies
READABILITY OF PUBLIC WRITINGS
183.025 State agency required to prepare public
writings in readable form; definition!
GENERAL PROVISIONS
183J10 Definition* for ORS 183.310 to 183.500
183.315 Application of ORS 183-310 to 183.500 to
certain agencies
183.325
183.330
183J336
183.337
18&341
183.355
183JMO
18&370
18&390
183.400
183.410
183.413
183.418
183.418
ADOPTION OF RULES
Delegation of rulemaldng authority to
officer or employe
Description of organization; service of
order, effect of not putting order in writ*
ing
Notice requirements for rule adoption;
temporary rule adoption, amendment or
suspension; substantial compliance re-
quired
Procedure for agency adoption of federal
rules
Model rules of procedure) establishment;
compilation; publication; agencies re-
quired to adopt procedural rules
Filing and taking effect of rules; filing of
executive orders; copies
Publication of rules and orders; excep-
tions; requirements; bulletin; judicial
notice; citation
Distribution of published rules
Petitions requesting adoption of rules
Judicial determination of validity of rule
Agency determination of applicability of
rule or statute to petitioner; effect; judi-
cial review
CONTESTED CASES
Notice to party before hearing of rights
and procedures; legislative findings;
failure to provide notice
Notice, bearing and record In contested
case; informal disposition; hearings offi-
cer; statement of ex parte ~minWM-
tions
Interpreter for handicapped person in
contested case
183.425
183.430
183.435
183.440
183.450
183.440
183.462
183.464
183.470
183.480
183.482
183.484
183.485
183.486
183.490
183.495
Depositions or subpena of material wit-
ness; discovery
Hearing on refused to renew license; excep-
tions
Period allowed to request hearing for
license refusal on grounds other than
test or inspection results
Suapenas in contested cases
Evidence in contested cases
Examination of evidence by agency ha
contested cases
tions; notice
Proposed order by hearings officer;
airw>rwrJTK»nt by agency; exemptions
Orders in contested cases
JUDICIAL REVIEW
Judicial review of agency orders
Jurisdiction for review of contested
procedure; scope of court authority
Jurisdiction for review of orders other
than contested case*; procedure; scope
of court authority
Mandate of court on review of contested
Form and scope of reviewing court's
decision
Agency may be compelled to act
Awarding costs and attorney feee when
order reversed or remanded
APPEALS FROM CIRCUIT COURTS
183J500 Appeals
REVIEW OF STATE AGENCY RULES
183.710 Definitions for ORS 183.710 to 183.728
183.715 Submission of adopted rule to Legislative
Counsel required
183.720 Procedure for review of agency rule
183.725 Report of Legislative Counsel Committee
to agencies and Legislative Assembly
CROSS REFERENCES
Agriculture department code of regulations, application
of ORS chapter 183 thereto, 561.192
Consolidated permit hearings, 447.800 to 447.866
Debt consolidating agency licenses, forfeiture not subject
to ORS 183.310 to 183.500. 697.670
Land Use Board of Appeals, 1979 c.722
Military rule* and regulations, Issiianre by Governor,
396.125
Open meeting law not applicable to state
ducting hearings on contested rates. 192.690
52
-------
_ STATE EXECUTIVE DEPARTMENT AND ORGANIZATTON _
Public Utility CommiMioner's rulei. 756.400 to 756.450 Newsmen as witneaae* at administrative proceedinn
Radnr ConuniMion, hearing* punujmt to ORS 183.310 to 44.510 to 44.540 '
183.500. Ch. 4«2
Revocation or tuipeiuton of teaching certificate not 183J10
n . "7^^ OrolM.310 to 183.5ii
-------
ADMINISTRATIVE PROCEDURES AND RULES OF STATE AGENCIES 183.310
183.010 (K«p»le>d by 1971 c.734 521]
183.020 (Kep«aled by 1971 c.734 521]
(b) "Contested case" does not include pro-
ceedings in which an agency decision rests
solelv on the result of a test.
READABILITY OF PUBLIC
WRITINGS
183.025 State agency required to
prepare public writings in readable form;
definitions. (1) Every state agency shall
when reasonable prepare its public writings in
simple language with short, precise, affirma-
tive, active-voice sentences.
(2) Aa used in this section:
(3) "License" includes the whole or part of
any agency permit, certificate, approval, reg-
istration or similar form of permission re-
quired by law to pursue any commercial activ-
ity, trade, occupation or profession.
(4) (a) "Order" means any agency action
expressed orally or in writing directed to a
named person or named persons, other than
employes, officers or members of an agency.
"Order" includes any agency determination or
decision issued in connection with a contested
(a) "Public writing" means any rule, form, case proceeding. "Order" includes:
license or notice prepared by a state agency. (A) ^ency action ^der ORS chapter 657
(b) "State agency" means any officer, making dete,-ruination for purposes of unem-
board, commission, department, division or ployment compensation of employes of the
institution in the executive or administrative state; and t
branch of state government. [Formerly 182.066] ^ Agency action under ORS chapter 240 |
183.030 CRep«»led by 1971 c.734 521] which grants, denies, modifies, suspends or |
183.040 fRapwled by 1971 c.734 521] T^l ^ ^ OT privilege °f *" emPloVe \.
of the state.
183.050 {JUp«al«d by 1971 c.734 S21] ,,, «*-,. 1 -J -» f 1 ':'
188.060 [1957 c.147 51; r*p«*l*d by 1969 c.292 531 tion expressed in writing. "Final order" does :-_.
not include any tentative or preliminary agen- :
GENERAL PROVISIONS * declaration or statement that:
(A) Precedes final agency action; or
183.310 Definition* for ORS 183.310 to (B) r^g not preclude further agency :
183.500. As used in ORS 183.310 to 183.500: consideration of the subject matter of the j
(1) "Agency" means any state board, com- statement or declaration. t
mission, department, or division thereof, or (5) Tarty" means: \
officer authorized by law to make rules or to Each n Qr entitled M of [
issue orders except those in the legislative ^ ^^ ^ fl^u^^ f
and judicial branches. 6 ^ , , ^
._. . . „_ ^ ^ , „ j (b) Each person or agency named by the
(2) (a) "Contested case" means a proceed- to ^ ^ Qr "*
ing before an agency: ,. _^ * __••„.
/^ T i.. u il • j- -j i i i • u* (c) •^^y Per8011 requesting to participate
(A) In which the individual legal nghts, before ihe 3^^ ^ a party or in a limited
duties or privileges of specific parties are ^^ gtatug which ihe a^ncy determines
required by statute or Constitution to be de- either hag ^ ^terest in the outcome of the
termined only after an agency hearing at agency>B proceeding or represents a public
which such specific parties are entitled to ^terest ^ ^^ re^t. The agency's determi-
appear and be heard; nation is subject to judicial review in the
(B) Where the agency has discretion to manner provided by ORS 183.482 after the
suspend or revoke a right or privilege of a agency has issued its final order in the
person; proceedings.
(C) For the suspension, revocation or re- (6) "Person" means any individual, part-
fusal to renew or issue a license where the nership, corporation, association, govemmen-
licensee or applicant for a license demands tal subdivision or public or private orgamza-
such hearing; or tion of any character other than an agency.
CD) Where the agency by rule or order (7) "Rule" means any agency directive,
provides for hearings substantially of the standard, regulation or statement of general
character required by ORS 183.415, 183.425, applicability that implements, interprets or
183.450, 183.460 and 183.470. prescribes law or policy, or describes the pro-
F
54
-------
183.315
STATE EXECUTIVE DEPARTMENT AND ORGANIZATION
cedure or practice requirements of any agen-
cy. The term includes the amendment or re-
peal of a prior rule, but does not Include:
(a) Unless a hearing is required by stat-
ute, internal management directives, regula-
tions or statements which do not substantially
affect the interests of the public:
(A) Between agencies, or their officers or
their employes; or
(B) Within an agency, between its officers
or between employes.
(b) Action by agencies directed to other
agencies or other units of government which
do not substantially affect the interests of the
public.
(c) Declaratory rulings issued pursuant to
ORS 183.410 or 305.105.
(d) Intra-agency memoranda.
(e) Executive orders of the Governor.
(f) Rules of conduct for persons committed
to the physical and legal custody of the Cor-
rections Division of the Department of Human
Resources, the violation of which will not
result in:
(A) Placement in segregation or isolation
status in excess of seven days.
(B) Institutional transfer or other transfer
to secure confinement status for disciplinary
reasons.
(C) Disciplinary procedures adopted pur-
suant to ORS 421.180. [1957 c.717 81; 1968 c.285
478*; 1967 c.419 f32; 1969 c.80 837a; 1971 c.734 81; 1973
c.386 »4; 1973 c.621 8la; 1977 c.374 «1; 1977 c.798 81;
1979 c.693 86]
183.315 Application of ORS 183.310 to
183.500 to certain agencies. (1) The provi-
sions of ORS 183.410, 183.415, 183.425,
183.440, 183.450, 183.460, 183.470 and
183.480 do not apply to local government
boundary commissions created pursuant to
ORS 199.425 or 199.430, the Department of
Revenue, State Accident Insurance Fund,
Public Utility Commissioner, Workers' Com-
pensation Department or State Board of Pa-
role.
(2) ORS 183.310 to 183.500 does not apply
with respect to actions of the Governor au-
thorized under ORS chapter 240.
(3) The provisions of ORS 183.410,
183.415, 183.425, 183.440, 183.450 and
183.460 do not apply to the Employment Ap-
peals Board or the Employment Division.
(4) The Employment Division shall be
exempt from the provisions of ORS 183.310 to
183.500 to the extent that a formal finding of
the United States Secretary of Labor is made
that such provision conflicts with the terms of
the federal law, acceptance of which by the
state is a condition precedent to continued
certification by the United States Secretary of
Labor of the state's law.
(5) The provisions of ORS 183.415 to
183.430, 183.440 to 183.460, 183.470 to
183.485 and 183.490 to 183.500 do not apply
to orders issued to persons who have been
committed pursuant to ORS 137.124 to the
custody of the Corrections Division. [1971 c.734
819; 1973 c.612 83; 1973 c.621 92; 1973 c.694 81; 1975
c.759 81; 1977 c.804 646; 1979 cOS83 87]
183.317 [1971 c.734 8187; repealed by 1979 c.593
834]
183.320 [1957 c.717 815; repealed by 1971 c.734 821]
ADOPTION OF RULES
183.325 Delegation of rulemaking
authority to officer or employe. Unless
otherwise provided by law, an agency may
delegate its rulemaking authority to an officer
or employe within the agency. A delegation of
authority under this section must be made in
writing. Any officer or employe to whom rule-
making authority is delegated under this
section is an "agency" for the purposes of the
rulemaking requirements of ORS 183.310 to
183.500. [1979 c.593 810]
183.330 Description of organization;
service of order; effect of not putting or-
der in writing. (1) In addition to other rule-
making requirements imposed by law, each
agency shall publish a description of its organ-
ization and the methods whereby the public
may obtain information or make submissions
or requests.
(2) An order shall not be effective as to
any person or party unless it is served upon
him either personally or by mail. This subsec-
tion is not applicable in favor of any person or
party who has actual knowledge of the order.
(3) An order is not final until it is reduced
to writing. [1957 c.717 82; 1971 c.734 84; 1975 c.759
83; 1979 CJ593 §8]
183335 Notice requirements for rule
adoption; temporary rule adoption,
amendment or suspension; substantial
compliance required. (1) Prior to the adop-
55
-------
ADMINISTRATIVE PROCEDURES AND RULES OF STATE AGENCIES 183.335
tion, amendment or repeal of any rule, the
agency shall give notice of ita intended action:
(a) In the manner established by rule
adopted by the agency under subsection (4) of
ORS 183.341, which provides a reasonable
opportunity for interested persons to be noti-
fied of the agency's proposed action;
(b) In the bulletin referred to in ORS
183.360 at least 15 days prior to the effective
date; and
(c) To persons who have requested notice
pursuant to subsection (7) of this section.
(2) (a) The notice required by subsection
(1) of this section shall state the subject mat-
ter and purpose of the intended action in
sufficient detail to inform a person that the
person's interests may be affected, and the
time, place and manner in which interested
persona may present their views on the in-
tended action.
(b) The agency shall include with the
notice of intended action given under subsec-
tion (1) of this section:
(A) A citation of the statutory or other
legal authority relied upon and bearing upon
the promulgation of the rule;
(B) A statement of the need for the rule
and a statement of how the rule is intended to
meet the need;
(C) A list of the principal documents,
reports or studies, if any, prepared by or relied
upon by the agency in considering the need for
and in preparing the rule, and a statement of
the location at which those documents are
available for public inspection. The list may
be abbreviated if necessary, and if so abbrevi-
ated there shall be identified the location of a
complete list; and
CD) A statement of fiscal impact identify-
ing state agencies, units of local government
and the public which may be economically
affected by the adoption, amendment or repeal
of the rule and an estimate of that economic
impact on state agencies, units of local gov-
ernment and the public.
(c) The Secretary of State may omit the
information submitted under paragraph (b) of
this subsection from publication in the bulle-
tin referred to in ORS 183.360.
(3) When an agency proposes to adopt,
amend or repeal a rule, it shall give interested
persons reasonable opportunity to submit data
or views. Opportunity for oral hearing shall be
granted upon request received from 10 per-
sona or from an association having not less
than 10 members within 15 days after agency
notice. An agency holding a hearing upon a
request made under this subsection is not
required to give additional notice of the hear-
ing in the bulletin referred to in ORS 183.360
if the agency gives notice in compliance with
its rules of practice and procedure other than
a requirement that notice be given in the
bulletin. The agency shall consider fully any
written or oral submission.
(4) Upon request of an interested person
received within 15 days after agency notice
pursuant to subsection (1) of this section, the
agency shall postpone the date of its intended
action no less than 10 nor more than 90 days
in order to allow the requesting person an
opportunity to submit data, views or argu-
ments concerning the proposed action. Noth-
ing in this subsection shall preclude an agency
from adopting a temporary rule pursuant to
subsection (5) of this section.
(5) Notwithstanding subsections (1) to (4)
of this section, an agency may adopt, amend
or suspend a rule without prior notice or hear-
ing or upon any abbreviated notice and hear-
ing that it finds practicable, if the agency
prepares:
(a) A statement of its findings that its
failure to act promptly will result in serious
prejudice to the public interest or the interest
of the parties concerned and the specific rea-
sons for its findings of prejudice;
(b) A citation of the statutory or other
legal authority relied upon and bearing upon
the promulgation of the rule;
(c) A statement of the need for the rule
and a statement of how the rule is intended to
meet the need; and
(d) A list of the principal documents, re-
ports or studies, if any, prepared by or relied
upon by the agency in considering the need for
and in preparing the rule, and a statement of
the location at which those documents are
available for public inspection.
(6) (a) A rule adopted, amended or sus-
pended under subsection (5) of this section is
temporary and may be effective for a period of
not longer than 180 days. The adoption of a
rule under this subsection does not preclude
the subsequent adoption of an identical rule
under subsections (1) to (4) of this section.
(b) A rule temporarily suspended shall
regain effectiveness upon expiration of the
temporary period of suspension unless the
56
-------
183.337
STATE EXECUTIVE DEPARTMENT AND ORGANIZATION
rule IB repealed under subsections (1) to (4) of
this section.
(7) Any person may request in writing
that an agency mail him copies of its notices
of intended action given pursuant to subsec-
tion (1) of this section. Upon receipt of any
request the agency shall acknowledge the
request, establish a mailing list and maintain
a record of all mailings made pursuant to the
request. Agencies may establish procedures
for establishing and maintaining the mailing
lists current and, by rule, establish fees neces-
sary to defray the costs of mailings and main-
tenance of the lists.
(8) This section does not apply to rules
establishing an effective date for a previously
effective rule or establishing a period during
which a provision of a previously effective
rule will apply.
(9) This section does not apply to ORS
279.025 to 279.031 and 279.310 to 279.990
relating to public contracts and purchasing.
(10) (a) No rule is valid unless adopted in
substantial compliance with the provisions of
this section in effect on the date the rule is
adopted.
Co) In addition to all other requirements
with which rule adoptions must comply, no
rule adopted after October 3, 1979, is valid
unless submitted to the Legislative Counsel
under ORS 183.715.
(11) Notwithstanding the provisions of
subsection (10) of this section, an agency may
correct its failure to substantially comply with
the requirements of subsections (2) and (5) of
this section in adoption of a rule by an amend-
ed filing, so long as the noncompliance did not
substantially prejudice the interests of per-
sons to be affected by the rule.
(12) Unless otherwise provided by statute,
the adoption, amendment or repeal of a rule
by an agency need not be based upon or sup-
ported by an evidentiary record. [1971 c.734 S3;
1973 c.612 II; 1975 c.136 111; 1975 c.759 «4; 1977 c.181
tl; 1977 c.344 16; 1977 c.394 lla; 1977 c.798 {2; 1979
c.5931111
Notes October 3. 1979. wu substituted for "the
effective date of thii 1979 Act," chapter 593, Oregon
Law* 1979. However, Motion 36, chapter 593, Oregon
Law* 1979, become* effective July 1, 1980. See section
36a. chapter 593. Oregon Law* 1979.
183.337 Procedure for agency adop-
tion of federal rules. (1) Notwithstanding
ORS 188.335, when an agency is required to
adopt rules or regulations promulgated by an
agency of the Federal Government and the
agency has no authority to alter or amend the
content or language of those rules or regula-
tions prior to their adoption, the agency may
adopt those rules or regulations under the
procedure prescribed in this section.
(2) Prior to the adoption of a federal rule
or regulation under subsection (1) of this
section, the agency shall give notice of the
adoption of the rule or regulation, the effec-
tive date of the rule or regulation in this state
and the subject matter of the rule or regula-
tion in the manner established in subsection
(1) of ORS 183.335.
(3) After giving notice the agency may
adopt the rule or regulation by filing a copy
with the Secretary of State in compliance with
ORS 183.355. The agency is not required to
conduct a public hearing concerning the adop-
tion of the rule or regulation.
(4) Nothing in this section authorizes an
agency to amend federal rules or regulations
or adopt rules in accordance with federal
requirements without giving an opportunity
for hearing as required by ORS 183.335. {1979
c.593 §15]
183.340 [1957 c.717 §3 (3); 1971 c.734 56; repealed by
1975 c.759 §5 (183.341 enacted in lieu of 183.340)]
183.341 Model roles of procedure;
establishment; compilation; publication;
agencies required to adopt procedural
rules. (1) The Attorney General shall prepare
model rules of procedure appropriate for use
by as many agencies as possible. Any agency
may adopt all or part of the model rules by
reference without complying with the rule-
making procedures under ORS 183.335. No-
tice of such adoption shall be filed with the
Secretary of State in the manner provided by
ORS 183.355 for the filing of rules. The model
rules may be amended from time to time by
an adopting agency or the Attorney General
after notice and opportunity for hearing as
required by rulemnking procedures under
ORS 183.310 to 183.500.
(2) All agencies shall adopt rules of proce-
dure to be utilized in the adoption of rules and
conduct of proceedings in contested cases or, if
exempt from the contested case provisions of
ORS 183.310 to 183.500, for the conduct of
proceedings.
(3) The Secretary of State shall publish in
the Oregon Administrative Rules:
(a) The Attorney General's model rules
adopted under subsection (1) of this section;
57
-------
ADMINISTRATIVE PROCEDURES AND RULES OF STATE AGENCIES 183.360
(b) The procedural rules of all agencies
that have not adopted the Attorney General's
model rules; and
(c) The notice procedures required by
subsection (1) of ORS 183.335.
(4) Agencies shall adopt rules of procedure
which will provide a reasonable opportunity
for interested persona to be notified of the
agency's intention to adopt, amend or repeal a
rule. Rules adopted or amended under thia
subjection shall be approved by the Attorney
General.
(5) No rule adopted after September 13,
1975, is valid unless adopted in substantial
compliance with the rules adopted pursuant to
subsection (4) of this section. [1976 c.759 16
(•n*cted In U«u of 183.340); 1979 c.593 §12}
183.350 [1957 c.717 »3 (1), (2); repwdwi by 1971
c.734 »21]
183,355 Filing and taking effect of
rules; filing of executive orders; copies. (1)
(a) Each agency shall file in the office of the
Secretary of State a certified copy of each rule
adopted by it.
(b) Notwithstanding the provisions of
paragraph (a) of this subsection, an agency
adopting a rule incorporating published stan-
dards by reference is not required to file a
copy of those standards with the Secretary of
State if:
(A) The standards adopted are unusually
voluminous and costly to reproduce; and
(B) The rule filed with the Secretary of
State identifies the location of the standards
•o incorporated and the conditions of their
availability to the public.
(2) Each rule is effective upon filing aa
required by subsection (1) of this section,
except that:
(a) If a later effective date is required by
statute or specified in the rule, the later date
is the effective date.
(b) A temporary rule becomes effective
upon filing with the Secretary of State, or at a
designated later date , only if the statement
required by subsection (5) of ORS 183.335 is
filed with the rule. The agency shall take
appropriate measures to make temporary
rules known to the persons who may be affect-
ed by them.
(3) When a rule is amended or repealed by
an agency, the agency shall file a certified
copy of the amendment or notice of repeal
with the Secretary of State who shall appro-
priately amend the compilation required by
subsection (1) of ORS 183.360.
(4) A certified copy of each executive order
issued, prescribed or promulgated by the Gov-
ernor shall be filed in the office of the Secre-
tary of State.
(5) No rule- of which a certified copy is
required to be filed shall be valid or effective
against any person or party until a certified
copy is filed in accordance with this section.
However, if an agency, in disposing of a con-
tested case, announces in its decision the
adoption of a general policy applicable to such
case and subsequent cases of like nature the
agency may rely upon such decision in disposi-
tion of later coses.
(6) The Secretary of State shall, upon
request, supply copies of rules, or orders or
designated parts of rules or orders, making
and collecting therefor fees prescribed by ORS
177.130. All receipts from the sale of copies
shall be deposited in the State Treasury to the
credit of the General Fund. [1971 c.734 »5; 1973
c.612 92; 1976 c.759 17; 1977 c.788 «2b; 1979 c.593 J131
183.360 Publication of rules and or-
ders; exceptions; requirements; bulletin;
judicial notice; citation. (1) The Secretary of
State shall compile, index and publish all
rules adopted by each agency. The compilation
shall be supplemented or revised as often as
necessary and at least once every six months.
Such compilation supersedes any other rules.
The Secretary of State may make such compi-
lations of other material published in the
bulletin as is desirable.
(2) (a) The Secretary of State has discre-
tion to omit from the compilation rules the
publication of which would be unduly cumber-
some or expensive if the rule in printed or
processed form is made available on applica-
tion to the adopting agency, and if the compi-
lation contains a notice summarizing the
omitted rule and stating how a copy thereof
may be obtained. In preparing the compilation
the Secretary of State shall not alter the
sense, meaning, effect or substance of any
rule, but may renumber sections and parts of
sections of the rules, change the wording of
headnotes, rearrange sections, change refer-
ence numbers to agree with renumbered chap-
ters, sections or other parts, substitute the
proper subsection, section or chapter or other
division numbers, change capitalization for
the purpose of uniformity, and correct mani-
fest clerical or typographical errors.
58
-------
183.370 STATE EXECUTIVE DEPARTMENT AND ORGANIZATION
(b) The Secretary of State may by rule
prescribe requirement*, not inconsistent with
law, for the manner and form for filing of
rules adopted or amended by agencies. The
Secretary of State may refuse to accept for
filing any rules which do not comply with
those requirements.
(3) The Secretary of State shall publish at
least at monthly intervals a bulletin which:
(a) Briefly indicates the agencies that are
proposing to adopt, amend or repeal a rule, the
subject matter of the rule and the name, ad-
dress and telephone number of an agency
officer or employe from whom information
and a copy of any proposed rule may be ob-
tained;
(b) Contains the text or a brief description
of all rules filed under ORS 183.355 since the
last bulletin indicating the effective date of
the rule; and
(c) Contains executive orders of the Gover-
nor.
(4) Court* shall take judicial notice of
rules and executive orders filed with the Sec-
retary of State.
(5) The compilation required by subsection
(1) of this section shall be titled Oregon Ad-
ministrative Rules and may be cited as
"O.A.R." with appropriate numerical indica-
tions. [1067 c.717 |4 (1), (2), (3); 1961 c.464 II; 1971
c.734 17; 1973 c.612 14; 1978 e.759 |7«; 1977 e.394 (2;
1979 c. 593 116]
183.370 Distribution of published
rule*. The bulletins and compilations may be
distributed by the Secretary of State free of
charge as provided for the distribution of
legislative materials referred to in ORS
171.228. Other copies of the bulletins and
compilations shall be distributed by the Secre-
tary of State at a cost determined by the Sec-
retary of State. Any agency may compile and
publish its rules or all or part of its rules for
purpose of distribution outside of the agency
only after it proves to the satisfaction of the
Secretary of State that agency publication is
necessary. (1967 c.717 14 (4); 1959 c.260 11; 1969
0.174 M; 1976 a 769 IB; 1977 0.394 18]
121]
1S&3SO [1987 c.717 14 (6);
by 1971 c.734
183.390 Petitions requesting adoption
of rules. An interested person may petition
an agency requesting the promulgation,
amendment or repeal of a rule. The Attorney
General shall prescribe by rule the form for
such petitions and the procedure for their
submission, consideration and disposition. Not
later than 30 days after the data of submis-
sion of a petition, the agency either shall deny
the petition in writing or shall initiate rule-
making proceedings in accordance with ORS
183.335. [1957 c.717 15; 1971 c.734 J8]
183.400 Judicial determination of
validity of rule. (1) The validity of any rule
may be determined upon a petition by any
person to the Court of Appeals in the manner
provided for review of orders in contested
cases. The court shall have jurisdiction to
review the validity of the rule whether or not
the petitioner has first requested the agency
to pass upon the validity of the rule in ques-
tion, but not when the petitioner is a party to
an order or a contested case in which the
validity of the rule may be determined by a
court
(2) The validity of any applicable rule may
also be determined by a court, upon review of
an order in any manner provided by law or
pursuant to ORS 183.480 or upon enforcement
of such rule or order in the manner provided
bylaw.
(3) Judicial review of a rule shall be limit-
ed to an examination of:
(a) The rule under review;
(b) The statutory provisions authorizing
the rule; and
(c) Copies of all documents necessary to
demonstrate compliance with applicable rule-
making procedures.
(4) The court shall declare the rule invalid
only if it finds that the rule:
(a) Violates constitutional provisions;
(b) Exceeds the statutory authority of the
agency; or
(c) Was adopted without onmpliannt with
applicable rulemaking procedures.
(5) In the case of disputed allegations of
irregularities in procedure which, if proved,
would warrant reversal or remand, the Court
of Appeals may refer the allegations to a
Master appointed by the court to take evi-
dence and make fi™««g« of fact The court's
review of the Master's findings of fact shall be
de novo on the evidence.
(6) The court shall not declare a rule in-
valid solely because it was adopted without
compliance with applicable rulemaking proce-
dures after a period of two yean after the date
59
-------
ADMINISTRATIVE PROCEDURES AND RULKS OF STATE AGENCIES 183.413
the rule was filed in the office of the Secretary
of State, if the agency attempted to comply
with those procedures and its failure to do so
did not substantially prejudice the interests of
the parties.
(7) The court shall not declare a rule in-
valid because the fiscal impact statement
required by ORS 183.335 is insufficient or
inadequate. [1957 c.717 56; 1971 c.734 99; 1975 c.759
59; 1979c.693«17]
183.410 Agency determination of
applicability of rule or statute to petition-
er; effect; judicial review. On petition of any
interested person, any agency may in its dis-
cretion issue a declaratory ruling with respect
to the applicability to any person, property, or
state of facts of any rule or statute enforce-
able by it. A declaratory ruling is binding
between the agency and the petitioner on the
state of facts alleged, unless it is altered or set
aside by a court. However, the agency may,
where the ruling is adverse to the petitioner,
review the ruling and alter it if requested by
the petitioner. Binding rulings provided by
this section are subject to review in the Court
of Appeals in the manner provided in ORS
183.480 for the review of orders in contested
cases. The Attorney General shall prescribe by
rule the form for such petitions and the proce-
dure for their submission, consideration and
disposition. The petitioner shall have the right
to submit briefs and present oral argument at
any declaratory ruling proceeding held pur-
suant to this section. [1957 c.717 57; 1971 c.734 JlO;
1973 c.612 »51
CONTESTED CASES
183.413 Notice to party before hear-
ing of righto and procedure; legislative
finding*; failure to provide notice. (1) The
Legislative Assembly finds that the citizens of
this state have a right to be informed as to the
procedures by which contested cases are heard
by state agencies, their rights in hearings
before state agencies, the import and effect of
hearings before state agencies and their rights
and remedies with respect to actions taken by
state agencies. Accordingly, it is the purpose
of subsections (2) to (4) of this section to set
forth certain requirements of state agencies so
that citizens shall be fully informed as to
these matters when exercising their rights
before state agencies.
(2) Prior to the commencement of a con-
tested case hearing before any agency includ-
ing those agencies identified in ORS 183.315,
the agency shall inform each party to the
hearing of the following matters:
(a) If a party is not represented by an
attorney, a general description of the hearing
procedure including the order of presentation
of evidence, what kinds of evidence are admis-
sible, whether objections may be made to the
introduction of evidence and what kind of
objections may be made and an explanation of
the burdens of proof or burdens of going for-
ward with the evidence.
(b) Whether a record will be made of the
proceedings and the manner of T^nlcing the
record and its availability to the parties.
(c) The function of the record-making with
respect to the perpetuation of the testimony
and evidence and with respect to any appeal
from the determination or order of the agency.
(d) Whether an attorney will represent the
agency in the matters to be heard and wheth-
er the parties ordinarily and customarily are
represented by an attorney.
(e) The title and function of the person
presiding at the hearing with respect to the
decision process, including, but not limited to,
the manner in which the testimony and evi-
dence taken by the person presiding at the
hearing are reviewed, the effect of that per-
son's determination, who makes the final
determination on behalf of the agency, wheth-
er the person presiding at the hearing is or is
not an employe, officer or other representative
of the agency and whether that person has the
authority to make a final independent deter-
mination.
(f) In the event a party is not represented
by an attorney, whether the party may during
the course of proceedings request a recess if at
that point the party determines that represen-
tation by an attorney is necessary to the pro-
tection of the party's rights.
(g) Whether there exists an opportunity
for an adjournment at the end of the hearing
if the party then determines that additional
evidence should be brought to the attention of
the agency and the hearing reopened.
(h) Whether there exists an opportunity
after the hearing and prior to the final deter-
mination or order of the agency to review and
object to any proposed findings of fact, conclu-
sions of law, summary of evidence or recom-
mendations of the officer presiding at the
hearing.
60
-------
183.415
STATE EXECUTIVE DEPARTMENT AND ORGANIZATION
(i) A description of the appeal process an order is effective only if a request for hear-
from the-determination or order of the agency, ing is not made by the party, the record may
(3) The information required to be given °« made at ** time °f issuance of the order
to a party to a hearing under subsections (2) and if the order IB based only on material
and (3) of this section may be given in writing Deluded in the application or other submw-
or orally before commencement of the hear- siona of *** P"^' *» •««"* »*y » ««*fr
ing and so notify the party, and such material
'_.,., . ... . shall constitute the evidentiary record of the
(4) The failure-of an agency;to give notice proceeding if hearing is not requested.
of any item specified m subsections (2) and (3) . •
of this section, shall not invalidate any deter- Testimony shall be taken upon oath or
mination or order of the agency unless upon affirmation of the witness from whom re-
an appeal from or review of the determination ceived. The officer presiding at the hearing
or order a court finds that the failure affect* *«" administer oaths or affirmations to
the substantial rights of the complaining witnesses.
party. In the event of such a finding, the court (8) The officer presiding at the hearing
shall remand the matter to the agency for a shall place on the record a statement of the
reopening of the hearing and shall direct the substance of any written or oral ex parte
agency as to what steps it shall take to reme- communications on a fact in issue made to the
dy the prejudice to the rights of the complain- officer during the pendency of the proceeding
ing party. [1979 c.593 ${37,38,39] and notify the parties of the communication
.««.,. *, ^ t _j j j> - and of their right to rebut such communica-
183.415 Notice, hearing and record in tiona
contested case; informal disposition; hear- ,' -. , . ^ _. , , „
ings officer; statement of ex parte commu- . (9> The r*00"1 m a contested case shall
nications. (1) In a contested case, all parties Delude:
shall be afforded an opportunity for hearing (a) All pleadings, motions and intormedi-
after reasonable notice, served personally or ate rulings.
by registered or certified mail. Q,) Evidence received or considered.
(2) The notice shall include: (c) stipulations.
(a) A statement of the party's right to (d) A statement of matters officially no-
heanng, or a statement of the time and place ticed.
of the hearing; .". _ . , „ , , ,.
, , , , . . (e) Questions and offers of proof, objec-
(b) A statement of the authority and juris- tions and T^ja^ thereon.
diction under which the hearing is to be held;
, . , .. , (0 A statement of any ex parte oommum-
(c) A reference to the particular sections of ^^ on a fact ^ j^ made to the officer
the statutes and rules involved; and presiding at the hearing.
(d) A short and plain statement of the ^ p^^d fmding8 and exceptions.
matters asserted or charged. ~ r . .
... _ .. . . . , , , , (h) Any proposed, intermediate or final
(3) Parties may elect to be represented by order ^ g*^ ^^ w ft hearin^
counsel and to respond and present evidence _£*:„_
and argument on all issues involved.
.... . , . , , , (10) A verbatim oral, written or mechani-
(4) Agencies may adopt rulesofjprocedure ^ ^ ^ ^ ^ ^
govenung participation ««>nte9ted cases by ^ testim j^ ^^ ^ed not be
persons appearing as limited parties. SaWribed unless^requested for purposes of
(5) Unless precluded by law, informal rehearing or court review. The agency may
disposition may be made of any contested case charge the party requesting transcription the
by stipulation, agreed settlement, consent ^g^ Of a copy Of transcription, unless the
order or default. Informal settlement may be party files an appropriate affidavit of indigen-
made in license revocation proceedings by ^ However, upon petition, a court having
written agreement of the parties and the jurisdiction to review under ORS 183.480 may
agency consenting to a suspension, fine or reduce or eliminate the charge upon finding
other form of intermediate sanction. that it is equitable to do so, or that matters of
(6) An order adverse to a party may be general interest would be determined by re-
issued upon default only upon prima facie view of the order of the agency. (1971 c.734 513;
case made on the record of the agency. When 1979 c.593 518]
61
-------
ADMINISTRATIVE PROCEDURES AND RULES OF STATE AGENCIES 183.435
183.418 Interpreter for handicapped
person in contested case. (1) When a handi-
capped person is a party to a contested case,
he is entitled to a qualified interpreter to
interpret the proceedings to the handicapped
person and to interpret the testimony of the
handicapped person to the agency.
(2) (a) Except as provided in paragraph (b)
of this subsection, the agency shall appoint
the qualified interpreter for the handicapped
person; and the agency shall fix and pay the
fees and expenses of the qualified interpreter
if:
The petition shall set forth the name and
address of the witness whose testimony is
desired, a showing of the materiality of his
testimony, and a request for an order that the
testimony of such witness be taken before an
officer named in the petition for that purpose.
If the witness resides in this state and is un-
willing to appear, the agency may issue a
subpena as provided in ORS 183.440, requir-
ing his appearance before such officer.
(2) An agency may, by rule, prescribe
other methods of discovery which may be used
in proceedings before the agency. [1971 c.734
914; 1975 c.759 §11; 1979 c.593 519]
(A) The handicapped person makes a
verified statement and provides other infor-
mation in writing under oath showing his 183.430 Hearing on refusal to renew
inability to obtain a qualified interpreter, and license; exceptions. (1) In the case of any
provides any other information required by license which must be periodically renewed,
the agency concerning his inability to obtain where the licensee has made timely applica-
such an interpreter; and tion for renewal in accordance with the rules
(B) It appears to the agency that the han- °f ^ a«en(?' ^ .license shaUJ «* *»
dicapped person is without means and is un- f.66™^ to uexPire' de^ltf «"? ^^ exPira:
able to obtain a qualified interpreter. tion date thereon, until the agency concerned
.,.„.,,. , , , has issued a formal order of grant or denial of
(b) If the handicapped person knowingly ^ renewal. !„ case an agency proposes to
and voluntarily files with the agency a writ- refuse to renew ^^ licenaef upon demand of
ten statement that he does not desire a quali- ^ iicensee> the agency must grant hearing as
fied interpreter to be appointed for him, the pr0vided by ORS 183.310 to 183.500 before
agency shall not appoint such an interpreter issuance Of order of refusal to renew. This
for the handicapped person. subsection does not apply to any emergency or
(3) As used in this section: temporary permit or license.
(a) "Handicapped person" means a person (2) In any case where the agency finds a
who cannot readily understand or communi- serious danger to the public health or safety
cate the English language, or cannot under- g^d gets forth specific reasons for such find-
stand the proceedings or a charge made iafftt ^ agency may suspend or refuse to
against him, or is incapable of presenting or renew a license without hearing, but if the
assisting in the presentation of his defense, licensee demands a hearing within 90 days
because he is deaf, or because he has a physi- after the date of notice to the licensee of such
cal hearing impairment or physical speaking suspension or refusal to renew, then a hearing
impairment. must ^ granted to the licensee as soon as
(b) "Qualified interpreter" means a person practicable after such demand, and the agency
who is readily able to communicate with the shall issue an order pursuant to such hearing
handicapped person, translate the proceedings as required by ORS 183-310 to 183.500 con-
for him, and accurately repeat and translate firming, altering or revoking its earlier order.
the statements of the handicapped person to Such a hearing need not be held where the
the agency. [1973 c 386 {6] order of suspension or refusal to renew is
[1987 c.717 56 (i); «peal*d by 1971 c.734 accompanied by or is pursuant to a citation
for violation which is subject to judicial deter-
mination in any court of this state, and the
183.425 Depositions or subpena of order by its terms will terminate in case of
material witness; discovery. (1) On petition final judgment in favor of the licensee. [1957
of any party to a contested case, the agency ^n §8 (3), (4); 1965 c2i2 ji; 1971 c.734 511]
may order that the testimony of any material
witness may be taken by deposition in the 183.435 Period allowed to request
manner prescribed by law for depositions in hearing for license refusal on grounds
civil actions. Depositions may also be taken by other than test or inspection results. When
the use of audio or audio-visual recordings, an agency refuses to issue a license required
62
-------
183.440
STATE EXECUTIVE DEPARTMENT AND ORGANIZATION
to pursue any commercial activity, trade, (3) Every party shall have the right of
occupation or profession if the refusal is based cross examination of witnesses who testify
on grounds other than the results of a test or and shall have the right to submit rebuttal
inspection that agency shall grant the person evidence. Persons appearing in a limited party
requesting the license 60 days from notified- status shall participate in the manner and to
tion of the refusal to request a hearing. the extent prescribed by rule of the agency.
fFornwrly 670.285] (4} Agencies may take notice of judicially
183.440 Subpenas in contested cases. c°S^2ah^ facte' and they may take official
(1) The agency shall issue subpenas to any **«? ofgw»»l, technical or scientific facts
party to ^contested case upon request upon a ^thm theu- s^ahzed knowle™ l/*!^ "^ ^^ Tl^u7
parties or officers or employes of the agency, ^ * •ff«Jf « opportumty to contest the
shall receive fees and mileage as prescribed by facts -80 notflc^- .**nae8 ?** "^ ^ef
law for witnesses in civil actions. ^?ence; techmcal competence and special-
ized knowledge in the evaluation of the evi-
(2) If any person fails to comply with any dence presented to them.
subpena so issued or any party or witaess (5) No ^^ shall te ^^ Qr Qrder
refuses to testify on any natters on which he ^ ^^ exce^ consideration of the
may be lawfully interrogated, the judge of the whole record Qr
circuit court of any county, on the application ^ dted b
of the agency or of a designated representa- and in accordanc8 ^th. reliable, robative
tive of the agency or of the party requesting and ^b8tai,tiai evidence.
the issuance of the subpena, shall compel
obedience by proceedings for contempt as in «) Agencies may, at their discretion, be
the case of disobedience of the requirements of represented at hearings by the Attorney Gen-
a subpena issued from such court or a refusal eral-
-------
ADMINISTRATIVE PROCEDURES AND RULES OF STATE AGENCIES 183.482
subsections (1) to (4) of this section, unless a
hearings officer is authorized or required by
as to each ultimate fact required to support
the agency's order.
after the 30th day following the date of ser- (4) Every final order shall include a rita-
vice of the proposed order, unless the agency tion o{ the statutes under which the order may
within that period issues an amended order. **> appealed. [1957 c.717 911; 1971 c.734 917; 1979 •
,0. . , , . , c.593§22J r
(2) An agency may by rule specify a penod I
of time after which a proposed order will •:
become final that is different from that sped- JUDICIAL REVIEW \-
fied in subsection (1) of this section. i
/«i it j i. v ^ jj- • 183.480 Judicial review of agency F
, * v £PnCy '^T'",8, ^ •d*tMB- orders. (1) Any person adversely affected i l
|
tune after which the proposed order will be- ^ tive to form> A ^j^ for rearing
come feud by « specified penod of time. The orS^^neeanotbefiledaaTcondS |
^fth^±i f°S P ^^ tion of J^1*1 »»*•" u*1*" -Pecifically
of the penod of extension. otherwise provided by statute or agency rule. !
(4) Subsections (1) to (4) of this section do (2) Judidal review of final ^^ of
not apply to the Public Utility Commissioner des shall ^ Mlel ^^ b
or the Energy Facility Siting Council. 183>482f 183 484> '183.4|o, 183.495 and
(5) The Governor may exempt any agency 183.500.
or any class of contested case hearings before (3) No ^^ m ^ ^^jj ^ maintained
an agency from the requirements in whole or M to ^ validit^ of a order t a
part of subsections (1) to (4) of this section by final order M ^^0^1 m tj^ 3^^ ^
executive order. The executive order shall ORS 183 ^ 183.484,183.490 and 183.500 or
contain a statement of the reasons for the except upon ^0^^^ t^t ^ agency ^ pro_
exemption. ceeding without probable cause, or that the
(6) The Governor shall report to the Sixty- party will suffer substantial and irreparable i-
first Legislative Assembly identifying those harm if interlocutory relief is not granted. j.
agencies and classes of contested cases that (4) judicial review of aiders issued pur- f
have received exemptions under subsections 8uant to ORS 482.550 shall be as provided by '
(5) and (6) of this section and stating the rea- QRS 482.560. [1957 c.717 Ji* 1983 c449 |i: 1971 i
sons for granting those exemptions. [1979 c.593 ,,734 518; 1975 c.759 U4; 1979 <,5W J23]
5»36,36b] '-
Not« S*etion 36., ch-pfr 893. O«gon Uw. 1979. 183.482 Jurisdiction for review of I
provide: contested cases; procedare; scope of court
authority. (1) Jurisdiction for judicial review
S.C. 36.. Section 36 of this 1979 Act uk« effect of contested cases is conferred upon the Court
JuJy ll 198° of Appeals. Proceedings for review shall be
183.470 Orders In contested cases. In instituted by filing a petition in the Court of "
a contested case: Appeals. The petition shall be filed within 60
,,._ , j ,. ^ . ,_ days only following the date the order upon
(U Every order adverse to a party to the which the petiti
-------
183.482
STATE EXECUTIVE DEPARTMENT AND ORGANIZATION
60th day following the date the petition was
filed, and in such cases, petition for judicial
review shall be filed within 60 days only fol-
lowing such date. Date of service shall be the
date on which the agency delivered or mailed
its order in accordance with ORS 183.470.
(2) The petition shall state the nature of
the order the petitioner desires reviewed, and
shall state whether the petitioner was a party
to the administrative proceeding, was denied
•tatus as a party or is seeking judicial review
as a person adversely affected or aggrieved by
the agency order. In the latter case, the peti-
tioner shall, by supporting affidavit, state the
facts showing how the petitioner is adversely
affected or aggrieved by the agency order.
Before deciding the issues raised by the peti-
tion for review, the Court of Appeals shall
decide, from facts set forth in the affidavit,
whether or not the petitioner is entitled to
petition as an adversely affected or an ag-
grieved person. Copies of the petition shall be
served by registered or certified mail upon the
agency, and all other parties of record in the
agency proceeding.
under review, but, by stipulation of all parties
to the review proceeding, the record may be
shortened. Any party unreasonably refusing
to stipulate to limit the record may be taxed
by the court for the additional costs. The court
may require or permit subsequent corrections
or additions to the record when deemed desira-
ble. Except .as specifically provided in this
subsection, the cost of the record shall not be
taxed to the petitioner or any intervening
party. However, the court may tax such costs
and the cost of agency transcription of record
to a party filing a frivolous petition for re-
view.
(5) If, on review of a contested case, before
the date set for hearing, application is made to
the court for leave to present additional evi-
dence, and it is shown to the satisfaction of
the court that the additional evidence is mate-
rial and that there were good and substantial
reasons for failure to present it in the proceed-
ing before the agency, the court may order
that the additional evidence be taken before
y the agency upon such conditions as the court
deems proper. The agency may modify its
(3) (a) The filing of the petition shall not findings and order by reason of the additional
stay enforcement of the agency order, but the evidence and shall, within a time to be fixed
agency may do so upon a showing of: by the court, file with the reviewing court, to
(A) Irreparable injury to the petitioner; b*«ne a P"1* rf the record^he additional
^. ' *—* » j *~ evidence, together with any modifications or
new findings or orders, or its certificate that it
(B) A colorable claim of error in the order, elects to stand on its original findings and
(b) When a petitioner makes the showing order, as the case may be.
required by paragraph (a) of this subsection, (6) At time stAoequent to ^ filin^ of
the agency shall grant the stay unless the ^ tition for revicw and ^ to ^ date
agency .determines that.substantial pubkc ^ for heari ^ a^K=^ withdraw its
harm will result if the order is stayed If the order for ^ of reconsideration. If an
agency denies the stay, the denial shall be in withdraws an order for purposes of
writing and shall specifically state the sub- ^^deration, it shall, within such time as
stantial public: harm that would result from ^ court ^ ^^ affim modify m ^^
the granting of the stay. itg order K ^ petitioner ^ dissatisfied with
(c) When the agency grants a stay it may the agency action after withdrawal for pur-
irapose such reasonable conditions as the poses of reconsideration, he may file an
giving of a bond or other undertaking and amended petition for review and the review
that the petitioner file ail documents neces- shall proceed upon the revised order.
sary to bring the matter to issue before the ,„, „ . , , , „ .
Court of Appeals within specified reasonable ,(7> ]tevMT of a <******»* case shall be
periods of time. confined to the record, the court shall not
, ,v . , . , , . . substitute its judgment for that of the agency
(d) Agency denial of a motion for stay is ag to any issue of fact or agency discretion. In
subject to review by the Court of Appeals the case of disputed allegations of irregulari-
under such rules as the court may establish. ties m procedure before the agency not shown
(4) Within 30 days after service of the in the record which, if proved, would warrant
petition, or within such further time as the reversal or remand, the Court of Appeals may
court may allow, the agency shall transmit to refer the allegations to a Master appointed by
the reviewing court the original or a certified the court to take evidence and make findings
copy of the entire record of the proceeding of fact upon them. The court shall remand the
65
-------
ADMINISTRATIVE PROCEDUHES AND RULES OF STATE AGENCIES 183.485
order for further agency action if it finds that
either the fairness of the proceedings or the
correctness of the action may have been im-
paired by a material error in procedure or a
failure to follow prescribed procedure.
(8) (a) The court may affirm, reverse or
remand the order. If the court finds that the
agency ha* erroneously interpreted a provi-
sion of law and that a correct interpretation
compels a particular action, it shall:
(A) Set aside or modify the order, or
(B) Remand the case to the agency for
further action under a correct interpretation
of the provision of law.
(b) The court shall remand the order to the
agency if it finds the agency's exercise of
discretion to be:
(A) Outside the range of discretion dele-
gated to the agency by law;
(B) Inconsistent with an agency rule, an
officially stated agency position, or a prior
agency practice, if the inconsistency is not
explained by the agency; or
(C) Otherwise in violation of a constitu-
tional or statutory provision.
(c) The court shall set aside or remand the
order if it finds that the order is not supported
by substantial evidence in the record. [1975
c.759 816; 1977 c.798 54; 1979 c.593 524]
183.484 Jurisdiction for review of
orders other than contested cases; proce-
dure; scope of court authority. (1) jurisdic-
tion for judicial review of orders other -than
contested cases is conferred upon the Circuit
Court for Marion County and upon the circuit
court for the county in which the petitioner
resides or has a principal business office.
Proceedings for review under this section
shall be instituted by filing a petition in the
Circuit Court for Marion County or the circuit
court for the county in which the petitioner
resides or has a principal business office.
(2) Petitions for review shall be filed with-
in 60 days only following the date the order is
served, or if a petition for reconsideration or
rehearing has been filed, then within 60 days
only following the date the order denying such
petition is served. If the agency does not oth-
erwise act, a petition for rehearing or recon-
sideration shall be deemed denied the 60th
day following the date the petition was filed,
and in such case petition for judicial review
shall be filed within 60 days only following
such date. Date of service shall be the date on
which the agency delivered or mailed its order
in accordance with ORS 183.470.
(3) The petition shall state the nature of
the petitioner's interest, the facts showing
how the petitioner is adversely affected or
aggrieved by the agency order and the ground
or grounds upon which the petitioner contends
the order should be reversed or remanded. The
review shall proceed and be conducted by the
court without a jury .
(4) (a) The court may affirm, reverse or
remand the order. If the court finds that the
agency has erroneously interpreted a provi-
sion of law and that a correct interpretation
compels a particular action, it shall:
(A) Set aside or modify the order; or
(B) Remand the case to the agency for
further action under a correct interpretation
of the provision of law.
(b) The court shall remand the order to the
agency if it finds the agency's exercise of
discretion to be:
(A) Outside the range of discretion dele-
gated to the agency by law;
(B) Inconsistent with an agency rule, an
officially stated agency position, or a prior
agency practice, if the inconsistency is not
explained by the agency; or
(C) Otherwise in violation of a constitu-
tional or statutory provision.
, (c) The court shall set aside or remand the
order if it finds that the order is not supported
by substantial evidence in the record.
(5) In the case of reversal the court shall
make special findings of fact based upon the
evidence in the record and conclusions of law
indicating clearly all aspects in which the
agency's order is erroneous. [1975 c.759 J16; 1979
c.284 $121; 1979 c.593 §25aJ
183.485 Mandate of court on review
of contested case. (1) The court having juris-
diction for judicial review of contested cases
shall direct its mandate to the agency issuing
the order being reviewed and may direct its
mandate to the circuit court of any county
designated by the prevailing party.
(2) Upon receipt of the court's mandate,
the clerk of the circuit court shall enter a
judgment or decree in the journal and docket
it pursuant to the direction of the court to
which the appeal is made. [1973 c.612 $7]
66
-------
183.436
STATE EXECUTIVE DEPARTMENT AND ORGANIZATION
183.489 Form and scope of reviewing
court's decision. (1) The reviewing court's
decision under ORS 183.482 or 183.484 may
be mandatory, prohibitory, or declaratory in
form, and it shall provide whatever relief is
appropriate irrespective of the original form
of the petition. The court may:
(a) Order agency action required by law,
order agency exercise of discretion when re-
quired by law, set aside agency action, remand
the case for further agency proceedings or
decide the rights, privileges, obligations, re-
quirements or procedures at issue between the
parties; and
(b) Order such ancillary relief as the court
finds necessary to redress the effects of offi-
cial action wrongfully taken or withheld.
183.510 [1957 c.717 |16; repealed by 1971 c734 821]
REVIEW OF STATE AGENCY
RULES
183.710 Definitions for ORS 183.710 to
183.725. As used in ORS 183.710 to 183.725,
unless the context requires otherwise:
(1) "Committee'' means the Legislative
Counsel Committee.
(2) "Rule" has the meaning given in ORS
183.310.
(3) "State agency" has the meaning given
to "agency" in ORS 183.310. [Formerly 171.706]
183.715 Submission of adopted rule
to Legislative Counsel required. A state
(2) If the court sets aside agency action or agency that adopts a rule shall submit a copy
remands the case to the agency for further of the adopted rule to the Legislative Counsel
proceedings, it may make such interlocutory ^thin 10 days after the agency files a certi-
order as the court finds necessary to preserve fied copy of the rule in the office of the Secre-
the interests of any party and the public pend- t^ Of state as provided in subsection (1) of
ing further proceedings or agency action. QRS 183.355. [Formerly 171.707]
(3) Unless the court finds a ground for 183720 Procedure for
setting aside, modifying, remanding, or order- ieo.7*
ing agency action or ancillary relief under a
specified provision of this section, it shall , . *A~+-A „,!-.
>7j J.L _ii ,.«„„ .«« .~,-, committee, a proposed rule or an adopted rule
affirm the agency action. [1979 c.593 J27] vTT * F*-«~ r
of a state agency.
183.490 Agency may be compelled to (2) The Legislative Counsel may review
act The court may, upon petition as described an adopted rule of a state agency upon the
in ORS 183.484, compel an agency to act written request of any member of the Legisla-
where it has unlawfully refused to act or tive Assembly or of any person affected by the
make a decision or unreasonably delayed ^g
taking action or making a decision. [1967 c.717 . .
«37w9 c.593 nsi (3) When reviewing a rule of a stote agen-
cy pursuant to subsection (1) or (2) of this
183.496 Awarding costs and attorney section, the Legislative Counsel shall:
fees when order reversed or remanded. (a) Determine whether the rule appears to
Upon judicial review of a final order of an ^ ^thin the intent and scope of the enabling
agency when the reviewing court reverses or legislation purporting to authorize its adop-
remands the order it may, in its discretion, ^ion; ^3
award costs, including reasonable attorney ' .
fees, to the petitioner to be paid from funds 0»> Determine whether the rule raises any
appropriated to the agency. [1976 c.759 ne.1 constitutional issue other than described m
rr r paragraph (a) of this subsection, and if so, the
nature of the issue.
APPEALS FROM CIRCUIT ^ ^ ^afcing a determination under
COURTS paragraph (a) of subsection (3) of this section,
183.500 Appeals. Any party to the pro- JJe Legislative Counsel shaU^herever possi-
ceedings before the circuit court may appeal bl«. *°Uow **"£* "****** Prmciples of
from the decree of that court to the Court of statutory construction.
Appeals. Such appeal shall be taken in the (5) The Legislative Counsel shall prepare
manner provided by law for appeals from the written findings on a rule reviewed, setting
circuit court in suits in equity. (1957 c.717 114; forth the determinations made under subeec-
1969 c.198 {76] tion (3) of this section.
67
-------
ADMINISTRATIVE PROCEDURES AND RULES OF STATE AGENCIES 183.725
(6) When a review of a rule is made by the
Legislative Counsel, the Legislative Counsel
shall send a copy of the determinations made
under subsection (3) of this section to the
committee, to the state agency concerned, and
if the review was requested by a member of
the Legislative Assembly or by a person af-
fected by the rule, to the person requesting
the review. The committee may direct the
Legislative Counsel to send a copy of the
determinations to the presiding officer of a
house of the Legislative Assembly, who may
refer the determinations to any legislative
committee concerned. [Formerly m.709]
183.725 Report of Legislative Counsel
Committee to agencies and Legislative
Assembly. (1) The committee, at any time,
may review any proposed or adopted rule of a
state agency, and may report its recommenda-
tions in respect to the rule to the agency.
(2) The committee shall report to the Leg-
islative Assembly at each regular session on
the review of state agency rules by the Legis-
lative Counsel and the committee. The report
shall include:
(a) The determinations made by the Legis-
lative Counsel under subsection (3) of ORS
183.720;
(b) The recommendations made by the
committee to state agencies under subsection
(1) of this section; and
(c) Any recommendations by the commit-
tee for legislation. [Formerly 171.713]
CERTIFICATE OF LEGISLATIVE COUNSEL
Punuant to ORS 173.170, I, Thomas G. Clifford, Legislative Counsel, do hereby certify that I hav* oomparad each
tection printed in this chapter with the original section in the enrolled bill, and that the sections in this chapter are
comet copiM of the enrolled sections, with the exception of the changes in form permitted by ORS 173.160 and other
changes specifically authorized by law.
Don* st Salem, Oregon, Thomas G. Clifford
October 1,1979. Legislative Counsel
68
-------
ATTACHMENT 4: Oregon Administrative
Rules, Chapter 340: Division 12, Sections 340-12-050, 070, 075;
Division 26, Section 340-26-025; Division 11.
69
-------
OREGON ADMEVISTKATW: RULES
CHAPTER 340. DfVlSION 12 — DEPART.V1KNT OF ENVIRONMEtNTAL QUALITY
Air QuuJJty Schedule of Civil Penalties
340-12-050 In addition to any liability, duty, or other
penalty provided by law, the Director, or the director of a
regional air quality control authority, may assess a civil penalty
for any violation pertaining to air quality by service of a
written notice of assessment of civil penalty upon the respon-
dent. The amount of such civil penalty shall be determined
consistent with the following schedule.
(1) Not less than one hundred dollars (S100) nor more than
ten thousand dollars (S 10.000) for violation of an order of the
Commission, Department, or regional air quality control
authority.
(2) Not less than fifty dollars (S'O) nor more than ten
thousand dollars (S 10.000) for:
(a) Any violation of any condition of any Air Contaminant
Discharge Permit. Indirect Source Permit, or variance; or
(b) Any violation which causes, contributes to, or
threatens the emission of any air contaminant into the outdoor
atmosphere.
(3) Not less than twenty-five dollars (525) nor more than
seven thousand five hundred dollars (57,.500) for any other
violation. ,
Sue. Auih.. ORS Ch. 468
Hi«: DEQ 78, f. 9-6-74. ef. 9-23-74; DEQ 5-1980. t 4 et.
1-28-80
Written Notice of Assessment of Civil Penalty; When Penalty
Payable
340 12-070 (1)A civil penalty shall be due and payable
when the respondent is served a written notice of assessment
of civil penalty signed by the Director. Service snail be in
accordance with rule 340-11-097.
(2) The wntten notice of assessment of civil penalty shall
be in the form prescribed by rule 340-11-100 for a notice of
opportunity for a hearing in a contested cose, and shall state
the amount of the penalty or penalties assessed.
(3) The rules prescribing procedure m contested case
proceedings contained in Division 11 shall apply thereafter.
Slat. Auth.. ORS Ch.
HIM. DEQ 73. f. 9-6-74. ef. 9-25-74
Compromise or Settlement of Civil Penalty by Director
340-12-<)7S At any time subsequent to service of the
written notice of assessment of civil penalty, the Director is
authorized to seek to compromise or settle any unpaid civil
penalty which he deems appropriate. Any compromise or
settlement executed by the Director shall not be final until
approved by the Commission.
Slai. Auth.. ORS Ch.
Hist. DEQ 78. f 9-6-74. ef. 9-25-74
70
-------
(b) Certain Burning Allowed Under Prohibition Conditions. Under prohibition
conditions no permits for agricultural open burning may be issued and no burning
may be conducted, except where an auxiliary liquid or gaseous fuel is used such that
combustion is essentially complete, or an approved field sanitizer is used.
(c) Priority for Burning on Marginal Days. Permits for agricultural open
I.urn ing may be issued on each marginal day in each permit jurisdiction in the Wil-
lamette Valley, following the priorities set forth in ORS ^68.^50 which gives
perennial grass seed fields used for grass seed production first priority, annual
grass seed fields used for grass seed production second priority, grain fields
third priority and all other burning fourth priority.
26-025 C IVIL PENALTIES.
In addition to any other penalty provided by law:
(1) Any person who intentionally or negligently causes or permits open field
burning contrary to the provisions of ORS *»68.'i5Q, ^68.^55, 1»68.1»80, ^76.380 and
^78,960 shall be assessed by the Department a civil penalty of at least $20, but
not more than $'iO for each acre so bjj^ned.
(2) In lieu of any per-acre civil penalty assessed pursuant to Subsection (1)
of this section, the Director may assess a specific civil penalty for any violation
pertaining to agricultural burning operations by service of a written notice of
assessment of civil penalty upon the respondent. The amount of such civil penalty
shall be determined consistent with the followino schedule:
(a) $1500 upon any person who:
(A) Conducts open field burning on any acreage which has not been registered
with the Department for such purposes. >
(D) Conducts open field burning on any acreage without first obtaining and
readily demonstrating a valid open field burning permit for all acreage so burned.
(b) $1000 upon any person who:
(A) Fails to report with reasonable accuracy all acreage burned in association
with or ,TS a direct result of a permitted open field burning operation.
(B) Toils to actively extinguish all flames and major smoke sources when pro-
hibition Conditions arc imposed by the Department.
(f) Conduct1., burning usiiuj an approved alternative burning method contrary to
any specific conditions or provisions governing such operation.
(c) $bOO upon any person who:
(A) Initiates an open field burn after expiration of the designated permit period
(B) Conducts an agricultural open burning operation which does not comply with
any specific restrictions established by the Department related to required burninn
technique"-,, field and fuel conditions, or field and fuel treatments.
(d) 5300 upon any person who:
(A) Fail', to readily demonstrate at the site of the burn operation the
capability to monitor the Department's field burning schedule broadcasts.
(e) Not less than $50 nor more than $10,000 upon any person who commits any
other violation pertaining to agricultural burning operations or the rules of this
D i v i v, i on .
(f) The civil penalty for each repeat offense which occurs within five years
of a previous violation shall be at a minimum, double the amount previously assessed
but not more than $10,000.
(3) Any person planting contrary to the restrictions of subsection (l) of
ORS 'i68.^65 shall be assessed by the Department a civil penalty of $25 for each
acre planted contrary to the restrictions.
71
-------
OREGON ADMINISTRATIVE RULES
CHAPTER 340, DIVISION 11 - DEPARTMENT OF ENVIRONMENTAL QUALITY
ft
RULES OF GENERAL APPLICABIL-
ITY
AND ORGANIZATION
DIVISION 11
RULES OF PRACTICE AND PROCEDURE
[ED. NOTE: Administrative Orders DEQ 69 (Temp) and DEQ 72
repealed previous rules 340-11-005 through 340-11-170(SA 10).)
Definition*
340-11-005 Unless otherwise required by context, as used
in this Division:
(1) "Adoption" means the carrying of a motion by the
Commission with regard to the subject matter or issues of an
intended agency action.
(2) "Agency Notice" means publication in OAR and
mailing to those on the list as required by ORS 183.335(6).
(3) "Commission" means the Environmental Quality
Commission.
(4) "Department" means the Department of Environmen-
tal Quality.
(5) "Director" means the Director of the Department or
any of his authorized delegates.
(6) "Filing" means receipt in the office of the Director.
Such filing is adequate where filing is required of any docu-
ment with regard to any matter before the Commission,
Department or Director, except a claim of personal liability.
(7) "License" has the same meaning as given in ORS
133.310.
(8) "Order" has the same meaning as given in ORS
183.3(0.
(9) "Party" has the same meaning as given in ORS 183.310
and includes the Department in all contested case hearings
before the Commission or Department or any of their presiding
officers.
(10) "Person" has the same meaning as given in ORS
183.310.
Ml) "Presiding Officer" means the Commission, its
Chairman, the Director, or any individual designated by the
Commission or the Director to preside in any contested case,
public, or other hearing. Any employee of the Department who
actually presides in any such hearing is presumptively designat-
ed by the Commission or Director, such presumptive designa-
tion to be overcome only by a written statement to the contrary
bearing the signature of the Commission Chairman or the
Director.
(12) "Rule" has the same meaning as given in ORS
183.310.
Sut. Auth.; ORS Ch, 183 & 468
HUt: DEQ 69(Temp). f. & el. 3-22-74; DEQ 72. f. 6-5-74, ef.
6-25-74; DEQ 78. f. 9-6-74, ef. 9-25-74; DEQ 122, f. & ef.
9-13-76; DEQ 25-1979, f. & ef. 7-5-79
Public Informational Hearings
340-11-007 (1) Whenever there is required or permitted a
hearing which is neither a contested case hearing nor a rule
making hearing as defined in ORS Chapter 183, the Presiding
Officer shall follow any applicable procedural law, including
case law and rules, and take appropriate procedural steps to
accomplish the purpose of the hearing. Interested persons
may, on their own motion or that of the Presiding Officer,
submit written briefs or oral argument to assist the Presiding
Officer in his resolution of the procedural matters set forth
herein.
(2) Prior to the submission of testimony by members of the
general public, the Presiding Officer shall present and offer for
the record a summary of the questions the resolution of which,
in the Director's preliminary opinion, will determine the matter
at issue. He shall also present so many of the facts relevant to
the resolution of these questions as he then possesses and
which can practicably be presented in that forum.
(3) Following the public information hearing, or within a
reasonable time after receipt of the report of the Presiding
Officer, the Director or Commission shall take action upon the
matter. Prior to or at the time of such action, the Commission
or Director shall address separately each substantial distinct
issue raised in the hearings record. This shall be in writing if
taken by the Director or shall be noted in the minutes if taken
by the Commission in a public forum.
Stat. Auth.: ORS Ch. 183 & 468
Hlit: DEQ 78, f. 9-6-74. ef. 9-25-74; DEQ 122. f. & ef. 9-13-76
Hearings on Variances
340-11-008 [DEQ 78, f. 9-6-74, ef. 9-25-76;
Repealed by DEQ 122,
f.&ef. 9-13-76]
Rulemaklng
Notice of Rulemaidiig
340-11-010 (1) Notice of intention to adopt, amend, or
repeal any ruJe(s) shall be in compliance with applicable state
and federal laws and rules, including ORS Chapter '83 and
sections (2) and (3) of this rule.
(2) In addition to the news media on the list established
pursuant to ORS 183.335 (6), a copy of the notice shall be
furnished to such news media as the Director may deem
appropriate.
(3) In addition to meeting the requirements of ORS
183.335(1), the notice shall contain the following:
(a) Where practicable and appropriate, a copy of the rule
proposed to be adopted;
(b) Where the proposed rule is not set forth verbatim in the
notice, a statement of the time, place, and manner in which a
copy of the proposed rule may be obtained and a description of
the subject and issues involved in sufficient detail to inform a
person that his interest may be affected;
(c) Whether the Presiding Officer will be a hearing officer
or a member of the Commission;
(d) The manner in which persons not planning to attend the
hearing may offer for the record written testimony on the
proposed rule.
Stat. Auth.: ORS Ch. 183 & 468
Hist: DEQ 69
-------
OREGON ADMINISTRATIVE RULES
CHAFFER 340, DIVISION II ~ DEPARTMENT OF ENVIRONMENTAL QUALITY
before any member of the Commission or other Presiding
Officer.
(2) At the commencement of the hearing, any person
wishing to be heard shall advise the Presiding Officer of his
name and address and affiliation on a provided form for listing
witnesses, and such other information as the Presiding Officer
may deem appropriate. Additional persons may be heard at the
discretion of the Presiding Officer.
(3) At the opening of the hearing the Presiding Officer
shall state, or have stated, the purpose of the hearing.
(4) The Presiding Officer shall thereupon describe the
manner in which persons may present their views at the
hearing.
(5) The Presiding Officer shall order the presentations in
such manner as he deems appropriate to the purpose of the
hearing.
(6) The Presiding Officer and any member of the Commis-
sion shall have the right to question or examine any witness
making a statement at the hearing. The Presiding Officer may,
at hii discretion, permit other persons to examine witnesses.
(7) There shall be no rebuttal or additional statements
given by any witness except as requested by the Presiding
Officer. However, when such additional statement is given,
the Presiding Officer may allow an equal opportunity for reply
by those whose statements were rebutted.
(8) The hearing may be continued with recesses as
determined by the Presiding Officer until all listed witnesses
present and wishing to make a statement have had an opportu-
nity to do so.
(9) The Presiding Officer sha)J, where practicable and
appropriate, receive all physical and documentary exhibits
presented by witnesses. Unless otherwise required by law or
rule, the exhibits shall be preserved by the Department for a
period of one year, or, at the discretion of the Commission or
Presiding Officer, returned to the persons who submitted them.
(10) The Presiding Officer may, at any time during the
hearing, impose reasonable time limits for oral presentation
and may exclude or limit cumulative, repetitious, or immaterial
matter. Persons with a concern distinct from those of citizens
in general, and those speaking for groups, associations, or
governmental entities may be accorded preferential time
limitaiions as may be extended also to any witness who, in the
judgment of the Presiding Officer, has such expertise,
experience, or other relationship to the subject matter of the
hearing as to render his testimony of special interest to the
jgcncy.
(IDA verbatim oral, written, or mechanical record shall
be made of all the hearing proceedings, or, in the alternative, a
record in the form of minutes. Question and answer periods or
other informalities before or after the hearing may be excluded
from the rec-ord. The record shall be preserved for three years,
unless oihewj&e required by law or rule.
Suit. Auth.: ORS Ch. 183 & 468
HI*: DEQ WTemp), f. & et. 3-22-74. DEQ 72. f. 6-5-74, ef.
6-25-74; DEQ 78. 1. 9-6-74. ef. 9-25-74; DEQ 122, f. A ef.
9-13-76
Presiding Officer's Report
340-11-030 (1) Where the hearing has been conducted
:-«fore other than the full Commission, the Presiding Officer,
•vithin a reasonable time after the hearing, shall provide the
Commission with a written summary of statements given and
sxhibits received, and a report of his observations of physical
txperiments, demonstrations, or exhibits. The Presiding
Officer may also make recommendations to the Commission
Tosed upon the evidence presented, but the Commission is not
xxind by such recommendations.
(2) At any time subsequent to the hearing, the Commission
nay review the entire record of the hearing and make a
decision bused upon the record. Thereafter, the Presiding
Officer shall be relieved of his duty to provide a report
thereon.
Stet. Auth.: ORS Ch. 183 & 468
JUst: DEQ 69
-------
OREGON ADMINISTRATIVE RULES
CHAPTER 340, DIVISION 11 - DEPARTMENT OF EIWIRONMENTAL QUALITY
(d) The Commission shall, within thirty (30) days after the
dnte of submission of the properly drafted petition, either deny
the petition or initiate rule making proceedings in accordance
with applicable procedures for Commission rulemaking.
(4) In the case of a denial of a petition to adopt, amend, or
repeal a rule, the Commission shall issue an order setting forth
its reasons in detail for denying the petition. The order shall be
mailed to the petitioner and all other persons upon whom a
copy of the petition was served.
(5) Where procedures set forth in this section are found to
conflict with those prescribed by the Attorney General, the
latter shall govern upon motion of any party other than the
Commission or Department.
Sut. Auch.. ORS Ch. 183 A 468
Hint DEQ 122, f. A ef. 9-13-76
Notice of Hearing
340-11-050 (DEQ 69(Temp). f. & ef. 3-22-74;
DEQ 72, f. 6-5-74. ef. 6-23-74;
Repealed by DEQ 122.
f.&ef. 9-13-76]
Temporary Rules
340-11-052 The Commission may adopt temporary rules
and file the some, along with supportive findings, pursuant to
ORS IH3. 335(5) and 183.355(2).
Sut. Aulh.: ORS Ch 183 A 468
Hfe* DF.Q 122. f. A ef. 9-13-76
Subpeniu
340-11-055
Intervention
340-11-060
[DEQ 69(TemP), f. & ef. 3-22-74;
DEQ 72, f. 6-5-74, ef. 6-25-74;
Repealed by DEQ 122,
f. &ef. 9-13-76]
inEQ69(Temp), f. & ef. 3-22-74;
DEQ 72, f. 6-5-74, ef. 6-25-74;
Repealed by DEQ 122,
f &ef.9-13-76]
Declaratory Rulings: Institution of Proceedings, Consideration of
IVdtion and Disposition of Petition
340-11-062 11) Pursuant to the provisions of ORS 183.410
imd the rules prescribed thereunder by the Attorney General,
and upon the petition of any person, the Commission may, in
its discretion, issue a declaratory ruling with respect to the
applicability to any person, property, or state of facts or any
rule or statute enforceable by the Department or Commission.
(2) The petition to institute proceedings for a declaratory
ruling shall contain:
(a) A detailed statement of the facts upon which petitioner
requests the Commission to issue its declaratory ruling;
(b) The rule or statute for which petitioner seeks declara-
tory ruling;
(c) Sufficient facts to show how petitioner will be affected
by the requested declaratory ruling;
(d) Ail propositions of law or contentions to be asserted by
petitioner;
(e) The question presented for decision by the Commis-
sion;
(0 The specific relief requested;
(g) The name and address of petitioner and of any other
person known by the petitioner to have special interest in the
requested declaratory ruling.
(3) The petition shall be typewritten or printed and in the
form provided in Appendix I to this rule 340-11-062. The
Commission may require amendments to petitions under this
rule but shall not refuse any reasonably understandable
petition for lack of form.
(4) The petition shall be deemed filed when received by the
Department.
(5) The Department shall, within thirty (30) days after the
petition is filed, notify the petitioner of the Commission's
decision not to issue a ruling or the Department shall, within
the same thirty days, serve all specially interested persons in
the petition by mail:
(a) A copy of the petition together with a copy of the
Commission's rules of practice; and
(b) A notice of the hearing at which the petition will be
considered. This notice shall have the contents set forth in
section (6) of this rule.
(6) The notice of hearing at which time the petition will be
considered shall set forth;
(a) A copy of the petition requesting the declaratory
ruling;
(b) T.ie time and place of hearing;
(c) A statement that the Commission will conduct the
hearing or a designation of the Presiding Officer who will
preside at and conduct the hearing.
(7) The hearing shall be conducted by and shall be under
the control of the Presiding Officer. The Presiding Officer may-
be the Chairman of the Commission, any Commissioner, the
Director, or any other person designated by the Commission or
its Chairman.
(N) At the hearing, petitioner and any other party shall
have the right to present oral argument. The Presiding Officer
may impose reasonable time limits on the time allowed for oral
argument. Petitioner and other parties may file with the agency
briefs in support of their respective positions. The Presiding
Officer shall fix the time and order of filing briefs.
(9) In those instances where the hearing was conducted
before someone other than the Commission, the Presiding
Officer shall prepare an opinion in form and in content as set
forth in section (11) of tins rule.
(10) The Commission is not bound by the opinion of the
Presiding Officer.
(11) The Commission shall issue its declaratory ruling
within sixty (60) days of the close of the hearing, or. where
briefs are permitted to be filed subsequent to tlie hearing,
within sixty (60) days of the time permitted for the filing of
briefs. The ruling shall be in the form of a written opinion and
shall set forth:
(a) The facts being .alleged by petitioner;
(b) The statute or rule being applied to those facts;
(c) The Commission's conclusion as to the applicability ol
the statute or rule to those facts;
(d) The Commission's conclusion as to the legal effect 01
result of applying the statute or rule to those facts;
(e) The reasons relied upon by the agency to support it!
conclusions.
(12) A declaratory ruling issued in accordance with thi:
section is binding between the Commission, the Department
and the petitioner on the state of facts alleged, or found U
exist, unless set aside by a court.
(13) Where procedures set forth in this section are founc
to conflict with those prescribed by the Attorney General, th<
latter shall govern upon motion by any party other than th<
Commission or Department.
Suit. Auth.: ORS Ch. 183 A 468
Hlrt: DEQ 122 f. A ef. 9-13-76
Conduct of the Hearing
3-Div. 11(9-1-79)
74
-------
OREGON ADMINISTRATIVE RULKS
CHAPTER 340. DIVISION 11 - DEPARTMENT OF ENVIRONMENTAL QUALITY
340-11-065
Mfqualtflcadon
340-11-070
[DEQ 69(TenH)), f. A el. 3-22-74;
DEQ 72, f. 6-5-74. ef. 6-24-74;
Repealed by DEQ 122.
f. A ef. 9-13-76]
[DEQ 69owen ot Chairmen or Hearing! Officer
340-1 1-075 [DEQ 69(Temp). f . & ef . 3-22-74;
DEQ 72, f. 6-5-74. ef. 6-24-74;
Repealed by DEQ 122,
f. A ef. 9-13-76]
Who May Appear at Haarlnm
340-11-080 PEQ 69(Temp), f . A ef . 3-22-74;
DEQ 72. f. 6-5-74. ef. 6-24-74;
Repealed by DEQ 122,
f. A ef. 9- 13-76]
Standard of Conduct at Hearings
340-1 1-085 [DEQ 69(Temp). f . A ef . 3-22-74;
DEQ 72. f . 6-5-74. ef. 6-24-74;
Repealed by DEQ 122.
f. A ef. 9- 13-76]
[DEQ 69rder upon a party other than for purposes of ORS 183. 335 or
or the purposes of notice to members of the public in general,
he notice or final order shall be personally delivered or sent by
egistercd or certified mail.
(2) The Commission or Department perfects service of a
vritten notice when the notice is posted, addressed to, or
>ersonally delivered to:
(a) The party; or
(b) Any person designated by law as competent to receive
,ervice of a summons or notice for the party; or
(c) Following appearance of Counsel for the party, the
larty's counsel.
(3) A party holding a license or permit issued by the
Department or Commission or an applicant therefore, shall be
•onclusively presumed able to be served at the address given in
us application, as it may be amended from time to time, until
he expiration date of the license or permit.
(4) Service of written notice may be proven by a certificate
-xecuted by the person effecting service.
(5) In all cases not specifically covered by this section, a
rule, or a statute, a writing to a person, if mailed to said person
at his last known address, is rebuttably presumed to have
reached said person in a timely fashion, notwithstanding lack
of certified or registered mailing.
Stat. Autta.: ORS Ch. 183 & 468
Hbc DEQ 78. f. 9-6-74. ef. 9-23-74; DEQ 122, f. & ef. 9-13-76
Written Notice of Opportunity for a Hearing
340-11-100 (1) Except as otherwise provided in ORS
183.430 and ORS 670.285, before the Commission or Depart-
ment shall by order suspend, revoke, refuse to renew, or
refuse to issue a license, or enter a final order in any other
contested case as defined in ORS Chapter 183, it shall afford
the licensee, the license applicant or other party to the
contested case an opportunity for hearing after reasonable
written notice.
(2) Written notice of opportunity for a hearing, in addition
to the requirements of ORS 183.415(2), may include:
(a) A statement that an answer will or will not be required
if the party requests a hearing, and, if so, the consequence of
failure to answer. A statement of the consequence of failure to
answer may be satisfied by serving a copy of rule 340-11-107
upon the party;
(b) A statement that the party may elect to be represented
by legal counsel;
(c) A statement of the party or parties who, in the
contention of the Department or Commission, would have the
burden of coming forward with evidence and the burden of
proof in the event of a hearing.
SUt. Auth.: ORS Ch. 183 & 468
Hbt: DEQ 69(Temp), f. & ef. 3-22-74; DEQ 72. f. 6-5-74. ef.
6-23-74; DEQ 78. f. 9-6-74, ef. 9-25-74; DEQ 122. f. &. ef.
9-13-76
Generally
340-11-
105 [DEQ 69(Tcmp). f. A ef. 3-22-74;
DEQ 72, f. 6-5-74. ef. 6-25-74;
Repealed by DEQ 78,
f. 9-6-74, ef. 9-25-74]
Answer Required: Consequences of Failure to Answer
340-11-107 (1) Unless waived in the notice of opportunity
for a hearing, and except as otherwise provided by statute or
rule, a party who has been served written notice of opportunity
for a hearing shall have twenty (20) days from the date of
mailing or personal delivery of the notice in which to file with
the Director a written answer and application for hearing.
(2) In the answer, the party shall admit or deny all factual
matters and shall affirmatively allege any and all affirmative
claims or defenses the party may have and the reasoning in
support thereof. Except for good cause shown:
(a) Factual matters not controverted shall be presumed
admitted;
(b) Failure to raise a claim or defense shall be presumed to
be waiver of such claim or defense;
(c) New matters alleged in the answer shall be presumed to
be denied unless admitted in subsequent pleading or stipulation
by the Department or Commission; and
(d) Evidence shall not be taken on any issue not raised in
the notice and the answer.
(3) In the absence of a timely answer, the Director on
behalf of the Commission or Department may issue a default
order and judgment, based upon a prima facie case made on
the record, for the relief sought in the notice.
SUt. Auth.. ORS Ch. 183 & 468
Hist: DEQ 78. f. 9-6-74. ef. 9-25-74; DEQ 122. f. & ef. 9-13-76
4-Div. 11(9-1-79)
75
-------
OREGON ADMINISTRATIVE RULES
CHAPTER 340, DIVISION 11 - DEPARTMENT OF ENVIRONMENTAL QUALITY
O*tb or Affirmation
340-11-110 [DEQ «(Temp), f. A ef. 3-22-74;
DEQ 72, f. 6-5-74, ef. 6-25-74;
Repealed by DEQ 78,
f. 9-6-74, ef. 9-25-74]
Right to Full and True Dtelomire of the Facts
340-11-115 [DEQ 69(Temp). f. & ef. 3-22-74;
DEQ 72, f. 6-5-74, ef. 6-25-74;
Repealed by DEQ 122,
f.Aef.9-!3-76]
Subpenai and Depositions
340-11-116 Subpenas.
(I) Upon a showing of good cause and general relevance
any party to a contested case shall be issued subpenas to
compel the attendance of witnesses and the production of
books, records and documents.
(2) Subpenas may be issued by:
(a) A hearing officer, or;
(b) A member of the Commission, or;
(c) An attorney of record of the party requesting the
subpena.
(3) Each subpena authorized by this section shall be
served personally upon the witness by the party or any person
over 18 years of age.
(4) Witnesses who are subpenaed, other than parties or
officers or employees of the Department or Commission, shall
receive the same fees and mileage as in civil actions in the
circuit court.
(5) The party requesting the subpena shall be responsible
for serving the subpena and tendering the fees and mileage to
the witness.
(6) A person present in a hearing room before a hearing
officer during the conduct of a contested case hearing may be
required, by order of the hearing officer, to testify in the same
manner as if he were in attendance before the hearing officer
upon a subpena. '
(7) Upon a showing of good cause a hearing officer or the
Chairman of the Commission may modify or withdraw a
subpena.
(8) Nothing in this section shall preclude informal
arrangements for the production of witnesses or documents, or
both.
Slat. Auth.: ORSCh. 183 & 468
HIM: DEQ 122, f. & ef. 9-13-76; DEQ 23-1979, f. & ef. 7-5-79
Conduct of Hearing
340-11-120 (IXa) Contested case hearings before the
Commission shall be held under the control of the chairman as
Presiding Officer, or any Commission member, or other person
designated by the Commission or Director to be Presiding
Officer.
(b) Contested case hearings before the Department shall
be held under the control of the Director as Presiding Officer
or other person designated by the Director to be Presiding
Officer.
(2) The Presiding Officer may schedule and hear any
preliminary matter, including a pre-hearing conference, and
shall schedule the hearing on the merits. Reasonable written
notice of the date, time, and place of such hearings and
conferences shall be given to all parties.
Except for good cause shown, failure of any party to
appear at a duly scheduled pre-hearing conference or the
hearing on the merits shall be presumed to be a waiver of right
to proceed any further, and, where applicable:
(a) A withdrawal of the answer;
(b) An admission of all the facts alleged in the notice o!
. opportunity for a hearing; and
(c) A consent to the entry of a default order and judgment
for the relief sought in the notice of opportunity for a hearing.
(3) At the discretion of the Presiding Officer, the hearing
shall be conducted in the following manner:
(a) Statement and evidence of the party with the burden of
coming forward with evidence in support of his proposed
action;
(b) Statement and evidence of defending party in support
of his alleged position;
(c) Rebuttal evidence, if any;
(d) Surrebuttal evidence, if any.
(4) Except for good cause shown, evidence shall not be
taken on any issue not raised in the notice and the answer.
(5) All testimony shall be taken upon oath or affirmation of
the witness from whom received. The officer presiding at the
hearing shall administer oaths of affirmations to witnesses.
(6) The followng persons shall have the right to question,
examine, or crossexamine any witness:
(a) The Presiding Officer;
(b) Where the hearing is conducted before the full
Commission, any member of the Commission;
(c) Counsel for the Commission or the Department;
(d) Where the Commission or the Department is not
represented by counsel, a person designated by the Commis-
sion or the Director;
(c) Any party to the contested case or such party's
counsel.
(7) The hearing may be continued with recesses as
determined by the Presiding Officer.
(S) The Presiding Officer may set reasonable time limits
for oral presentation and shall exclude or limit cumulative,
repetitious, or immaterial matter.
(9) The Presiding Officer shall, where appropriate and
practicable, receive ail physical and documentary evidence
presented by parties and witnesses. Exhibits shall be marked,
and the markings shall identify the person offering the exhibits.
The exhibits shall be preserved by the Department as part of
the record of the proceedings. Copies of all documents offered
in evidence shall be provided to all other parties, if not
previously supplied.
(10) A verbatim oral, written, or mechanical record shall
be made of all motions, evidentiary objections, rulings, and
testimony.
(11) Upon request of the Presiding Officer or upon a
party's own motion, a party may submit a pre-hearing brief, or
a post-hearing brief, or both.
Stai. Auth.: ORS Ch. 183 & 468
Hi*: DEQ 69fTemp). f. & ef. 3-22-74; DEQ 72. f. 6-5-74, ef.
6-25-74; DEQ 78. f. 9-«-74. ef. 9-25-74; DEQ 122, f. & ef
9-13-76
The Record
340-11-121 The Presiding Officer shall certify such part of
the record as defined by ORS 183.415(7) as may be necessary
for review of final orders and proposed final orders. The
Commission or Director may review tape recordings of
proceedings in lieu of a prepared transcript.
Stet. Auth.: ORS Ch. 183 & 468
Uta: DEQ 122, f. & ef. 9-13-76
Evidentiary Rules
340-11-125 (1) In applying the standard of admissibility of
evidence set forth in ORS 183.450, the Presiding Officer may
refuse to admit hearsay evidence inadmissible in the courts of
this state where he is satisfied that the declarant is reasonably
available to testify and the declarant's reported statement is
significant, but would not commonly be found reliable because
5-Div. 11(9-1-79)
76 ,
-------
OREGON ADMINISTRATIVE RULES
CHAPTER 340. DIVISION 11 - DEPARTMENT OF ENVIRONMENTAL QUALITY
340-11-130
of iu lack of corrobormtion in the record or its lack of clarity
md completeness.
(2) All offered evidence, not objected to, will be received
>y the Presiding Officer subject to his power to exclude or
imit cumulative, repetitious, irrevelent, or immaterial matter.
(3) Evidence objected to may be received by the Presiding
Officer with rulings on its admissibility or exclusion to be. made
it the time a final order is issued.
Stat.Autti.: ORSCh. 1*34448 -
Kbt: DEQ 69(Temp), f. A ef. 3-22-74; DEQ 72. f. 6-3-74 . ef.
6-25-74; DEQ 122. f. & ef. 9-13-76
(DEQ 69rdcr of the Commission unless within 30 days from the date of
nailing, or if not mailed then from the date of personal service.
iny of the parties or a member of the Commission files with
-he Commission and serves upon each party a Notice of
\ppeal. A proof of service thereof shall also be filed, but
uilure to file a proof of service shall not be a ground for
lisrhissal of the Notice of Appeal.
(b) The timely filing and service of a Notice of Appeal is a
urisdicu'onal requirement for the commencement of an appeal
o the Commission and cannot be waived; a Notice of Appeal
vhich is filed or served late shall not be considered and shall
tot affect the validity of the Hearing Officer's Final Order
vhich shall remain in full force and effect.
(c) The timely filing and service of a sufficient Notice of
\ppeal to the Commission shall automatically stay the effect
/the Hearing Officer's Final Order.
(3) Contents of Notice of Appeal. A Notice of Appeal shall
» in writing and need only state the party's or a Commission-
:r's intent that the Commission review the Hearing Officer's
Tlnal Order.
(4) Procedures on Appeal:
(a) Appellant's Exceptions and Brief - Within 30 days
r.>m the date of service or filing of his Notice of Appeal.
vhichever is later, the Appellant shall file with the Commission
md serve upon each other party written exceptions, brief and
>roof of service. Such exceptions shall specify those findings
vnd conclusions objected to and reasoning, and shall include
iroposed alternative findings of fact, conclusions of law, and
>rder with specific references to those portions to the record
jpon which the party relies. Matters not raised before the
tearing Officer shall not be considered except when necessary
o prevent manifest injustice. In any case where opposing
parties timely serve and file Notices of Appeal, the first to file
thai! be considered to be the appellant and the opposing party
he cross appellant.
(b; Appellee's Brief - Each party so served with excep-
ioni and brief shall then have 30 days from the date of service
>r filing, whichever is later, in which to file with the Commis-
sion and serve upon each other party an answering brief and
proof of service.
(c) Reply Brief - Except as provided in subsection (4Xd)
of this rule, each party served with an answering brief shall
have 20 days from the date of service or filing, whichever is
later, in which to file with the Commission and serve upon
each other party a reply brief and proof of sendee.
(d) Cross Appeals - Should any party entitled to file an
answering brief so elect, he may also cross appeal to the
Commission the Hearing Officer's Final Order by filing with
the Commission and serving upon each other party in addition
to an answering brief a Notice of Cross Appeal, exceptions
(described in subsection (4Xa) of this rule), a brief on cross
appeal and proof of service, all within the same time allowed
for an answering brief. The appellant-cross appellee shall then
have 30 days in which to serve and file his reply brief, cross
answering brief and proof of service. There shall be no cross
reply brief without leave of the Chairman or the Hearing
Officer.
(e) Briefing on Commission Invoked Review - Where one
or more members of the Commission commence an appeal to
the Commission pursuant to subsection (2Xa) of this rule, and
where no party to the case has timely served and filed a Notice
of Appeal, the Chairman shall promptly notify the parties of
the issue that the Commission desires the parties to brief and
the schedule for filing and serving briefs. The panics shall limit
their briefs to those issues. Where one or more members of the
Commission have commenced an appeal to the Commission
and a party has also timely commenced such a proceeding.
briefing shall follow the schedule set forth in subsections (a),
(b). (c), (d), and (f) of this section (4).
(f) Extensions - The Chairman or a Hearing Officer, upon
request, may extend any of the time limits contained in this
section (4). Each extension shall be made in writing and be
served upon each party. Any request for an extension may be
granted or denied in whole or in part.
(g) Failure to Prosecute - The Commission may dismiss
any appeal or cross appeal if the appellant or cross appellant
fails to timely file and serve any exceptions or brief required
by these rules.
(h) Oral Argument - Following the expiration of the time
allowed the parties to present exceptions and briefs, the
Chairman may at his discretion schedule the appeal for oral
argument before the Commission.
(i) Scope of Review - In an appeal to the Commission of a
Hearing Officer's Final Order, the Commission may. substi-
tute its judgment for that of the Hearing Officer in making any
particular finding of fact, conclusion of law, or order. As to
any finding of fact made by the Hearing Officer the Commis-
sion may make an identical finding without any further
consideration of the record.
(j) Additional Evidence - In an appeal to the Commission
of a Hearing Officer's Final Order the Commission may take
additional evidence. Requests to present additional evidence
shall be submitted by motion and shall be supported by a
statement specifying the reason for the failure to present it at
the hearing before the Hearing Officer. If the Commission
grants the motion, or so decides of its own motion, it may hear
the additional evidence itself or remand to a Hearing Officer
upon such conditions as it deems just.
SUt. Auth.: ORS Ch. 183 & 468
Hbt: DEQ 78, f. 9-6-74. ef. 9-23-74; DEQ 115, f. & ef. 7-6-76;
DEQ 25-1979. f. A ef. 7-5-79
Presiding Officer's Proposed Order in Hearing Before the
Department
340-11-133 [DEQ 78, f. 9-6-74, ef. 9-25-74;
Repealed by DEQ 122.
f.&ef. 9-13-76]
6-Div. 11(9-1-79)
77
-------
OREGON ADMINISTRATIVE RULES
CHAPTER 340, DIVISION 11 - DEPARTMENT OF ENVIRONMENTAL QUALITY
PreridJnt Officer's Propotwl Order la Hearing Before the
Department
340-11-134 (1) In a contested case before the Department,
the Director Hhall exercise powers and have duties in every
respect identical to those of the Commission in contested cases
before the Commission.
(2) Notwithstanding section (1) of this rule, the Commis-
sion may. as to any contested case over which it has final
administrative jurisdiction, upon motion of its Chairman or a
majority of its members, remove to the Commission any
contested case before the Department at any time during the
proceedings in a manner consistent with ORS Chapter 183.
SUI. Auth.: ORS Ch. 183 & 468
HIM: DEQ 122. f. A ef. 9-13-76
Final Orders In Contested Caw* Notification
344M1-135 (1) Final orders in contested cases shall be in
writing or stated in the record, and may be accompanied by an
opinion.
(2) Final orders shall include the following:
(a) Rulings on admissibility of offered evidence if not
already in the record;
(b) Findings of fact, including those matters which are
agreed as fact, a concise statement of the underlying facts
supporting the findings as to each contested issue of fact and
each ultimate fact, required to support the Commission's or the
Department's order;
(c) Conclusions of law;
(d) "Die Commission's or the Department's order.
(3) The Department shall serve a copy of the final order
upon every party or. if applicable, his attorney of record.
Sue. Auth.: ORS Ch. 183 A 468
HI*: DEQ Wrremp). f. & ef. 3-22-74; DEQ 72. f. 6-3-74. ef.
6-23-74
Powers of the Director
340-11-136 (1) Except as provided by rule 34O-12-075. the
Director, on behalf of th« Commission, may execute any
written order which has been consented to in writing by the
parties adversely affected thereby.
(2) The Director, on behalf of the Commission, may
prepare and execute written orders implementing any action
taken by the Commission on any matter.
(3) The Director, on behalf of the Commission, may
prepare and execute orders upon default where:
(a) The adversely affected panics have been properly
notified of the time and manner in which to request a hearing
and have failed to file a proper, timely request for a hearing; or
(b) Having requested a hearing, the adversely affected
party has failed to appear at the hearing or at any duly
scheduled preheating conference.
(4) Default orders based upon failure to appear shall issue
only upon the making of a prima facie case on the record.
Stal. Audi.: ORS Ch. 183 A 468
Hist: DEQ 122. f. A ef. 9-13-76
Miscellaneous Provisions
340-11-140 OAR Chapter 340, rules 340-11010 to 340-11-
140, as amended and adopted June 25, 1976. shall take effect
upon prompt filing with the Secretary of State. They shall
govern all further administrative proceedings then pending
before the Commission or Department except to the extent
that, in the opinion of the Presiding Officer, their application in
a particular action would not be feasible or would work an
injustice, in which event, the procedure in former rules
designated by the Presiding Officer shall apply.
Sut. Auth.: ORS Ch. 183 A 468
Hbt: DEQ 122, f. A ef. 9-13-76
7-Div. 11(9-1-79)
78
-------
PENNSYLVANIA
Pennsylvania has three distinct "administrative" fines programs:
magistrate-issued penalties for "summary offenses", penalties contained in
consent agreements, and civil penalties issued by the Environmental Hearings
Board. The magistrate-issued penalties are not, strictly speaking,
"administrative" fines since they are issued by a lower level judicial
official, a magistrate. These penalties are described here, however, because
they serve much the same function as the small fines programs of other
agencies, and many of their features could be duplicated using administrative,
rather than judicial, imposition. All three programs are administered by the
Pennsylvania Department of Environmental Resources. Although agency officials
have considerable discretion in deciding what type of penalty to assess (if
any), magistrate citations tend to be used for violations that can be resolved
quickly, and civil penalties tend to be used only as last resort.
Magistrate Citations and Letter Agreements
Magistrate citations are used when companies are convicted of unlawful
conduct, which the Pennsylvania statute-* defines as:
". . . to fail to comply with any rule or regulation of the board
or to fail to comply with any order of the department, to violate or to
assist in the violation of any of the provisions of this act or rules and
regulations adopted hereunder, to cause air pollution, or to in any
manner hinder, obstruct, delay, resist, prevent, or in any way interfere
or attempt to interfere with the department or its personnel in the
performance of any duty hereunder."
According to Pennsylvania officials, magistrate citations are typically
used for violations that can be detected immediately and resolved quickly such
as open burning, opacity, and odor violations. When an inspector detects a
violation, he files immediately with a magistrate who then issues the fine.
Pennsylvania law limits the fine to between $100 and $1000. Enforcement
records provided by Pennsylvania officials indicate that the state issued 28
magistrate citations in 1981, collecting $5500 in penalties. Only two fines
exceeded $500, while most ranged from $100 to $200.
Sometimes, the Department uses "Letter Agreements" to handle summary
offenses. These agreements are used when the company is aware that a
violation has been discovered and is willing to acknowledge guilt in order to
avoid a criminal complaint. The Attorney General has the authority to sign
the letter as the State's representative. The company, which cosigns the
letter, agrees to a compliance schedule and also agrees to pay a penalty that
is the equivalent of the penalty imposed with a magistrate citation. In the
first quarter of 1981, the agency collected over $80,000 from 13 letter
agreements, including one for over $67,000.
79
-------
Consent Order Penalties
Pennsylvania prefers to use consent orders to handle most violations that
cannot be resolved immediately, including such continuing compliance
violations as poor operating and maintenance procedures. Since only the
Environmental Hearing Board and Commonwealth Court actually have the authority
to assess fines, agency officials must negotiate with violators over both the
compliance schedule and the penalty provisions contained in the consent
order. In the first quarter of 1981, Pennsylvania collected over $200,000
from approximately 30 consent orders or agreements.
Officials use three different types of penalties in consent agreements:
• lump-sum settlements or penalties are used when the agreement covers
past violations;
• on-going penalties—usually a monthly fine—are used if the
violation still exists. These penalties continue until the source
achieves compliance; and
• end-date penalties which go into effect if the source fails to
comply by the date stipulated in the agreement.
If the facility intends to achieve compliance by shutting down some or all of
its operations, the state often asks the owner to post a performance bond to
ensure that the shutdown occurs on schedule.
Civil Penalties
Civil penalties are usually reserved for recalcitrant sources or
situations when a company refuses to negotiate a consent agreement. In these
cases, the Agency goes before the Environmental Hearing Board to document the
violations and asks the Board to set the penalty it feels is appropriate. If
a company disagrees with the Board's decision it can appeal to Commonwealth
Court but must have some legal grounds on which to base its appeal.
In 1981, the Environmental Hearing Board assessed three civil penalties
for air pollution violations totalling $265,000. These revenues were
deposited into a special fund known as the "Clean Air Fund" that is used by
the Department to support its air pollution and other environmental programs.
Program Effectiveness
The Pennsylvania official felt that his state's multi-faceted penalties
program "affords the agency the kind of coverage it needs to handle any
violation." The agency is considering developing policy guidance—"not rigid
penalty schedules"—to assist officials in determining the appropriate fine
for each violation, however.
80
-------
References
1. Malin, Morris S. Pennsylvania Department of Natural Resources.
Telephone Conversations with Lisa Baci, GCA/Technology Division, January
14, 18, 1982.
'L. Malin, Morris S. Pennsylvania Department of Natural Resources. Written
Communication with Lisa Baci, GCA/Technology Division, January 26, 1982.
3. Air Pollution Control Act, Title 35, Chapter 23 - Air Pollution, Sections
4008: Unlawful Conduct, 4009: Penalties.
81
-------
ATTACHMENT 1: Air Pollution Control Act, Title 35,
Chapter 23 - Air Pollution, Section 4009, Penalties.
83
-------
PENNSYLVANIA AIR POLLUTION ACT
S-495
491:0105
one region, publu heatings shall he held in the aiea
concerned, hull stcimgiaphic ii.msv.npts shall he laki n ol
all public hearings and shall he made available by the
depaiimenl to any parly lonccincd with Ihe subject
mailer of the hearing upon Ihe payment ol picvatlmg
tales for such transcripts
(b) In addition to the malieis dr.iusscd .it ihe public
hearing., Ihe boaid may. m its disciclmn, sohcii ihe
views, in writing, ol petsons who may be allcilcd In, 01
inleresicd in. proposed ndes anil regulations
(c) Nolire to the public ol the lime and place ol .my
public hearing shall he given at least ihuly ( tO) days pnoi
lo the scheduled dale ol Ihe heating by public advctlisc-
ment in a ncwipapci 01 newsp.tpeis ol genetal ciiculaiion
in the region ol the Commonwealth allected
(d) The peisous design.tied lo conduct Ihe heating shall
have the powet to issue nntues <>l heatings in Ihe name
of the boaid.
(e) l-ull oppoilumly lo be heatd with ie-,|)ect to the
suhjei I ot the lieanng shall be given lo all peisons m
attendance, in .iddilmu lo winch peisons \\lu-ihet «i not
in ailendance, may, within Unity ( <()) da\s -aibim! then
Views to the depaiimenl. which the di pai inieni shall
liansmil to the bo.ml with Us icpoil
§4008. Unlawful Conduct. - It shall he unlawlul lo
fail to comply with any iide 01 icgulaiion ol ihe hoaul 01
to fail to comply with any onlci ol the dcpailmcnt, lo
violate or to assist in the violation ol any ol the
provisions of this ail "i tule. and tegul.tiions adopted
hetcunder, l» iausi- ait pollution, 01 to m .my in.nmei
hinder, ohsliucl, delay, ic-.isi, picveni 01 m anv way
llllrifeie 01 alleinpl l<> mleilete with llu dep.niineiii 01
its personnel in Ihc peilonnance ol anv duty hciemidei
§40W. Penalties. -- (a) Summary Ollensc Any person
is hen-in defined, exiept a depaiimenl. hoaid. dun au m
agency of the Common wealth, engaging m unlawlul ion-
duct as set Until m set lion X of this ail, shall, loi each
olfense, upon conviitton tlieieol in a summais pioceedmg
before a district jiislice, magisiiate, aldeiinaii 01 juslue ol
lite peace, be sentenced lo |>.iy the costs ol piosei uiion
and a line ol not levs than one hundted doll,us (SKMI.OO)
tun more than one thousand dollats (S I ,l»0i) 00), and. m
default thereof, to undeigo imprisonment ol not less than
ten (10) days not mme than thirty ( W) days.
(b) Misdemeanors. Any person as heiem defined,
except a department, hoard, bureau 01 agency ot the
Commonwealth, who, within two years atlei being con-
victed of a suminatv offense pursuant to subsection (a) ol
this section, engages in similar unlawlul conduct, shall be
guilty of a misdemeanot and, upon conviction Iheteol,
shall, lor each scpatate offense, be subjei I lo a fine of
not less than five bundled doll.ii> (SM)O(IO) not more
than five thousand dollats (S.S.OOO.OO), 01 to tmpiison-
menl lot a period o| noi mme than one ve.n loi i-.tch
Kpaiate otlcnse hcieunder, ot both |-oi the pmpose ot
this subsection, simtl.it unlawlul conduit shall mean a
violation of thr same older ol the depat linetil. m a
violation of the same piovision ol any title 01 icgulaiion
ol the department by the same oigani/ation.il utttl ol the
defendant.
(c) 1'or (he put pose of this snlmii. viol.itioi on
separate days shall be considered sep.naie ol lenses V -ere
84
a peisou engages in continuing unlawlul conduct, smh
peison ^hall lw guilty ot' separate offenses loi each da\
such conduct continues up until the time of hcanng ot
i nal
(d) I pon conviction of an association, partnership 01
101 pot a i ion of an offense under subsection (a) or (b) ol
ihis sciiion. the responsible members, office is, employes
or agents may be imprisoned for the term provided
therein which shall run concurrently with any term ot
imprisonment imposed upon such persons individually
upon conviction for thf same offense.
§400*M. Civil Penaltto. — In addition to proceeding
under any other remedy available at law. or in equity. lot
a violation of a piovision of this act. or a rule 01
regulation of the hoard, or an order ol the depaitment,
the he.iiing board, after hearing, may assess a civil penally
upon a person for such violation. Such a penally may be
assessed whether 01 not the violation was wilful. The civil
penalty so assessed shall not exceed ten thousand doll.ns
(S!().()(i(i.OO), plus up to two thousand live bundled
dollais (fi2.500.00) for each day of continued violation
In deirmiinmg the amount of the civil penally, ihe
heaimg hoaid shall considei the wilfulness ol the vio
lalion, damage or injury to the outdoor atmospheie ol
the Commonwealth or its uses, and other lelevant l.niois
It shall lie payable lo the Commonwealth ol Pennsylvania
and shall he collectible in any manner provided at law loi
the collection of debt. It any person liable lo pay any
such penalty neglects or refuses to pay the same at let
demand, the amount, together with interest and any costs
that ma\ accrue, shall be a lien in favor ol the Common-
wealth upon the property, both red and peisonal. ol such
peison, hut only aftei same has been entered and
docketed ol record by the prolhonotaiy of the county
when- >.uch is situated. The hearing hoaid may. at any
time, liansmil to the prothonotaries ol the respective
lounlics certified copies of all such liens, and it shall be
die iluiv ol each prolhonotary lo entei anil docket the
same ol record in his office, and to index the same as
judgments are indexed, without requiring the payment ot
iosis as a condition precedent to the entry thereof.
§4009.2. Disposition of Fines and Civil
Penalties. All lines, civil penalties and lees collected
undei this act shall be paid into the Tieasury of the
Commonwealth in a special fund known as the "Clean An
I und," hereby established, which shall be administered by
the department for use in the elimination of air pollution
The hoard shall adopt rules and regulations lor, the
management and use of the money in the fund.
§4010. Civil Remedies. — (a) The Attorney Gen-
eial, at the lequest of Ihe department, may initiate, by
petition, in the Commonwealth Court or the court ol
lommoii pleas of Ihc county in which the defendant
icsides 01 has its jilace of business, an action for the
enfoiceinent of any order issued pursuant to this act by
the depaitment from which no timely appeal has been
taken on which has been sustained on appeal. The court,
m such proceeding, shall have the power to grant such
lempoi.uy relief as it deems just and proper and if, alter
hearing, the court finds that such order has not been lully
complied with, the court shall enforce such order by
4-18-80
i it lii 'Ml limit All DI NATIONS
AIRS IMC WASHINGTON DC 20037
35
-------
PUGET SOUND
The Puget Sound Air Pollution Control Agency (PSAPCA) first promulgated
air pollution regulations in 1968. One of nine Washington State air pollution
control agencies, the PSAPCA is one of the most active users of administrative
fines in the country. Although penalties are limited to $250 by the
Washington Clean Air Act, the agency collects between $80,000 and $90,000
annually by issuing nearly 500 penalties.
Penalty Procedure
The Puget Sound Air Pollution Control Agency has a number of options to
enforce its air pollution regulations: (1) negotiate voluntary compliance,
(2) issue a warning letter, (3) issue a notice of violation (NOV), (4) issue
an administrative order, (5) assess an administrative fine, and (6) seek
criminal penalties. Usually, warnings are issued only to individuals or small
concerns that violate the open burning regulations. All other sources receive
either a notice of violation or a fine. According to the Puget Sound Case
Study,^ PSAPCA will always issue fines unless the inspector failed to gather
sufficient evidence, or the violation was either minor or unavoidable and the
source has a good record. Although inspectors can issue NOV's on the spot,
administrative fines must be approved by superiors.
Review Process
When PSAPCA assesses a fine for a violation, the source has 30 days to
either appeal the decision or pay the fine. Appeals are heard by the
Pollution Control Hearing Board (PCHB), a three member group (one must be an
attorney) appointed by the Governor of Washington and confirmed by the
Senate. The Board has the authority to approve, mitigate or overturn fines
assessed by the PSAPCA. In this process, lawyers from each party present
supporting evidence to prove their case. If the violator does not appeal the
PSAPCA1a decision and does not pay the fine, the agency can obtain a summary
judgment Crom county superior court ordering the source to pay.
Finally, the violator can appeal any decision by the Pollution Control
Hearing Board to Superior Court. This appellate procedure is seldom used:
less than 20 percent of the 500 penalties assessed annually reach the PCHB; of
these 100 cases heard, approximately 10 percent will end up in Superior
Court. Usually penalties are collected within 60 days of identification of a
violation, although a few require years.
Program Effectiveness
The Puget Sound Air Pollution Control Agency considers administrative
penalties to be a very important and useful enforcement mechanism. Most of
the agency's enforcement actions are in the form of civil penalties. Revenues
collected from fines ($80,000 - $90,000 annually) are used by the agency to
help defray its legal expenses but do not cover all of these costs.
85
-------
References
1. Farrell, S. 0., and M. S. Jensen. An Institutional Assessment of the
Clean Act, Puget Sound Case Study. Prepared for the National Commission
on Air Quality, Washington, D.C., March 1981.
2. Tworaey, H. Puget Sound Air Pollution Control Agency. Written
Communication with Andrew Bagley, GCA/Technology Division, January 1982.
3. Washington Clean Air Act, Chapter 70.94 RCW, Section 70-94-431.
4. General Regulations for Air Pollution Sources. Chapter 173-400 WAG,
Sections 173-400-130, 140.
5. Environmental Hearings Office - Pollution Control Hearings Board of the
State. Chapter 43-21B RCW.
6. Practice and Procedure. Chapter 371-08 WAG.
86
-------
ATTACHMENT 1: PSAPCA Organization Chart and
Enforcement Activity
87
-------
Puget Sound Air Pollution Control Authority Organization Chart
August 1979
BOARD OF DIRECTORS
AIR POLLUTION CONTROL OFFICER
ADVISORY COUNCIL
ADMINISTRATION
TECH. SERVICE DIVISION
CENTRAL SERVICES
ENFORCEMENT DIVISION
1
ENGINEERING DIVISION
FIELD OPERATIONS &
INSTRUMENT MAINTENANCE
AIR QUALITY 6 METEOROLOGY
DATA ANALYSIS & PROCESSING
SEATTLE OFFICE
(King and Snobomish Counties)
TACOMA OFFICE
(Kitsap and Pierce Counties)
LABORATORY ANALYSIS &
INSTRUMENT CALIBRATION
Source: Puget Sound Case Study.
88
-------
PSAPCA ENFORCEMENT ACTIVITY
YEAR
1977
1978
1979
ACTIVITY
Notices of Violations
914
800
873
Civil Penalties
Levied
520
441
481
Paid
452
411
439
Pending
182
182
180
Source: Puget Sound Case Study.
89
-------
ATTACHMENT 2: Washington Clean Air Act,
Chapter 70.94 RCW, Section 70-94-431.
91
-------
M1:0114
STATE AIR LAWS
dinancet, resolutions, or rules and regulations of sucli
authority which are not less stringent than those re-
Quircrnenti which the state hoard may h:ivc found
applicable to the area under RCW 70.94.33! until such
time an the board adopts its own rules and regulations.
Any rules and regulations promulgated and any enforce-
ment action, as provided in RC'W 70.94.3.11, taken by the
state board shall be subject to the provisions of chapter
3.04 RCW as it now appears or may hereinafter be
amended and subject to RCW 70.94.425 and 70.94.435 to
the extent that they arc not inconsistent with chapter
34.04 RCW.
(2) No provision of this chapter is intended tn piohihn
any authority from reestablishing its air pollution control
program which meets with the approval of the stale
board and which complies with the put poses ol this
chapter and with applicable rules and regulations aiul
orders of the state bo.ud
(3) Nothing in this chapter shall prevent the stale
board from withdrawing the exercise ol its jurisdiction
over an authority upon its own motion. PrcvideJ. That
the state board has found at a hearing held in accordance
with chapter 42 *2 RC W and chapter 34 04 RC Wasn..*
or hereafter amended, that the air pollution pievcnlion
and control program ol such authority will he carried out
in good faith or thut such program will do all that is
possible and reasonable to control and/or pi event an
pollution within the geographical area over which it has
jurisdiction. Upon the withdrawal of the state board, the
state board shall prescribe certain recommendations as
to how air pollution prevention and/or control is to In-
effectively accomplished and guidelines which will assist
the authority in carrying out the recommendations of tin-
state board.
70.94.420 Cooperation bvxtatedepariment\
pollution of the air in such area Such state department
or agency shall comply with the piovisionsnl tins < li UMCI
und with any or.liname, icsoliilion, rule or lej-.il.iiMii
issued hcreundci in the same manner as any otliei peison
subject to such laws, lules and regulations.
(2) In addition to its other powers and duties present)
ed by law, the slate board may establish i lasses o| poten-
tial pollution sources for which any stale dcpaitmcnt 01
agency having jurisdiction over any building, installation,
or other property, which is not located within tin-
geographical boundaries of any authority which has .in
air pollution control urnl/or prevention program m
effect, shall before discharging any matter into the air.
obtain a permit from the state board for such discharge,
such permits to be issued for a specified period of time
to be determined by the state board and subject to re-
vocation if the state board finds tha1. such discharge is
endangering the health and welfare of any persons. Such
permits may also be required for any such building.
installation, or other property which is located within the
geographical boundaries of any authority which has an
air pollution control and prevention program in effect if
the standards set by the state board for state depart
ments and agencies are more stringent than those of the
authority. In connection with the issuance of any permits
under this section, there shall be submitted to the state
board such plans, specifications, and other information
as it deems relevant thereto and under such other con-
ditions as it may prescribe.
70.94.4.1*) Restraining orders — Injunctions
Notwithstanding the existence or use of any other
remedy, whenever any person has engaged in, or is about
to engage in, any acts or practices which constitute or will
constitute a violation of any provision of this chapter, or
any rule, regulation or order issued thereunder, the
governing l-ody or board or the state board, after notice
to such person and an opportunity to comply, may peti-
tion the superior court of the county wherein the viola-
lion is alleged to be occurring or to have occurred for a
restraining order or a temporary or permanent injunction
or another appropriate order.
70 94.430 Penalties. Any person who violates any of
the provisions of this chapter, or any ordinance, resolu-
tion, rule M regulation in force pursuant thereto, other
than RCW 70.94.205. shall be guilty of a misdemeanor
und upon conviction thereof shall be punished by a fine of
not more tlian two hundred fifty dollars, or by imprison-
ment for not more than ninety days, or by both fine and
imprisonment for each separate violation. Each day upon
which such violation occurs shall constitute a separate
violation.
Any person who willfully violates any of the provisions
ol this chapter or any ordinance, resolution, rule or
regulation in force pursuant thereto shall be guilty of a
gross misdemeanor. F-ach day upon which such wilful
violation occurs shall constitute a separate offense. Upon
com iction the offender shall be punished by a fine of not
less ihan one hundred dollars for each offense.
Ai.y person who wilfully violates RCW 70.94.205 or
.inv other provision of this act shall be guilty of a gross
misdcincai! >r and upon conviction thereof shall be
punt .lied \i\ .1 fine of not less than one hundred dollars
nor more than one thousand dollars, or by imprisonment
for a term ot not more than one year or by both fine and
impiisonmcnt.
7094.431 Additional or alternative penally — En-
fownent. In addition to or as an alternate to any other
penalty provided by law, any person who violates any of
the provisions of chapter 70.94 RCW or any of the rules
and regulat ions of the department or the board shall in-
cur a penalty in the form of a fine in an amount not to ex-
ceed two hundred fifty dollars per day for each violation.
100
92
-------
WASHINGTON AIR ACT
S-499
541:0115
Fach such violation shall be a separate and distinct
offense, and in case of a continuing violation, each day's
continuance shall be a separate and distinct violation.
Each act of commission or omission which procures,
aidi or abets in the violation shall be considered a viola-
tion under the provisions of this section and subject to ibe
name penalty The penally sh.ill become due and payable
when the person incurring the same receives a notice m
writing from the director or his designee or the control
officer of the authority or his designee describing the
violation with reasonable particularity and advising such
person that the penally is due unless a request is made
for a hearing to the hearings board .i,s provided lot in
••liapler 41.2IB R( W When a request is nude I-i a
hearing, (he penalty shall become due ami payable onlv
upon completion of all review pjoceedinj-s and ihc
issuance ol a final order affirming the penally in whole or
pail II ihc amount of such penalty is not paid to the
department or Ihc board within thirty days alter it
becomes due and payable, and a request lot a hearing has
not been made, the attorney general, upon the request ol
the director or his designee, or the attorney for the local
authority, upon request of the boaid or control officer,
shall bring an action to recover such penalty in the
superior court of (he county in which the violation oc-
curred. All penalties recovered under this section by ihe
state board shall be paid into the state treasury and
credited to the general fund or. if recovered by the
authority, shall be paid into the treasury of the authority
and credited to its funds.
To secure the penally incurred under this section, the
state or the authority shall have a lien on any vessel used
or operated in violation of this chapter winch shall be en-
forced as provided in RC W 60.36.050.
In all actions brought in the superior court for the
recovery of penalties hcreunder, the procedure and rules
of evidence shall be the same as in an oidmaiv civil ac
lion. •• •
7U.V4 435 Additional nn->rn'nn'tit »i
cfniftt-r As an additional meaiv. of enforcing ihix
chapter, the governing body or buaid may .inept an
assurance of discontinuance of an) act or prauirc deem
wl in violation ol till'- chapter 01 ol any oidinancc. resolu-
tion, lule or legulatHin adopted |>msuanl heiet«, limn
an\ person engaging in, 01 who has engaged in. such ait
or pi,ic lice. Any sui !i a.'.in a me shall spa if\ ,i lime bimi
during which sucii discontinuance is to be a'.i'umplislieil
I ailurc to pcrl'oim the terms ol an) such assurance shall
constitute prirna );uie proof ol a violation of this chapter
or the ordinances, resolutions, rules or regulations, or
order issued pursuant thereto, which make the alleged act
or practice unlawful lor the purpose of securing any in-
junction or other relief Irom the superior court as provid-
ed in ROW 70.94.425
70.94.440 Short title This chapter may be known and
cited as the "Washington (lean Air Act."
70.94.445 Air pollution control facilities - lu\ t-\-
emptionx and credit \ See chapter 82 34 K( W.
70.94.510 Policy to cooperate with federal govern-
ment. It is declared to be the policy of the state of
Washington through the state air pollution control board
to cooperate with the federal government in order to in-
sure the coordination of the provisions of the federal and
state clean air acts, and the state air pollution control
board is authorized and directed to implement and en-
force the provisions of this chapter in carrying out this
policy as follows:
(I) To accept and administer grants from the federal
government for carrying out the provisons of this
chapter.
(2) To take all action necessary to secure to the state
the benefits of the federal clean air act.
70.94. <>00 Reports of authorities to stale board — Con-
All authorities in the state shall submit quarterly
reports to the department of ecology detailing the cur-
rent status of air pollution control regulations in the
auihority and, by county, the progress made toward
bringing all sources in the authority into compliance
with authority standards.
70.94.650 Burning permits for weed abatement, in-
struction or agriculture activities — Issuance — Ac-
tivities exempted from requirement. Any person who
proposes to set fires in the course of the following:
(1) Weed abatement,
(2) Instruction in methods of fire fighting (except
foiest fires), or
(3) Disease prevention relating to agricultural ac-
tivities, shall, prior to carrying out the same, obtain a
permit from an air pollution control authority or the
department of ecology, as appropriate. Each such
authorit) and the department of ecology shall, by rule or
ordinance, establish a permit system to curry out the
provisions of this section except as provided in RCW,
70 94.661) General criteria of statewide applicability for
ruling on such permits shall be established by the depart-
ment, In rule or regulation, after consultation with the
various .nr pollution control authorities. Permits shall be
issued uiiiler this section based on seasonal operations or
bv individual operations, or both: Provided, That all per-
mits so issued shall be conditioned to insure that the
public interest in air, water, and land pollution und safety
to life an.I property is fully considered. In addition to any
other requirements established by the department to
ptotect air quality pursuant to other laws, applicants for
permits must show that the setting of fires as requested in
the most reasonable procedure to follow in safeguarding
life or property under all circumstances or is otherwise
reasonably necessary to successfully carry out the enter-
prise the applicant is engaged in. All burning permits will
be designed to minimize air pollution insofar as practical.
Nothing m this section shall relieve the applicant from
obtaining permits, licenses or other approvals required
by any other law: Provided further. That an application
foi a permit to set fires in the course of agricultural burn-
ing for controlling diseases, insect*, and development of
MftBO
lJul.liKh«-d t.y THK BURKAU (>!• NA'llul
93
,|.-KAIP« INC., WASHINGTON. D.C. 20037
101
-------
ATTACHMENT 3: General Regulations for Air
Pollution Sources, Chapter 173-400 WAG, Sections
173-400-130, 140.
95
-------
WASHINGTON AIR POLLUTION REGULATIONS
S-SI.S
641:0589
o
WAC 173-400-130 REGULATORY ACTIONS 1 he
department may take uny of the following regulatory ;tc-
tioni to enforce this chapter (I) Notice of viol.iiuin
Whenever the department has reason to believe that any
provision of this chapter has been violated, it may cause
written notice to be served on the alleged violator or
violator*. The notice shall specify the provision ol this
chapter alleged to be violated and the facts alleged to
constitute a violation thereof, and may include an order
thai nece««ary corrective action be taken within a
reasonable time.
(2) Civil penalty Whenever any person violates any of
the proviiioni of this chapter, he shall be subject to a
penalty in the form of a fine in an amount not to exceed
two hundred and fifty dollars per day lor each violation
I ,ich such violation sliall be separate and distinct and.
in case of a continuing violation, each dny's continuance
shall be a separate and distinct violation Flic penalty
shall be imposed by a notice in writing from the director,
or his authon/ed representative, describing the violation
with reasonable particularity.
(3) Assurance of discontinuance. The director, or his
authorized representative, may accept an assurance of
discontinuance of any act or practice deemed in violation
of this chapter. Any such assurance shall specify a lime
limit during which discontinuance is to be accomplished
Failure to perform the terms of any such assurance shall
commute prima facie proof of a violation of this chapter
which make* the alleged actor practice unlawful for the
purpose of securing an injunction or other relief from the
nuperior court.
(4) Restraining orders, injunctions Whenever an\ per-
son had engaged in. or is about to engage in, any ,iu^ 01
practices which constitute or will constitute a violation
of any provision ol this chapter, the director, after notice
to such person and an opportunity to comply, ma> ;vti-
lion the superior court of the county wherein the viohtion
is alleged-to be occurring or to have occurred for a
restraining order or a temporary 01 permanent injunc-
tion or another appropriate order.
(*>) f-mergency episodes The department may i>sue
such orders us authon/ed by chiipler 194, Laws of 19"*!.
ex scis , whenever an air pollution episode r, forecast
H'l( I7I-4IHI 1 M ( KIMIN \l I'l N Mills IVi
sons in violation ol tins i lupin may be sulked i» 'he
provisions of R< W 70'M 110
H'-IC I7.1-400-I40 AIM'I AIS Decisions and or.leis
of the department may be appealed to the pollution LOII-
trol hearings board pursuant to chapter 4.1 21 B RC W
and chapter 371-08 WAC
WAC I7J-400-I50 VARIANCE Any person who
owns or it in control of a plant, building, structure, es-
tablishment, process, or equipment may apply to the
department for a variance from provisions of this chapter
governing the quality, nature, duration, or extent of dis-
charges of air contaminants in accordance with the
proviiioni of RCW 70.94.181
(1) Sources in any area over which a local air pollution
i. mirol agency has jurisdiction shall make application to
the boa id of that agency rather than the department The
department or board may grant such variance, but only
after public hearing or due notice.
(2) Variances granted by a local agency board for
sources under their jurisdiction will be accepted as vari-
ances to this regulation.
(3) No variance or renewal shall be construed to set
aside 01 delay any requirements of the federal clean air
act except with the approval and written concurrence of
the federal environmental protection agency.
tt l( 17J-40 MAINTENANCE Ol PAY Any
source which uses a supplemental or intermittent con-
trol system for the purpose of meeting the requirements
of section 123, section Il3(d), or section 119 of the
clean air act, as amended, shall not temporarily reduce
the pay of any employee because of the use of the supple-
mental or intermittent or other dispersion-dependent
control systems.
WA(. 173-400-170 REQUIREMENTS FOR
HOARDS AND DIRECTOR. (1) A majority of the
inembeis of any local air pollution control authority
board shall represent the public interest. A majority of
(lie members of such boards, and the director, shall not
derive any significant portion of their respective incomes
liom persons subject to permits or enforcement orders
pursuant to the state and federal clean air acts. An elect-
ed public official and the director shall be presumed to
icprescut the public interest. In the event that a director
derive.-, i significant portion of his income from persons
subject to permits or enforcement orders, he shall
delegak stile responsibility for administration of any part
of the program which involves these persons to the
deputy director or an assistant director, a.s appropriate
(2) I ,ich member of any local board and the director
sliall adequately disclose any potential conflict of interest
in any matter prior to any action or consideration there-
on, and the member or director shall remove himself
Irom participation as a board member in any action or
xoting on such matter.
O) I or the purposes of this section, "significant por-
iion ol income" shall mean twenty percent of gross per-
sonal income for a calendar year. In the case of a retired
person, "significant portion of income" shall mean fifty
perceni of income in the form of pension or retirement
benefits from a single source other than social security.
Income derived from employment with local or state
government shall not be considered in the determination
i>f "significant portion of income."
Chapter 173-405
Kraft Pulping Mills
(Adopted December 28, 1976; amended
through March 20, 1980)
96
9-5-80
by THE BUfUAU Of NATIONAL AFFAIRS INC WASHINGTON. DC 20037
161
-------
ATTACHMENT 4: Environmental Hearings Office -
Pollution Control Hearings Board of the State,
Chapter 43.21B RCW
97
-------
Chapter 43.21 B RCW
ENVIRONMENTAL HEARINGS OFFICE POLLUTION
CONTROL HEARINGS BOARD OF THE STATE
Sections
4j.2IB.005 Environmental hearings office created Composi-
tion Chief executive officer Staff support.
43.2IB.010 Pollution control hearings board created Purpose.
43 21 B.020 Member*- Qualification* Appointment.
43.2IB.030 Members Terms Filling vacancies, term.
43 21B 040 Removal of member, procedure As disqualifica-
tion for reappointment.
43 218.0)0 Governor to determine basis for operation Com-
pensation if part time basis, limitation Reim-
bursement of travel expenses.
43 218 060 Restrictions upon conduct while member and upon
termination of membership.
43.2IB080 Chairman, biennial election of.
43 2IB.090 Principal office Quorum Hearings by one or
more members- Hearing examiners Board
powers and duties.
43 2IB 100 Board to make findings of fact and written decisions
on each case considered Effective upon signing
and filing Public information.
43 21B 110 Board jurisdiction——-Issuance, modification, termi-
nation of permits, licenses, as order Application
of administrative procedure act.
43 21 B. 120 Board hearing authority exclusive Exception
Others' orders final unless appeal to board.
43 21 B.I 30 Administrative procedure act to apply to appeal of
board rules and regulations Scope of board ac-
tion on decisions and orders of others.
43 21 B.I40 Formal or informal hearing, election of party taking
appeal Exception.
43.2IB ISO Informal hearings, board or hearing examiners' pow-
ers Staff assistance, limitation.
43 218.160 Formal hearings, board or hearing examiners' pow-
ers- Staff assistance, limitation.
43 2IB.HO Proceedings conducted in accordance with published
board rules and regulations
43 2IB.I80 judicial review Director's right of review of deci-
sions pursuant to RCW 43.21 B.I 10.
41 218.190 Judicial review Appeal from board's order
Procedure —When bonds required.
41 21B 200 Judicial review Appeals to court of appeals pur-
luant to RCW 34.04.130(6) Procedure
When bonds required.
43.21B 220 Slaying of orders or decisions pending final determi-
nation!, existing law prevails.
4)218230 Appeal from notices of denial or determination or or-
der, procedure — Formal or informal hearing,
when
43 21 B.240 Public hearings of department under administrative
procedure act limited
43 ?l B 250 Challenges lo consistency of rules adopted pursuant
to RCW 43 2IC.110 and 43.2IC.I20 Proce-
dure Finality.
43 218 260 Regulations and amendments of activated air pollu-
tion control authorities Filing with hearings
board authorized Evidence
43 218.900 Savings Other powers and duties not af-
fected Permits, standards not affected Sev-
erability— Effective date 1970 basic act.
RCW 43.218.005 Environmental hearings office cre-
ated Composition Chief executive officer
Staff support. There is created an environmental hear-
ings office of the state of Washington. The environmen-
tal hearings office shall consist of the pollution control
hearings board created in RCW 43.21B.010, the forest
practices appeals board created in RCW 76.09.210, and
the shorelines hearings board created in RCW 90.58-
.170. The chairman of the pollution control hearings
board shall be the chief executive officer of the environ-
mental hearings office. Membership, powers, functions,
and duties of the pollution control hearings board, the
forest practices appeals board, and the shorelines hear-
ings board shall be as provided by law.
The chief executive officer of the environmental hear-
ings office may appoint, discharge, and fix the compen-
sation of such staff as may be necessary or may contract
for required services. Employees of the environmental
hearings office shall serve each board at the direction of
the chief executive officer of the environmental hearings
office. [1979 1st ex.s. c 47 § 2.]
Intent 1979 lal *x.s. c 47: "It is the intent of the legislature to
consolidate administratively the pollution control hearings board, the
forest practices appeals board, and the shorelines hearings board into
one agency of state government with minimum disturbance to these
boards. It is not the intent of the legislature in consolidating these
boards to change the existing membership of these boards.
All full-time employees of the pollution control hearings board and
the full-time employee of the forest practices appeals board shall be
full-time employees of the environmental hearings office without loss
of rights. Property and obligations of these boards and the shorelines
hearings board shall be property and obligations of the environmental
hearings office." (1979 1st ex.s. c 47 f 1.]
RCW 43.21B.010 Pollution control hearings board
created Purpose. There is hereby created within the
environmental hearings office a pollution control hear-
ings board of the state of Washington.
The purpose of the pollution control hearings board is
to provide for a more expeditious and efficient disposi-
tion of appeals with respect to the decisions and orders
of the department and director and with respect to all
decisions of air pollution control boards or authorities
established pursuant to chapter 70.94 RCW. [1979 1st
cx.s. c47 § 3; 1970 ex.s c 62 § 31.]
Intent 1979 lat «x.s. c 47: See note following RCW 43 218 005
RCW 43.21 B.020 Members Qualifications
Appointment. The hearings board shall consist of three
members qualified by experience or training in pertinent
matters pertaining to the environment, and at least one
member of the hearings board shall have been admitted
to practice law in this state and engaged in the legal
profession at the time of his appointment. The hearings
(1979 Laws)
98
|Ch. 43.2IB RCW—f I]
-------
4V.MB.020
Environmental Hearings Office
bi.ird shall he .i|)|)')iiilcil hv the governor wilh the advice
,inpe< ilic written charges tiled by the governor, who shall
tr.iiisni'i such written charges to the member accused
and in the chief justice of the supreme court. The chief
• ist" -i shall thereupon designate a tribunal composed of
thiee nidges ol the superior couri to hear and adjudicate
the charges. Such tribunal shall fix the time of the
hearing which shall be public, and the procedure for the
heating, and die decision of such tribunal shall be final
ami not subject to review by the supreme court. Removal
ol any member ol the hearings board by the tribunal
shall disqualify such member for rcappointmcnt. [1970
t-x s c 62 § 34 |
RCW 43.21B.050 Governor lo determine basis for
opcrution -- Compensation if part time basis, limita-
tion -- Reimbursement of travel expenses. The hearings
bo.iid shall operale on cither a part time or a full time
h.isis, as determined by the governor. If it is determined
ih. it the hearings hoard shall operate on a full time ba-
sis, e ich member of the hearings board shall receive an
annual salary to be determined by the governor pursuant
to KCW 4(03040 If it is determined the hearings
boa id shall operate on a part time basis, each member of
flic hearings hoard shall receive compensation on the
h.isis of seventy five dollars for each day spent in per-
loimaiKT ol his duties but such compensation shall not
r i eed ten thousand dollais in a fiscal year. Each hear-
ings hoard member shall receive reimbursement for
travel expenses incurred in the discharge of his duties in
accordance wilh RCW 4U)J OSf) and 43.03 OoO as now
existing or hereafter amended [1975 '76 2nd ex.s. c 34
§ 101. 1970 ox s c 62 § 1s I
I ff«ll»« 4*lc S*v««blllty-
rmlr . followmit RC W ? OX 11 S
-1975-'76 2nd «x.». c 34: Sec
RCW 43.2IB.060 Restrictions upon conduct while
member and upon termination of membership. Each
member of the hearings board- (1) Shall not be a candi-
date for nor hold any other public office or trust, and
shall not cngnge in any occupation or business interfer-
ing with or inconsistent with his duty as n member of the
hearings boanl. nor shall he serve on or under any com-
mittee of an> political party; and (2) shall not for a pe-
riod ol one year after the termination of his membership
on the hearings board, act in a representative capacity
before the hearings board on any matter. [1970 ex.s. c
62 § 36.]
RCW 43.21B.080 Chairman, biennial election of.
The hearings board shall as soon as practicable after the
initial appointment of the members thereof, meet and
elect from among its members a chairman, and shall at
least biennially thereafter meet and elect such a chair-
man. 11970 cxs c 62 § 38.]
RCW 43.2IB.090 Principal office Quorum
Hearings by one or more members Hearing exami-
ners Board powers and duties. The principal office of
the hearings board shall be at the state capitol, but it
may sit or hold hearings at any other place in the state.
A majority ol the hearings board shall constitute a quo-
rum for making orders or decisions, promulgating rules
and regulations necessary for the conduct of its powers
and duties, or transacting other official business, and
may act though one position of the hearings board be
vacant. One or more members may hold hearings and
take testimony to be reported for action by the hearings
board when authorized by rule or order of the hearings
board The board may also appoint as its authorized
agents one or more hearing examiners to assist the board
in the performance of its hearing function pursuant to
the authority contained in the administrative procedure
act, chapter 14.04 RCW as now or hereafter amended:
Provided, That the findings of the hearing examiner
shall not become final until they have been formally ap-
proved by the board. The hearings board shall perform
all the poweis and duties specified in this chapter or as
otherwise provided by law [1974 ex s. c 69 § I; 1970
ex.s. c 62 § 39.]
RCW 43.21 B.I00 Board to make findings of fact
and written decisions on each case considered Ef-
fective upon signing and Tiling Public information.
The hearings board shall make findings of fact and pre-
pare a written decision in each case decided by it, and
such findings and decisions shall be effective upon being
signed by two or more members of the hearings board
and upon being filed at the hearings board's principal
office, and shall be open for public inspection at all rea-
sonable times. [1970 ex.s. c 62 § 40.]
RCW 43./IB.110 Board jurisdiction Issuance,
modification, terminntion of permits, licenses, as or-
der Appl; otion of administrative procedure act. The
h. 4V2IB R( W p 'I
99
(1979 Laws)
-------
Environmental Hearings Office
43.2 IB. 160
hearings board shall only have jurisdiction to hear and
decide appeal* from the decisions of the department and
the director and the air pollution control boards or au-
thorities a« established pursuant to chapter 70.94 RCW
when such decisions concern matters within the jurisdic-
tion of the hearings board as provided in *this act or as
provided in any future act or law granting the hearings
board additional jurisdiction. The hearings board shall
also have jurisdiction to hear and decide appeals from
any person aggrieved by an order issued by the depart-
ment or by air pollution control boards or authorities as
established pursuant to chapter 70.94 RCW with respect
to a violation or violations of *this act or of any rule or
regulation adopted by the department or of any other
taw within the jurisdiction of the department. The issu-
ance, modification, or termination of any permit or li-
cense by the department in the exercise of its
jurisdiction, including the issuance or termination of a
wnite disposal permit, the denial of an application for a
waste disposal permit, or the modification of the condi-
tions or the terms of a waste disposal permit, shall be
deemed to be an order for purposes of *this act: Pro-
vided, That review of rules and regulations adopted by
the board shall be subject to review in accordance with
the provisions of the administrative procedure act, chap-
ter 34.04 RCW. (1970 cx.s, c 62 § 41.]
•RtttMt'i Mttt 'Ihli «ct", we note* following RCW 43.2IA.OIO.
RCW 43.2 IB. 120 Board hearing authority exclu-
sive - Exception - Others' orders final unless appeal
lo board. Notwithstanding any other provisions of law to
the contrary, the department and all air pollution control
boards or authorities established pursuant to chapter
70.94 RCW are hereby prohibited from conducting
hearings on violations of any rule or regulation made by
the department or the director, on violations of *this act,
or on violations of any rule or regulation adopted by any
air pollution control board or authority established pur-
suant to chapter 70.94 RCW, or on the issuance, modi-
fication, or termination of any permit or license, within
the jurisdiction of the department. All petitions for
hearings with respect to such violations shall be heard by
this hearing board created in *this 1970 act: Provided,
Thut violations of any rule or regulation made by any air
pollution control board or authority established pursuant
to chapter 70.94 RCW, may be heard by a hearings
board of three members created by such board or au-
thority pursuant to regulations promulgated by the
hour ings board created in *this act.
Any order issued by the department or by any air
pollution control board or authority established pursuant
to chapter 70.94 RCW shall become final unless, no
later than thirty days after the date that the notice and
order are served, the person aggrieved by the order ap-
peals to the hearings board as provided for in 'this act.
(I970ex.s. c 62 § 42.1
T "thif act" and "ihii 1970 act", tee note* following
RCW43.2IA.OIO.
RCW 43.2IB. 130 Administrative procedure act to
apply to appeal of board rules and regulations Scope
of board action on decisions and orders of others. The
administrative procedure act, chapter 34.04 RCW, shall
apply to the appeal of rules and regulations adopted by
the board to the same extent as it applied to the review
of rules and regulations adopted by the directors and/or
boards or commissions of the various departments whose
powers, duties and functions are transferred by *this
1970 act to the department. All other decisions and or-
ders of the director and all decisions of air pollution
control boards or authorities established pursuant to
chapter 70.94 RCW shall be subject to review by the
hearings board as provided in *this 1970 act. (1970 ex.s.
c 62 § 43.]
•Rcvttcr't note: "thi« 1970 act', tee notes following RCW
432IA.OIO
RCW 43.2IB. 140 Formal or informal hearing, elec-
tion of party taking appeal Exception. In all appeals
over which the hearings board has jurisdiction under
RCW 43.21B.110 and 43.21 B.I 20, a party taking an
appeal may elect either a formal or an informal hearing,
such election to be made according to rules of practice
and procedure to be promulgated by the hearings board:
Provided, That nothing herein shall be construed to
modify the provisions of RCW 43.21 B.I90 and 43.218-
.200. In the event that appeals are taken from the same
decision, order, or determination, as the case may be, by
different parties and only one of such parties elects a
formal hearing, a formal hearing shall be granted. [1970
ex.s. c 62 § 44.]
RCW 43.218.150 Informal hearings, board or hear-
ing examiners' powers Staff assistance, limitation. In
all appeals involving an informal hearing, the hearings
board or its hearing examiners shall have all powers re-
lating to the administration of oaths, issuance of sub-
poenas, and taking of depositions as are granted to
agencies by chapter 34.04 RCW. In the case of appeals
within the scope of *this 1970 act the hearings board or
any member thereof may obtain such assistance, includ-
ing the making of field investigations, from the staff of
the director as the hearings board or any member
thereof may deem necessary or appropriate: Provided,
That any communication, oral or written, from the staff
of the director to the hearings board or its hearing ex-
aminers shall be presented only in an open hearing.
(1974 cx.s. c 69 § 2; 1970 cx.s. c 62 § 45.]
•Reviser's note: "this 1970 act", ice notes following RCW
43.2IA.OIO
RCW 43.2IB. 160 Formal hearings, board or hearing
examiners' powers Staff assistance, limitation. In all
appeals involving a formal hearing, the hearings board
or its hearing examiners shall have all powers relating to
administration of oaths, issuance of subpoenas, and tak-
ing of depositions as are granted to agencies in chapter
34.04 RCW; and the hearings board, and each member
100
[CV 43.2IB RCW—|> 3|
-------
41.21".. 160
Environmental Hearings Offio
ihereof, or its hearing examiners, shall be subject to all
duties imposed upon, and shall have all powers granted
lo, an agency by those provisions of chapter 34.04 RC'W
relating to contested cases. In the case of appeals within
lite scope of *this 1970 act, the hearings board, or any
member thereof, may obtain such assistance, including
I he making of field investigations, from the staff of the
•'ircclor as the hearings board, or any member thereof.
may deem necessary or appropriate: Provided, That any
communication, oral or written, from the staff of the di-
rcctoi io the hearings board or its hearing examiners,
sh.ill be presented only in an open hearing. [1974 ex.s. c
fi'> § 1; 1970 ex s c 62 § 46. |
•R«»l«fr'« note: 'ihii 1970 act', see notei following RCW
41 2IA OKI
R( W 13.21 B.I 70 Proceedings conducted in accord-
ance with published board rules and regulations. All pro-
ceedings, including both formal and informal hearings,
before the hearings board or any of its members shall be
i onductcd in accordance with such rules of practice and
piocedure as the hearings board may prescribe. The
hearings board shall publish such rules and arrange for
the reasonable distribution thereof. [1970 cx.s. c 62 §
47 |
ROV 43.21 B.I 80 Judicial review Director's
right of review of decision* pursuant to RCW 43.21B-
.110. Judicial review of a decision of the hearings board
shall be dc novo except when the decision has been
rendered pursuant to a formal hearing elected under the
provisions of "this 1970 act, in which event judicial re-
view may be obtained only pur.suunt lo RC'W 34.04.130
;iii<) ,M 04.140. The director shall have the same right of
review from a decision m.idc pursuant to RCW 43.2IB-
110 as docs any person. 11970 ex.s. c 62 § 48.]
•R«»l»*r'» note: "ihu 1970 net*, see notes following RCW
filing with the clerk ol the superior court a
notice of appeal, and by serving a copy thereof by mail,
or potsonully on I he director, the air pollution control
boards or authorities, established pursuant to chapter
70 V4 R( W or on the board as the case may be The
hearings l>o;ird shall serve upon the appealing party, the
director, the air pollution control board or authorities
established pursuant to chapter 70.94 RCW, or the
board, as the case may be, and on any other party ap-
pearing at the hearings board's proceeding, and file with
the clerk of the court before trial, a certified copy of the
hearings board's decision and order, livery appeal from a
decision of the superior court shall go directly to the su-
preme court, notwithstanding RCW 2.06.030. No bond
shall be required on appeals to the superior court or on
appeals to the supreme court unless specifically required
by the judge of the superior court. [1970 ex.s. c 62 §
49.)
RCW 43.21B.200 Judicial review Appeals to
court of appeals pursuant to RCW 34.04.130(6)
Procedure When bonds required. Within thirty days
after the final decision and order of the hearings board
upon such an appeal has been communicated to the in-
terested parties, or within thirty days after an appeal has
been denied after a formal hearing, such interested party
aggrieved by the decision and order of the hearings
board may appeal to the court of appeals pursuant to the
provisions of RCW 34.04.130(6). Such appeal may be
perfected by filing with the clerk of the court of appeals
a notice of appeal, and by serving a copy thereof by
mail, or personally on the director of the department,
and on the board. The hearings board shall serve upon
the appealing party, the director, and any other party
appearing at the hearings board's proceeding, and file
with the clerk of the court before trial, a certified copy
of the hearings board's official record which shall in-
clude the notice of appeal and other pleadings, testimony
and exhibits, and the hearings board's decision and order
which shall become the record in such case. No bond
shall be required on appeals to the court of appeals or on
appeals to the supreme court unless specifically required
by the judge of the court of appeals. [1970 ex.s. c 62 §
50.)
RCW 43.21B.220 Staying of orders or decisions
pending final determinations, existing law prevails. No
provision of this chapter shall be construed to change
existing law relating to the staying of orders or decisions
pending final determination of any hearing or appeal
taken in accordance with the provisions herein. [1970
ex.s. c 62 § 52.)
RCW 43.2IB.230 Appeal from notices of denial or
determination or order, procedure Formal or infor-
mal hearing, when. Any person having received notice of
a denial of a petition, a notice of determination, notice
of or an order made by the department under the provi-
sions of *this 1970 amendatory act may appeal, within
thirty days from the date of the notice of such denial,
order, or determination to the hearings board. The ap-
peal shall be perfected by serving a copy of the notice of
appeal upon the department or air pollution authority
established pursuant to chapter 70.94 RCW, as the case
may be, within the time specified herein and by filing
h.
-------
Environmental Hearings Office
43.21B.900
the original thereof with proof of service with the clerk
of the hearings board If the pcrton intends thut the
hearing before the hearings board be u formal one, the
notice of appeal shall so state. In the event that the no-
tice of appeal does not so state, the hearing shall be an
informal one: Provided, however. That nothing shall
prevent the department or the air pollution authority, as
the cu.sc muy be, within ten days from the date of its re-
ceipt of the notice of appeal, from filing with the clerk of
the hearings board notice of its intention that the hear-
ing be a formal one. (1970 ex.s. c 62 § 53.]
MHK 'thii 1970 amendatory act", tee notes following
RCW43.2IA.OIO.
RCW 43.21B.900 Savings Other powers and du-
ties not affected Permits, tUndardi not affected
Severabillly Effective dale 1970 basic act. Sec
notes following RCW 43.2IA.010.
RCW 43.21B.240 Public hearings of department un-
der administrative procedure act limited. Notwithstand-
ing any other powers, duties and functions transferred
by the provisions of *this act, the department shall only
huvc authority to hold public hearings, pursuant to the
administrative procedure act, chapter 34.04 RCW, with
respect to those matters enumerated in sections of "this
1970 umcndatory act. (1970 cx.s. c 62 § 54.]
•BtrlMr't not*: 'thii tct* and "thii 1970 amendatory act', tee notes
fallowing RCW 4321A.OIO
RCW 43.21B.2SO Challenges to consistency of rules
adopted pursuant to RCW 43.21C.110 and 43.21C-
.120 Procedure Finality. (1) All challenges in
regard to the consistency of the rules adopted pursuant
to RCW 43.21 C.I 20 and with the rules and guidelines
adopted pursuant to RCW 43.21C.I10 shall be initiated
by filing a petition for review with the pollution control
hearings, board in accordance with rules of practice and
procedures promulgated by the hearings board.
(2) All challenges to the hearings board provided un-
der (his section shall be Decided on the basis of con-
formuncc of rules, with the applicable rules and
guidelines adopted pursuant to RCW 43.2IC.110. The
board may in its discretion require briefs, testimony, and
oral arguments.
(3) The decisions of the hearings board authorized
under this section shall be final. [ 1974 ex s. c 179 § 9.]
Purpow 1974 «x.t. c 179: See note following RCW 43.2IC.080
SwraMMty 1974 «... c 179: RCW 43.2IC.910
RCW 43.2IB.260 Regulations and amendments of
activated air pollution control authorities Filing with
hearing* board authorized Evidence. Activated air
pollution control authorities, established under chapter
70.94 RCW, may file certified copies of their regulations
and amendments thereto with the pollution control
hearings board of the state of Washington, and the
hearings board shall take judicial note of the copies so
filed and the said regulations and amendments shall be
received and admitted, by reference, in alt hearings be-
fore the board, as prima facie evidence that such regu-
lations and amendments on file arc in full force and
effect. 11974 ex.s. c 69 § 5.]
iir'9 t i
102
|Ch. 4.1.ZIB RfW—f 5|
-------
ATTACHMENT 5: Practice and Procedure,
Chapter 371-08 WAG
103
-------
Chapter 371-08 WAC
PRACTICE AND PROCEDURE
WAf
171 OH 005 Mcmbcrihip, function and jurisdiction.
17| 08 010 Board administration - Office of the bo»-d.
171 OH 015 8o«rd administration • • Meeting of Ihe board.
171 0* 020 Board administration Quorum.
171-08-025 Board administration-- Office of ihc clerk of (he
board
371 -08-0)0 Board administration — Communications with the
board.
171 08 -0.11 Procedure* applicable.
171 08 032 Definition*.
171 -08-0.15 Appeurtnce und practice before the board Per-
»on> who may and may not appear.
171 08-040 Appearance and practice before the board——Ap-
pearance by representative.
171 08 045 Appearance and practice before the board——No
formal admission to practice.
Ml 08050 Appearance und practice before the board— With-
drawal or tubtlituuon of representatives.
171 08 055 Appearance and practice before the board
Conduct
171 08 065 Presiding officer Powers and duties
171 08 075
171 08 080
J7I 08 085
.171 08 090
.171 08 095
.171 08 100
.171 08 105
371 08 110
371 08 115
171 08 120
171 OH 125
171 OH 130
171 08 131
171 08 112
171 08 1.15
171 OK 140
171 08 145
171 08 150
171 08 155
J7I 08 15ft
171 OX IhO
.171 08 lf.5
171 08 175
171 OK 1X0
171 OX IKS
171 OK IK(>
171 08 187
Appealt to the board - Contents of notice of
appeal.
Appeali to the board- Time for filing appeals.
Appcali to the board Dismissal of appeal on ju-
risdictional groundi.
Appealt to the board-- Granting the appeal.
Appcali to the board Cross appeals.
Appeal* to the board • Correction or amendment
of notice.
Conferences Two types
Conference! Purpose of informal conferences.
Confcrencei --When held.
Conferences Agreements at informal conferences.
Conferences Purpose of pre-hearing conferences.
C onferencc* When held
Conferences - Documentary evidence.
Conferences • -Excerpts from documentary
evidence
Conferences 1-ailurc to supply prc- hearing
information
Conferences Agreements at pre- hearing
conference!
Conferences Applicability of superior court rules.
Hearing! - - Types of hearings.
II ciiringn Klection of type of hearings.
Hearings Assignment day - Time.
Hearings Notice of hearing.
Hearings Continuances, hearing postponement!!
and dismissal
Hairing* Setting subsequent hearings.
1 (curings Procedures at hcnrings.
Hearings Additional evidence by presiding
officer
Rule* of cvi
-------
.V7I-OH-OOS
Practice and Procedure
(a) AppcaK will lie from the issuance, modification or
icrminulion of any permit or license issued by the de-
p.uliucnl or air pollution control boards or authorities,
including the issuance, modification, or termination of
waste disposal permits; the denial of the application for
such permits, or the denial of an application for the
modification of the terms of such permits.
(b) The boaid also has jurisdiction to hear and decide
appeals from any person aggrieved by an order issued by
the department or by such air pollution control boards or
authorities with respect to violations of any law admin-
istered by the department or of any rule or regulation
ailopied by the department or by air pollution boards or
authorities, inclusive of any variances which the depart-
ment or air pollution boards and authorities may be au-
ihon/ed to grant, but exclusive of appeals based upon
claimed violations of their purely administrative rules
and regulations The board further has jurisdiction to
hear and decide appeals from any person aggrieved by
,my final decision contained in the document issued by
ihe department pursuant to the Environmental Coordi-
nation Procedures Ac!, RCW 90.62.060(6).
(c) This section is intended to be general and infor-
mational only, and failure herein to list matters over
which the board has jurisdiction at law shall not consti-
tute any waiver or withdrawal whatsoever from such ju-
risdiction (Order 75 I. § .171 OK 005, filed 1/9/75;
Order 70 I. § V7I 08 005, filed 12/18/70.)
WA( 371 -08-010 Board administration Office
of Ihe board. The headquarters and principal office of
the board is Number One South Sound Center, Lacey,
Washington. [Order 75 I, § 371 08-010, filed 1/9/75;
Order 70 I. § 171 08 010, filed 12/18/70.)
WAC 371 08-015 Board administration-
-Meet-
tng of Ihe board. The board shall meet in formal sessions
.it its principal office al 10:00 a.m. on the first Tuesday
of cacli month; and shall meet at such other limes and
places as the board may designate [Order 75 I, § 371-
08 105. filed 1/9/75; Order 70 I, § 371 08-015, filed
12/18/70.)
WAC 371 08-020 Board administration Quo-
rum. Two members of the board shall constitute a quo-
rum for making orders or decisions, or for promulgating
rules and regulations relating to its procedures, and may
.iot although one position on the board be vacant (RCW
4\ ?IU090). One member or designated hearing exam-
iner may hold hearings and lake testimony wl'en desig-
nated bv the board to so do. but all proceedings and
testimony shall be reported to the board, and ultimate
decisions shall be by the board. [Order 7S I, § 371 08
020, filed 1/9/75. Order 70 I. § 371 08 020. filed
I?/IK/70 )
WAC 371 08-025 Board administration Office
of the clerk of Ihe board. The office of the clerk of the
hoard sh.ill be located .it ihe headquarters and principal
office of ihe board. [Order 75-1, § 371 08-025, filed
I/'V75; Order 70-1, § 371-08-025, filed 12/18/70.)
WAC' 371-08-030 Board administration Com-
munications with the board. All written communications
by parties pertaining to a particular case, including re-
qiu-sts foi hearings on claimed violations of rules and
regulations as specifically provided in RCW 43.2IB.120;
notices of appeal from orders and decisions of the direc-
toi and/or department; and applications and requests for
relief of any kind, shall be filed with the clerk of the
board at its principal office in Olympia, Washington
Copies of all such written communications shall be fur-
nished to the department and to all other interested par-
ties or their representatives of record, and the original
filed with the clerk shall show thereon compliance with
this requirement. [Order 75-1, § 371 08-030, filed
1/9/75; Order 70-1, § 371-08-030, filed 12/18/70.)
WAC 371-08-031 Procedures applicable. The board
shall be guided in procedural matters before it by chap-
ter 371 08 WAC. Chapter 371-08 WAC specifically
replaces the Uniform Procedural rules chapter 1-08
WAC, except where specifically noted. [Order 75-1, §
371-08 031, filed 1/9/75.)
WAC 371-08-032 Definitions. As used in this
chapter the following terms shall have the following
meaning: (1) "Board" refers to and means thc'Pollution
Control Hearings Board as described in WAC 371 08
005. Where appropriate, the term "board" also refers to
the staff and employees of the Pollution Control Hear-
ings Board.
(2) "Department" refers to and means the Depart-
ment ot Ecology.
(3) "Presiding officer" or "hearing officer" shall mean
any member of the board or any person who is assigned
to conduct a conference or hearing by the chairman or
by the vice-chairman in event of the chairman's absence
[Order 75-1, § 371-08 032, filed 1/9/75.)
WAC 371-08-035 Appearance and practice before
the board Persons who may and may not appear. No
person may appear in a representative capacity before
the board or its designated hearing officer other than the
following: (1) Attorneys at law duly qualified and enti-
tled to practice before the Supreme Court of the state of
Washington.
(2) Attorneys at law duly qualified and entitled to
practice before the highest court of record of any state,
if the attorneys at law of the state of Washington are
permitted to appear in a representative capacity before
administrative agencies of such other state, and if not
otherwise prohibited by our state law.
(3) A bona fide officer, partner or full time employee
of an individual firm, association, partnership, corpora-
lion or local government unit who appears for such indi-
vidual, firm, association, partnership, corporation or
local government unit.
h. 171-OH WAC—p 2\
105
(12/6/77)
-------
Practice and Procedure
.V71_08-0*5
(4) Legal interns admitted to practice under APR 9 of
the Rules of Court may appear before the board under
ihe conditions und limitations therein specified.
(*>) No former employee of the department or member
of the attorney general's staff may, at any time after
severing his employment with the department or the at-
torney general, appear, except with the written permis-
sion ol the department, in a representative capacity on
behalf of other parties in a formal proceeding wherein
he/she previously look an active part as a representative
of the department in the same case or proceeding. [Or-
der 75 I. § 371 08-035, filed 1/9/75; Order 70 I, §
.171 OK 035. filed 12/18/70.|
WAC 371-08-040 Appearance and practice before
(he board Appearance by representative. (1) Appear-
ances may be made on behalf of any party by his attor-
ney or other duly authori/cd representative as defined in
WAC 171 08 035. by
(a) I Ming a written notice of appearance containing
the name of the party to be represented, and the name
and address of the representative, or by
(b) f'ntering an appearance at the time and place of a
conference or hearing on the appeal, and notifying the
presiding officer conducting the same of the party to be
represented and the name and address of the
representative
(c) Copies of every written notice of appearance shall
be furnished to all other parlies or their representatives
of record at the lime the original is filed with the clerk
of I he board.
(d) Unless the department notifies the board other-
wise, the attorney general shall, in all appeals from de-
cisions and orders of the department and director, be
deemed to have entered appearance for the department,
and shall be exempt from the requirements herein relat-
ing to the filing of written notices of appearance and to
the furnishing ol copies of same to other parties and
iheir representatives
(?) Thereafter all future notices and orders shall be
served by the board upon such representative. Service
upon the representative shall constitute service upon the
party (Order 75 |, § <7I 08 040. filed 1/9/75; Order
70 I. § 171 08 040, filed 12/18/70).
WAC .171-08 045 Appearance and practice before
the board No formal admission to practice. Duly au-
thor i/cd representatives shall be permitted to appear in
proceedings before the board without a formal request or
admission to practice before the board [Order 75 I, §
171 OH 045. filed 1/9/75. Order 70 I, § 371 08 045,
filed 12/18/70]
WAC 171 08 050 Appearance and practice before
the boHrd Withdrawal or substitution of representa-
tives. An attorney or other representative withdrawing
from a case shall immediately so notify the clerk of the
board and all parties of record in writing, or shall state
stab withdrawal on the record at a conference or hcar-
hu'. Any substitution of an attorney or representative
sh.ill be accomplished by written notification to the clerk
ot the board and to all parties of record, together with
th< written consent of the prior attorney or representa-
tive, and if such consent cannot be obtained, a written
statement of the reason therefor shall be supplied. [Or-
dci 75 I, § 371-08-050, filed 1/9/75, Order 70-1, §
371-08-050, filed 12/18/70.]
WAC 371-08-055 Appearance and practice before
the board Conduct. All persons appearing in a repre-
sentative capacity in proceedings before the board shall
conform to the standards of ethical conduct required of
attorneys before the courts of Washington. If any such
person does not conform to such standard, the presiding
officer may, in his/her discretion and depending on all
the circumstances, admonish or reprimand such person,
or exclude such person from further participation in the
proceedings and adjourn the same, or report the matter
to the board which may, in its discretion, after notice
and hearing, take appropriate disciplinary action includ-
ing, but not limited to, a letter of reprimand, and refusal
to permit such person to appear in a representative ca-
pacity in any proceeding before the board. [Order 75-1,
§ 171-08 -055, filed 1/9/75; Order 70-1, § 371-08-055,
filed 12/18/70.]
WAC 371-08-065 Presiding officer Powers and
duties. It shall be the duty of the presiding officer to
conduct conferences or hearings in cases assigned to
him/her in an impartial and orderly manner, and he/she
shall have the authority, subject to the other provisions
of these rules: (I) To administer oaths and affirmations;
(2) To issue subpoenas as provided in RCW 34.04-
.105. A subpoena may also be issued by the attorney of
record, or any person making an appearance as author-
ised by WAC 37 08-035(3) as provided in RCW
3404.105;
(3) To rule on all procedural matters, objections and
motions,
(4) To rule on all offers of proof and receive relevant
evidence,
(5) To interrogate witnesses called by the parties in an
impartial manner to develop any facts deemed necessary
to fairly and adequately decide the appeal;
(6) To secure and present in an impartial manner
such evidence, in addition to that presented by the par-
ties, as he/she deems necessary to fairly and equitably
decide the appeal;
(7) To take appropriate disciplinary action with re-
spect to representatives of parties appearing before the
board;
(8) To issue orders joining other parties, on motion of
any party, or on his/her own motion when it appears
that such other parties may have an interest in. or may
be affected by, the proceedings;
(9) To consolidate appeals for hearing when such
consolidation will expedite disposition of the appeals and
(12/6/7')
106
|Ch. 371-08 WAC—p 3]
-------
.Y71-ON-065
Practice and Procedure
avoid duplication <>f lesiimony and when the rights of
thc'pariies will nol bo prejudiced (hereby:
(10) To hold conl'erences lor the settlement or ampli-
fication ol ihe issues at such limes as set by the
chairman:
(II) To take or cause to be taken depositions and in-
icrrog.tlories pursuant to these rules and to procedures
available to litigants in civil cases in superior courts in
the state ol Washington;
(I 2) To regulate the course of ihe hearing;
(13) To lake any other action necessary and author-
i/ed by these rules and the law. [Order 75 1, § 371-08
065. filed l/<>/75; Order 70 I, § 371 08-065. filed
12/18/70 )
WAC 371-08-075 Appeals to the board Con-
tents of Notice of Appeal. The Notice of Appeal shall
contain (I) The name and mailing address of the ap-
pealing parly, and the name and address of his/her rep-
resentative, il any;
(2) The appealing parly's legal residence or principal
place of business within the stale;
(3) A copy of ihe order or decision appealed from,
and if the order or decision followed an application, a
copy of the application;
(4) The grounds upon which the appealing parly con-
siders such order or decision u> be unjust or unlawful,
and if one of the grounds so asserted is failure to comply
with R( W 4V2ir.030(2)(c) (SKPA), three copies of
any environmental impact stalemeni if available to
appellant.
(5) A statement of facts in supporl of each ground
slated;
(6) The relief sought, including the specific nature
and extent,
(7) A staiemcnt thai the appealing party has read the
notice and believes the contents lo be true, followed by
his/her signature and the signature of his/her represen-
tative, il any If the appealing party is unavailable to
sign the Notice ol Appeal, it may be signed by his/her
representative (Order 75 I, § 371 08 075, filed
1/9/75, Order 70 I, § 371 08 075. filed 12/18/70.)
WA< 371 08-080 Appeals lo the board lime
for filing; appeals. The Notice of Appeal shall be filed
wiihm thiriy days Irom the dale ihe copy of the order or
decision of the department or olher state agency or pol-
lution control board (or authority) was communicated to
the appealing parly The original and one copy of Ihe
"^oiiie ol Appeal shall be filed, by mail or otherwise,
wiih (he clerk of the board, and one copy shall be filed,
bv mail or otherwise, with the Director of l-.cology. If
Ihe appeal involves a license or permit, a copy of the
Notice ol Appcjil shall also be mailed to the holder
thercol II the decision or order appealed from is made
by anothci stale agency or an air pollution control board
lor authority), a Notice of Appeal shall also be filed
with that agency or boaid (or authority). The clerk shall
forthwith acknowledge receipt of the appeal filed, and
his/her stamp placed thereon shall be prima facie evi-
dence of ihe date of receipt. The board may thereafter
require additional copies to be filed. (Order 75 1, §
371-08-080, filed 1/9/75; Order 70- I, § 371 08 080,
filed 12/18/70.]
WAC 371-08-085 Appeals to the board Dis-
missal of appeal on jurisdictions! grounds. Any party
may challenge the jurisdiction of the board to hear an
appeal on jurisdictional grounds, and the board may sua
sponte raise the jurisdictional issue. The board may,
when satisfied that it docs not have jurisdiction, dismiss
an appeal. [Order 75-1, § 371-08-085, filed 1/9/75;
Order 70-1. § 371-08-085, filed 12/18/70.J
WAC 371-08-090 Appeals to the board Grant-
ing the appeal. Unless on motion of any party or on its
own motion, the board shall determine it does not have
jurisdiction, the appeal shall be granted, and a confer-
ence or hearing ordered thereon to clarify ihe issues
raised. The clerk of the board shall forthwith notify all
parties ol the receipt of the appeal, and shall forward a
copy of such notice to the other parties. [Order 75-1, §
371-08-090, filed 1/9/75; Order 70-1, § 371 -08-090.
filed 12/18/70.]
WAC 371-08-095 Appeals to the board Cross-
appeals. Within twenty days after granting of an appeal,
interested parties may file an order of cross -appeal with
the clerk which shall stale clearly the interest which the
cross-appellants deem entitles them to a cross appeal,
and which shall conform in all respects to the require-
ments for a Notice of Appeal. The cross-appellant shall
be subject to the same rules as an appellant, unless the
rule is clearly inapplicable. [Order 75-1, § 371 08 095,
filed 1/9/75; Order 70-1, § 371-08-095, filed
P/18/70.]
WAC 371-08-100 Appeals to the board Cor-
rection or amendment of notice. (I) If any Notice of
Appeal is found by the board to be defective or insuffi-
cient, the board may require the party filing said Notice
of Appeal to correct, clarify or amend the same to con-
foirn to the requirements of the statute and the board's
rules. The board may refuse to schedule any conference
or hearing thereon until compliance with such require-
ments, or may issue an order providing for dismissal of
such appeal upon failure to comply within a specified
time.
(2) Prior to the scheduling of the first conference, the
party appealing may amend his Notice of Appeal at any
lime; thereafter, such amendment may be made on such
terms as the board or presiding officer may prescribe,
and the presiding officer may, when deemed necessary,
in justice to all parties, require correction, clarification
or amendment of a Notice of Appeal before allowing
any hearing thereon to proceed, or may issue an order
requiring such correction, clarification or amendment to
be made within a specified time, and if such requirement
Ch HI OH WAf —p 4)
107
(12/6/77)
-------
Practice and Procedure
371-08-131
is not complied with, the board may dismiss the appeal.
|Ordcr 75 I. § 371-08- 100, filed 1/9/75; Order 70-I, §
M\ OX 100, filed 12/18/70.]
WAC 371-08-105 Conferences Two types.
Conferences (.hall be of two types: Informal and pre-
hcaring. (Order 75 1, § 371-08 105, filed 1/9/75; Or-
der 70 1. § 371 OK 105, filed 12/18/70.)
WAC 371-08-110 Conferences Purpose of in-
formal conferences. The purpose of an informal confer-
ence shall be to determine the feasibility of a settlement
of the appeal. The presiding officer shall be present at
the opening and closing of a scheduled informal confer-
ence, but since the absence of the presiding officer may
facilitate, on occasion, the achievement of an agreement
or a settlement, he may, on the request of either party,
or on his/her own volition, absent himself/herself from
the conference from time to time. [Order 75-1, § 371-
08 110, filed 1/9/75; Order 70 I, § 371-08-110, filed
12/18/70.]
WA< 371-08-115 Conferences When held. At
any time prior to hearing on an appeal, any party there-
to muy file a written application with the clerk of the
board, requesting an informal conference. The board
may thereupon, at its discretion, or any time on its own
motion, order an informal conference on not less than
seven days' notice mailed to each party to the appeal, at
a time and place fixed by the board. At any time prior
to hearing, the presiding officer to whom the case is as-
signed, may. pursuant to agreement of all parties, con-
vene and preside at an informal conference at a lime and
place agreed upon. [Order 75 I, § 371 08 115, filed
1/9/75; Order 70 I, §371 08 I 15, filed 12/18/70.1
WAC 371-08-120 Conferences Agreements at
informal conferences. (I) All agreements reached at in-
formal conferences shall be stated on the record by the
presiding officer and the parties shall indicate their con-
currence on the record
(?) If .111 agreement concerning final disposition of the
appeal is reached by all the parties present or represent-
ed at a conference, ;in order muy be issued in conformity
thcrcwiih, providing the board finds said agreement is in
accordance with the law.
(3) If the board decides that the agreement is not in
accordance with the law and the facts, it may schedule
another informal conference, or direct that a prc-hear-
ing conference be held.
(4) If no agreement is reached by the parties as to fi-
nal disposition of an appeal, a prc hearing conference
may thereupon be held [Order 75-1. § 371-08-120,
filed 1/9/75; Order 70 I. § 37108-120, filed
12/18/70.)
WAC 371-08-125 Conferences Purpose of pre-
he.ihng conferences. The purpose of a prc hearing con-
fcioncc shall be to obtain a stipulation of facts to .show
tin board's jurisdiction in the matter, to obtain agree-
ment as 10 the issues of law and fact presented and the
simplification or limitation thereof; to determine the ne-
cessity of amendments to the Notice of Appeal or other
pleadings; to determine the possibility of obtaining ad-
missions of facts and authenticity of documents which
will avoid unnecessary proof; to determine the admissi-
bility of exhibits; to obtain stipulation as to all or part of
the facts in the case; to determine the limitation of the
number of witnesses; to obtain information as to the
number of expert and lay witnesses expected to be called
by the parties and their names when possible; to deter-
mine the approximate time necessary for the presenta-
tion of the evidence of the respective parties; and to
obtain all other information which may aid in the
prompt disposition of the appeal. [Order 75-1, § 371-
08-125, filed 1/9/75; Order 70-1, § 371 08-125. filed
12/18/70.]
WAC 371-08-130 Conferences When held. At
any time prior to hearing on an appeal, any party there-
to may file a written application with the board request-
ing a pre-hearing conference. The board may,
thereupon, at its discretion, or at any time on its own
motion, order a pre-hearing conference on not less than
seven days' notice mailed to each party to the appeal, at
a time and place fixed by the board. At any time prior
to hearing, the presiding officer to whom the case is as-
signed, may, pursuant to agreement of all parties, con-
vene and preside at a pre-hearing conference at a time
and place agreed upon. Such pre-hearing conference
may also be held immediately at the conclusion of an
informal conference if time permits, or, at the discretion
of the presiding officer, may be held at a later time on
seven days' written notice to each party to the appeal.
[Order 75-1, § 371-08-130, filed 1/9/75, Order 70 I, §
371-08 130, filed 12/18/70.)
WAC 371-08-131 Conferences Documentary
evidence. (1) The board''or its presiding officer may
require:
(a) That all documentary evidence which is to be of-
fered during the taking of evidence be submitted prior to
any pre-hearing conference. The evidence shall be sub-
mitted sufficiently in advance of the pre-hearing confer-
ence to permit study and preparation for the conference.
(b) That documentary evidence not submitted in ad-
vance, as may be required by subsection (l)(a), be not
received in evidence in the absence of a clear showing
that the offering party had good cause for his failure to
produce the evidence sooner.
(c) That the authenticity of all documents submitted
in advance in a proceeding in which such submission is
required, be deemed admitted unless written objection
thereto is filed prior to the hearing, except that a party
(12/6/V/)
108
[Ch. 371-08 WAC—p 5|
-------
371-08-131
Practice and Procedure
will be permitted to challenge such authenticity at a lat-
er time upon a clear showing of good cause for failure to
have filed such written objection.
(?.) The presiding officer may, upon findings made on
the record, limit the documentary evidence to that pre-
sented at any pre hearing conference. For good cause
shown any parly may submit additional documentary
evidence at tlrc lime of hearing. [Order 75-1, § 371-08-
131. filed 1/9/75; Order 70-1, § 37I--08-I32, filed
12/IK/70. |
WAC 371-08-132 Conferences Excerpts from
documentary evidence. When portions only of a docu-
mcnt are to be relied upon, the offering party shall pre-
pare the pertinent excerpts, adequately identified, and
shall supply copies of such excerpts to the presiding offi-
cer tind to the other parties. Only the excerpts, so pre-
pared and submitted, shall be received in the record.
However, the whole of the original document shall be
made available for examination and for use by all par-
ties to the proceeding. [Order 75 I, § 371 08-132, filed
1/9/75; Order 70 |. § 371 08 132, filed 12/18/70.)
WAC 371-08-135 Conferences Failure to sup-
ply pre-hearing information. If any party fails to supply
the presiding officer at a pro hearing conference the in-
formation reasonably necessary to aid the board in
properly scheduling hearings, the board or the presiding
officer may suspend setting a hearing pending receipt of
the required information, or may refuse to grant such
party a continuance of the original hearing, or may oth-
erwise restrict the time or location of hearing for receipt
of such party's evidence. (Order 75-1, § 371-08-135,
filed 1/9/75; Order 70 I, § 371 08 135, filed
I2/IK/70.)
WAC 371-08-140 Conferences Agreements at
pro-hearing conferences. At the conclusion of a pre-
hcarmg conference, Ihe presiding officer conducting the
same shall stale on the record the results thereof. The
Malemcni shall include the agreements of the parties
concerning issues, admissions, witnesses, time and loca-
lion of hearings, the issues remaining to be determined
and other matters that may expedite the subsequent
hearing, The statement of agreement and issues, and
rulings of the presiding officer, shall control the subse-
quent course of the proceedings, unless modified for
good cause by subsequent order. [Order 75-1, § 371-
OK 140, filed 1/9/75; Order 70 I, § 371 08-140, filed
12/18/70 |
WAC 371-08-145 Conferences Applicability of
superior court rules. Insofar as applicable, and not in
conflict with these rules, Ihe statutes and rules regarding
pre (rial procedures in civil cases in the superior courts
of ihis slate shall be followed. Such rules sha!1 include
hut shall no) be limited to those rules pertaining to dis-
covery of evidence by parlies to civil actions. [Order 75-
I, § 371 08-145, filed 1/9/75; Order 70- I, § 371 08
MS, filed 12/18/70.]
WAC 371-08-150 Hearings Types of hearings.
The statute creating the board contemplates two kinds of
hearings, informal and formal, without any indication as
to what the distinction should be, but with very diffcrcni
piovisions for the review of order entered. The proce-
dures in conducting these two types of hearings by the
board shall be generally the same. [Order 75-1, § 371
08 150, filed 1/9/75; Order 70-1, § 371-08 150, filed
12/18/70.)
WAC 371-08-155 Hearings Election of type of
hearings. In all appeals over which the board has juris-
diction, the party taking the appeal may elect a formal
or informal hearing. If different parties appeal from the
same order and one elects a formal hearing, the hearing
will be formal. If no party taking an appeal of an order
makes an election, the hearing will be informal. Howev-
er, notwithstanding any election of a party taking an
appeal, the department or any air pollution control
board or authority may, within ten days after receiving a
Notice of Appeal, notify the board of its intention that
the hearing be formal and when such notice of intention
is filed, the hearing will be formal. [Order 75-1, § 371
OX-155, filled 1/9/75; Order 70-1, § 37I--08-I55, filed
12/18/70.)
WAC 371-08-156 Hearings Assignment
day Time. (1) As a general rule, the board, or its
dcsigncc, shall assign hearing days for cases before it for
review on the first Tuesday of each month: Provided,
That if such day falls on a legal holiday, the assignmeni
day shall be the next working day: Provided further,
That upon notice to all parties, the board may make
such assignments at other times.
(2) The board or its designee may set pre-hearing
conference dates at the same time and on the same con-
ditions as that set out in subsection (I) above.
(3) In all cases, the chairman shall be consulted be-
fore assignments are finalized. [Order 75-1, § 371-08
1%, filed 1/9/75.]
WAC 371-08-160 Hearings Notice of hearing.
(I) Time. If the board orders a hearing, it shall mail a
written notice thereof to all parties not less than twenty
days prior to the hearing date.
(2) Contents. The notice shall identify the appeal to
be heard, the names of the parties to the appeal and
their representatives, if any, and shall specify the time
and place of hearing, and that the hearing is to be held
pursuant to chapter 43.2IB RCW. [Order 75-1, § 371
08 160, filed 1/9/75; Order 70-1, § 371-08-160. filed
12/18/70.]
WAC' 371-08-165 Hearings Continuances,
hearing postponements and dismissal. (1) Continuances.
|Ot .171-0* VVAf — p 6|
/ 109
(12/6/77)
-------
Practice and Procedure
371-08-186
(a) Pursuant to agreements at pre-hearing conference.
If agreement is reached at a pre-hearing conference,
continuances shall be granted m accordance with such
agreement and no written application therefor shall be
required
(b) Request* prior to hearing. If, prior to the hearing
date, n party finds that he/she will not be able to present
all such evidence at the scheduled hearing, such party
shall file a written request for continuance with the clerk
of the board setting forth the reasons therefor a-, soon as
such reasons arc known.
(c) Requests at time of hearing. If reasons requiring a
continuance of a hearing are not known in time to per-
mit compliance with subsection (b) of this section, ap-
plication therefor may be made orally at the hearing.
(d) When granted. Applications for a continuance
made pursuant to subsections (b) or (c) above shall only
be granted upon a proper showing of good cause to pre-
vent manifest injustice. In order to show "good cause,"
the party applying for a continuance because of the un-
availability of u witness or witnesses shall show that due
diligence was exercised in attempting to obtain the pres-
ence of such witnesses at the time set for hearing and
the reasons for their unavailability, and shall identify the
witnesses and explain, in substance, what he intends to
prove by ihc testimony of such witnesses. In all cases in
which a request for continuance is granted, subsequent
hearings shall be scheduled.
(2) Hearing Postponements. A postponement of a
hearing may be requested by any party after receipt of
the notice of hearing: Provided, That written objections
arc filed within ten days of the receipt of such notice.
Copies of such request shall be served on all other par-
tics. If the request is granted, all parlies shall be notified
of the postponement. Requests for postponement not
filed within the ten day period shall be granted only in
exceptional cases to prevent manifest injustice.
In all cases in which a request for postponement is
granted, subsequent hearings shall be scheduled in ac-
cordance with rule WAC 371 08-175.
(3) Dismissal. If the moving party fails to appear at
the scheduled hearing and fails to obtain a continuance
or postponement as provided in this section, the appeal
shall be dismissed except to prevent manifest injustice or
unless such party can show good cause for such failure.
[Order 75 I, §371 08 165, filed 1/9/75; Order 70-1, §
171 08 165, filed I2/IH/70.)
WAC 371 08-175 Hearings Setting subsequent
hearings. Any further hearings sh;ill be scheduled in due
course ,n such lime anil place as deemed prop°r by the
board or the chairman. (Order 75 I, § 371 08-175,
filed 1/9/75; Order 701, § 37108-175, filed
12/18/70]
WAC 371 08-180 Hearings Procedures at
hearings. (I) Presiding officer. All hearings shall be
conducted by a presiding officer who shall conduct the
hearing in an orderly manner and rule on all procedural
matters, objections and motions.
(2) Order of presentation of evidence. The presiding
officer shall determine the proper order of presentation
of evidence. As a general rule, the appealing party shall
initially introduce all evidence in his case in-chief, ex-
cept that in case of an appeal from an order assessing a
penalty, the department (or air pollution board), shall
initially introduce all evidence necessary to their cases
in chief. Rebuttal evidence will then be received.
Witnesses may be called out of turn in contravention
of this rule only by agreement of all parties.
(3) Opening statements. Unless the presiding officer
rules otherwise, all parties shall present an oral opening
statement setting out briefly a statement of the basic
facts, disputes, and issues of the case.
(4) Written statement of Qualifications of Expert
Witnesses. Any party who plans to introduce the testi-
mony of any expert witness at the hearing shall submit
to the bo; rd and all parties at the outset of the hearing a
written statement of the qualifications, experience, and
expertise of each such expert witness.
(5) Former employee as an expert witness. No former
employee of the department shall, at any time after sev-
ering his employment with the department, appear, ex-
cept with the written permission of the department, as
an expert witness on behalf of other parties in a formal
proceeding wherein he previously took an active part in
the investigation as a representative of the department.
(6) Objections and motions to strike. Objections to the
admission or exclusion of evidence shall be in short form,
stating the legal grounds of objection relied upon, and
the transcript shall not include extended argument or
debate.
(7) Rulings. The presiding officer, on objection or on
his own motion, shall exclude all irrelevant or unduly
repetitious evidence and all rulings upon objections to
the admissibility of evidence shall be made in accord-
ance with WAC 371-08-185 — 371-08-189. [Order
75-1, § 371-08-180, filed 1/9/75; Order 70-1, § 371-
08-180, filed 12/18/70.]
WAC 371-08-185 Hearings Additional evidence
by presiding officer. The presiding officer may, when all
parties have rested, present such evidence, in addition to
that presented by the parties, as deemed necessary to
decide the appeal fairly and equitably. Any such evi-
dence secured and presented by the presiding officer
shall be presented in an impartial manner, and shall be
received subject to full opportunity for cross-examina-
tion by all parties. If a party desires to present rebuttal
evidence to any evidence so presented by the presiding
ollicer, he/she shall make application therefor immedi-
ately following the conclusion of such evidence. Such
application shall be granted by assignment of a time and
place for presentation of such rebuttal evidence. [Order
75-1, § 371-08-185, filed 1/9/75; Order 70-1, § 371
OK-185, filed 12/18/70.)
WAC 371-08-186 Rules of evidence Admissi-
bility criteria. Subject to the other provisions of these
rules, all relevant evidence is admissible which, in the
(12/6/77)
110
ICh. 371-08 WAC—p 7)
-------
37MW 186
Practice and Procedure
opinion of the officer conducting the hearing, is the best
evidence reasonably obtainable, having due regard for its
necessity, availability and trustworthiness. In passing
upon the admissibility of evidence, the officer conducting
the hearing shall give consideration to, but shall not be
bound to follow, the rules of evidence governing civil
proceedings in mailers nol involving trial by jury in the
superior courts of the state of Washington. [Order 75 I,
§ .171 OH 186, filed 1/9/75. Order 70 I. § 371 08- 186,
Tiled 12/18/7(1 |
WA( 171-08 187 Rules of evidence Official
notice Matters of law. The board and its hearing of-
ficers, upon request made before or during a hearing,
will officially notice:
(I) Federal law. The Constitution; congressional acts,
resolutions, records, journals and committee reports; de-
cisions of federal courts and administrative agencies; ex-
ecutive orders and proclamations; and all rules, orders
and notices published in the federal Register.
(2) State law. The Constitution of the slate of
Washington, acls of I he legislature, resolutions, records,
journals and committee reports: Decisions of adminis-
trative agencies of the state of Washington, executive
orders and proclamations by the governor; and all rules,
orders and notices filed with the code reviser.
(3) Governmental organization. Organization, territo-
rial limitations, officers, departments, and general ad-
ministration of the government of the state of
Washington, the United Stales, the several states and
foreign nations.
(4) Agency organization. The department, commission
or board organi/alion, administration, officers, person-
nel, official publications, and practitioners before its bar.
(5) Rules of Regional Authorities. Rules or regulations
of air pollution control boards or authorities established
pursuant to chapter 7094 RCW, when such rules or
regulations are filed with the board pursuant to section
5. chapter f>9. Laws of 1974 ex. sess [Order 75 1, §
*7I OS 1X7. filed I/9/7S ]
WAC .171-08-188 Rules of evidence Official
notice Material facts. In the absence of controvert-
ing evidence, the board and its hearing officers, upon
request made before or during a hearing, may officially
nonce.
(I) Board proceedings. The pendency of, the issues
and position of the parties therein, and the disposition of
any proceeding then pending before or theretofore con-
cluded by the board;
(2) Business customs. General customs and practices
followed in the transaction of business;
(1) Notorious facts, facts so generally and widely
known to all well informed persons as not to be subject
to reasonable dispute, or specific facts which are capable
of immediate and accurate demonstration by resort to
accessible sources of generally accepted authority, in-
cluding but noi exclusively, facts stated in any publica-
tion iiulhori/ed or permitted by law to be made by any
federal or state officer, department, or agency;
(4) Technical knowledge. Matters within the technical
knowledge of the board as a body of experts, within the
scope or pertaining to the subject matter of its statutory
duties, responsibilities or jurisdiction;
(5) Request or suggestion. Any party may request, or
the presiding officer may suggest, that official notice be
taken of a material fact, which shall be clearly and pre-
cisely staled, orally on the record, at any prc -hearing
conference or oral hearing or argument, or may make
such request or suggestion by written notice, any plead-
ing, motion, memorandum, or brief served upon all par-
tics, at any time prior to a final decision;
(6) Statement. Where an initial or final decision of
the board rests in whole or in part upon official notice of
a material fact, such fact shall be clearly and precisely
stated in such decision. In determining whether to take
official notice of material facts, the hearing officer may
consult any source of pertinent information, whether or
nol furnished as it may be, by any party and whether or
not admissible under the rules of evidence;
(7) Controversion. Any party may controvert a request
or a suggestion that official notice of a material fact be
taken at the time the same is made if it be made orally,
or by a pleading, which the same is made or suggested.
If any decision is stated to rest in whole or in part upon
official notice of a material fact which the parties have
noi had a prior opportunity to controvert, any party may
controvert such fact by appropriate exceptions if such
notice be taken in an initial or intermediate decision or
by a petition for reconsideration if notice of such fact be
taken in a final report. Such controversion shall concise-
ly and clearly set forth the sources, authority and other
data relied upon to show the existence or nonexistcncc of
the material fact assumed or denied in the decision;
(8) Evaluation of evidence. Nothing herein shall be
construed to preclude the board or its authorized agents
from utilizing their experience, technical competence,
and specialized knowledge in the evaluation of the evi-
dence presented to them. [Order 75-1, § 371-08-188,
filed 1/9/75.]
WAC 371-08-189 Rules of evidence Tentative
admission Exclusion Discontinuance Objec-
tions. When objection is made to the admissibility of ev-
idence, such evidence may be received subject to a later
ruling. The officer conducting the hearing may, in
his/her discretion, either with or without objection, ex-
clude inadmissible evidence or order cumulative evidence
discontinued. Parties objecting to the introduction of ev-
idence shall state the precise grounds of such objection
at the time such evidence is offered. [Order 75-1, §
371-08 189, filed 1/9/75.]
WAC 371-08-190 Disposition of contested
csises Definition. As used herein, a contested case
shall mean any case not previously disposed of by agree-
ment of the parties, or by dismissal thereof either volun-
tarily or for failure of prosecution, which is submitted to
the board for determination of any issues of fact or law.
[Order 75-1, § 371 08 190, filed 1/9/75.]
(Mi WA(
H\
111
(12/6/77)
-------
Practice and Procedure-
371-08-205
WAC 371-08-195 Disposition of contested
case* Record. The record before the board in any
contented CUHC Khali consist of the decision or order ap-
pealed from, the notice of appeal therefrom, responsive
pleadings, if any, and notices of appearances, and any
other written applications, motions, stipulations or re-
quests duly filed by any party and written reports or or-
ders of the presiding officer. Such record shall also
include all depositions, if they are admitted at the hear-
ing, the transcript of testimony as provided in WAC
171 08 1%, and other proceedings at the hc»iing, to-
gether with all exhibits offered. No part of the depart-
ment's record or other documents shall be made part of
the record of the board unless admitted in evidence.
(Order 75 I. § 371--08 195, filed 1/9/75; Order 70-1, §
371 08 195. filed 12/18/70.]
WAC 371-08-196 Disposition of contested
cases Transcripts. The following shall be the policy
of the board with regard to transcription of the record:
(I) If less than two or no members of the board are
present at the hearing and if exceptions to the proposed
decision and order of (he board or presiding officer have
been lirnely filed as provided by WAC 371-08-205, the
board shall cause a transcript to be printed for review by
the entire board. Any party may obtain a transcript
upon payment of the reasonable cost thereof.
(2) The board, in its discretion, may at any time cause
a transcript to be printed.
(3) In any case when the board shall not cause a
transcript to be printed, it shall be the obligation of the
party wishing a transcript to order the same from the
board reporter and assume the cost of printing same.
[Order 75 2. § 371 08 196. filed 11/5/75; Order 75-1,
§ 371 OH 196. filed 1/9/75.)
WAC 371-08-200 Disposition of contested
ca!ie* Proposed and final decisions and orders. (1)
Final. When the hearing on the appeal has been heard
by a majority of the board, and upon completion of the
record and submission of the issues for decision and or-
der, a written final decision and order concurred in by
them then may be adopted which shall contain findings
and conclusions as to each contested issue of fact and
law.
Such final decision and order shall be the final deci-
sion of the bourd for purposes of judicial review.
(2) Proposed. When the hearing on the appeal has
hecn heard by less than a majority of the board or when
loss than a majority of the board concur in the matter or
when the bourd shall otherwise elect to do so, :• written
proposed final decision and order shall thereafter be
prepared which shall contain findings and conclusions as
to each contested issue of fact and law.
The provision of WAC 371 08 205. 371-08-210, and
371 OK 215 shall apply to such proposed decision and
order
(3) Copies of the final decision and order and pro-
posed decision and order, as the case may be, shall be
m.iiled by the board to each party to the appeal and to
the attorney or representative of record. [Order 75-2, §
371-08-200, filed 11/5/75; Order 75-1, § 371-08-200,
filed 1/9/75; Order 70-1. § 371-08-200. filed
I?/18/70.]
WAC 371-08-201 Disposition of contested
cases Presentation of additional evidence. After the
parties have rested or upon review of the record, the
board may present such evidence, in addition to that
contained in the record, as deemed necessary to decide
the appeal fairly and equitably. Any evidence secured
and presented by the board shall be presented in an im-
partial manner, and shall be received subject to full op-
portunity for cross-examination by all parties. If a party
desires to present rebuttal evidence to any evidence so
presented by the board, he must make application there-
for immediately following the conclusion of such evi-
dence. Such application will be granted by assignment of
a time and place for taking of such rebuttal evidence.
[Order 75-1, § 371-08-201, filed 1/9/75.]
WAC 371-08-205 Disposition of contested
cases Exceptions. (1) Time for filing. Within twenty
days, or such further period as the board may allow on
written application of a party, from the date of commu-
nication of the proposed decision and order to the parties
or their attorneys of record, any party aggrieved thereby
may file with the clerk of the board, a written statement
of exceptions thereto. Copies thereof shall be furnished
to all other parties. In the event such statement of ex-
ceptions is filed, the failure of any party not aggrieved
by the proposed decision and order to file a statement of
exceptions shall not be deemed a waiver by such party of
any objections or irregularities disclosed by the record.
(2) Contents. Such statement of exceptions shall set
forth in detail the grounds therefor and the party or
parties filing the same shall be deemed to have waived
all objections or irregularities not specifically set forth
therein. A general exception to findings of fact on the
ground that the weight of evidence is to the contrary
shall not be considered sufficient compliance, unless the
exception shall refer to the evidence relied upon in sup-
port thereof. If legal issues are involved, the statement of
exceptions shall set forth the legal theory relied upon
and citation of authority and/or argument in support
thereof. The statement of exceptions should also contain
the exceptor's proposed findings of fact and/or conclu-
sions of law covering the factual and legal issues to
which exceptions are being taken.
(3) Reply to exceptions. Any party may, within ten
days, submit a reply to exceptions, a written brief or a
statement of position regarding the matters on which
exceptions were taken, or the board may, on its own
motion, require the parties to submit written briefs or
statements of position or to appear and present oral ar-
gument regarding the matters on which exceptions were
taken, within such time and on such terms as may be
prescribed.
(12/ft/H)
[Ch. 371-08 WAC—p 9)
112
-------
371-08-205
Practice and Procedure
(4) Action by board on exceptions. The board shall, in
a case in which it determines that a statement of excep-
tions docs not properly conform to the provisions of sub-
section (?.) above, issue an order requiring the party to
amend such statement of exceptions to conform to that
rule, within a specified time. Failure of the parly to
comply with such order shall result in the board issuing
an order adopting the proposed decision and order of the
board as the decision and order of the board on the
ground that no legally sufficient statement of exceptions
had been taken to said proposed decision and order.
(5) Exceptions to rulings on admissibility of evidence.
If an exception is taken to a ruling or rulings of a pre-
siding officer sustaining an objection to admissibility of
evidence, or denying a continuance for the presentation
of further evidence, and the board determines that said
ruling or rulings were erroneous, the board may:
(a) return the case lo the presiding officer with ap-
propriate instructions, or
(b) open the matter for further argument and decision
by the board itself. (Order 75 I, § 371-08-205, filed
1/9/75; Order 70 I. §371 OK 205, filed 12/18/70.)
WA( 371-08-21(1 Disposition of contested
cases Finality of proposed decisions and orders. In
the event no statement of exceptions is filed as provided
herein by any party, the proposed decisions and order of
the presiding officer may be adopted by the board and
become I he final decision and order of the board. Such
adoption of the proposed decision and order shall be the
final decisioii of the board for purposes of judicial re-
view. [Order 75 I, § 371 08 210, filed 1/9/75; Order
70 I, § 371 08 210. filed 12/18/70.J
WA( 371 OJ) 215 Disposition of contested
cases Final decisions and orders. After the filing of a
statement or statements of exceptions, if any, and reply,
il any, the filing of briefs or presentation of oral argu-
ment, thereon, if required, and the obtaining of addi-
tional evidence, if any, as provided for in WAC 371-08-
?01. the record before the board shall be considered by
at least two of the members of the board: Provided, That
if iwo members cannot agree on a decision, the third
member must consider the record before the board: And
further provided, That if two members cannot agree on a
decision in any case, the substantive decision of the de-
partment or pollution control board (or authority) will
control, l-'vcry final decision and order rendered by the
board shall be in writing and shall contain findings and
conclusions as to each contested issue of fact and law, as
well as (he board's order based thereon A co^y of the
decision and order, including the findings and conclu-
sions, shall be mailed to each party lo the appeal or to
his attorney of record (Order 75 I, § 371 08-215, filed
I/9/7V Order 70 I. §371 08 215, filed 12/18/70.)
WA< 371-08-220 Appeals to the courts Notice
of Appeal to the superior court. All appeals from orders
of ihe board, whether alter a formal or informal hearing.
shall be to a superior court. (Sec Maple Leaf Investors,
Int. v. Department ef Ecology , 10 Wn.App. 586.) The
appealing party shall file with the board a copy of the
Notice of Appeal to the superior court, and shall keep
the board informed concerning the outcome of the ap-
peal. [Order 77-1, § 371-08-220, filed 9/8/76; Order
75 I, § 371-08-220, filed 1/9/75; Order 70-1, § 371
08 220, filed 12/18/70.)
WAC 371-08-230 Appeals to the courts Certi-
fication of record. Upon receipt of a copy of the Notice
of Appeal to the superior court, the board shall certify
the record made before the board to the court to which
the appeal is taken. [Order 77-1, § 371-08-230, filed
9/8/76; Order 75-1, § 371-08-230, filed 1/9/75; Order
70 -!,-§ 371-08-230, filed 12/18/70.]
WAC 371-08-235 Computation of time. The time
within which any act shall be done, as provided by these
rules, shall be computed by excluding the first day and
including the last, unless the last day is a Saturday, a
Sunday, or a legal holiday, and then it is excluded and
the next succeeding day which is neither a Saturday, a
Sunday, nor a legal holiday, is included. When the peri-
od of time prescribed or allowed is less than seven days,
intermediate Saturdays, Sundays and holidays shall be
excluded in the computation. [Order 75-1, § 371-08
235, filed 1/9/75; Order 70-1, § 371-08-235, filed
12/18/70.]
WAC 371-08-240 Petitions for declaratory ruling.
(I) Right to petition for declaratory ruling. As prescribed
by RCW 34.04.080, any interested person may petition
the board for a declaratory ruling.
(2) Form of petition. The form of the petition for a
declaratory ruling shall generally adhere to the
following:
(a) At the top of the page shall appear the wording
"Before the Pollution Control Hearings Board, slate of
Washington." On the left side of the page below the
foregoing, the following caption shall be set out: "In the
Matter of the Petition of (name of petitioning party) for
a Declaratory Ruling." Opposite the foregoing caption
shall appear the word "Petition."
(b) The body of the petilion shall be sel out in num-
bered paragraphs. The first paragraph shall state the
n.une and address of the petitioning party. The second
paragraph shall state all rules or statutes that may be
brought into issue by the petition. Succeeding para-
graphs shall set out the state of facts relied upon in form
similar to that applicable to complaints in civil actions
before the superior courts of this state. The concluding
paragraphs shall contain the prayer of the petitioner.
Ihe petition shall be subscribed and verified in the
manner prescribed for certification of complaints in the
superior courts of this stale.
(c) The original and two legible copies shall be filed
wilh ihe board. Petitions shall be on white paper, cither
8 1/2" x II" or 8-1/2" x 13" in size.
WAC ~p
113
(12/6/77)
-------
Practice and Procedure
371-08-260
O) <'onmidertttion of petition. The entire board shall
consider the petition, and within a reasonable time shall:
(a) Issue a nonbindmg declaratory ruling; or
(b) Notify the person ihal no declaratory ruling is to
be issued; or
(c) Set a reasonable lime and place for a hearing or
for submission of" written evidence on the matter, and
give reasonable notification to the person of the time and
place for such hearing or submission, and of the issues
involved.
(4) Disposition of petition. If a hearing is held or evi-
dence is submitted as provided in subsection (3)(c)
above, the board shall, within a reasonable time:
(a) Issue a binding declaratory ruling; or
(b) Issue a nonbinding declaratory ruling, or
(c) Notify the person that no declaratory ruling is to
be issued. [Order 75 I, § 371 -08 240, filed 1/9/75;
Order 70 I, § 371 08-240, filed 12/18/70.]
WAC 371-08-245 Petitions for rule making. (I)
Right to petition for rule making. Any interested person
may petition the board for the promulgation, amend-
ment, or repeal of any rule.
(2) Form of petition. The form of the petition for pro-
mulgation, amendment, or repeal of any rule shall gen-
erally adhere to the following:
At the top of the page shall appear the wording, "Be-
fore the Pollution Control Hearings Board, state of
Washington." On the left side of the page below the
foregoing, the following caption shall be set out: "In the
Matter of the petition of (name of petitioning parly) for
(state whether promulgation, amendment or repeal) of
rule (or rules)." Opposite the foregoing caption shall ap-
pear the word "Petition."
The body of the petition shall be set out in numbered
paragraphs The first paragraph shall stale the name
and address of the petitioning party and whether the pe-
titioner \ccks the promulgation of new rule or rules, or
amendment or repeal of existing rule or rules. The sec-
ond paragraph, in case of a proposed new rule or
amendment of an existing rule, shall set forth the desired
rule in its entirely Where (he petition is for amendment,
the new matter shall be underscored and the matter
proposed to be deleted shall appear in double parenthe-
ses. Where the petition is for repeal of an existing rule,
Mich shall be slated and the rule proposed to be repealed
shall cither be set forth in full or shall be referred to by
rule number The third paragraph shall set forth con-
cisely the reasons for the proposal of the petitioner and
shall contain a statement as to the interest of the peti-
tioner in the subject matter of the rule. Additional num-
bered paragraphs may be used to give full explanation of
petitioner's reason for the action sought.
Petitions shall be dated and signed by the person or
entity named in the first paragraph or by his/her attor-
ney The original and two legible copies of the petition
shall be filed with the board Petitions shall be on white
paper, cither 8 1/2" x 11" or 8 1/2" x 13" in size.
(3) Consideration of petitions. All petitions shall be
considered by the entire board, and the board may, in its
discretion, order an informal hearing or meeting for the
fin i her consideration and discussion of the requested
promulgation, amendment, or repeal of any rule.
(4) Notification of disposition of petition. The board
shall notify the petitioning person within a reasonable
time of the disposition, if any, of the petition. [Order
75 |, § 371-08-245, filed 1/9/75; Order 70-1, § 371
OK 245, filed 12/18/70.1
WAC 371-08-250 Review of permits under the Na-
tional Pollutant Discharge Elimination System. (I) The
provisions of this section shall apply only to review pro-
ceedings before the board pertaining to permits issued
by the Department of Ecology under the provisions of
the National Pollutant Discharge Elimination System.
(2) In those cases where the board determines that a
permit issued by the Department of Ecology is invalid in
any respect, the board shall issue an order directing the
Department of Ecology to reissue the permit in accord-
ance with said order and consistent with the provisions
of said order and with all applicable federal statutes and
guidelines as well as with applicable state statutes and
guidelines. [Order 75-1, § 371-08-250, filed 1/9/75;
Order 70-1, § 371-08-250, filed 12/18/70.]
WAC 371-08-260 Applicability of SEPA guidelines.
The board has reviewed its authorized activities pursu-
ant to WAC 197-10-800(4) and has found them all to
be exempt from the provisions of chapter 197-10 WAC.
[Order 77-2, § 371-08-260, filed 12/6/77.)
(I2/A/77)
ICfc. 371-0* WAC—p ll|
114
-------
TECHNICAL REPORT DATA
(fleaic read Imtructtons on the revene before completing)
T
t AKPOMT Nil
4. TITll AND8UKTITLI
Jnlllttl fkffllKM '-o/iHliler/iLI0n» for a Model State
and Local AdmlnlHtratlve Pines Program,
Volume II
3. RECIPIENT'S ACCESSION NO.
e~R6i»OflT DATE"
Auguat 1982
8. PERFORMING ORGANIZATION CODE
AUrHOAYtt
Lisa A. Baci, J. O'Neill Collins, Andrew Bagley,
Unhurt I. Klrufyw _^ ___
(IHUANIZATION NAME~A~NO ADDRESS
B. PERFORMING ORGANIZATION REPORT NO.
GCA-TR-82-19-G(2)
GCA/Technology Division
213 Burlington Road
Bedford, Massachusetts 01730
12. SPONSORING AGt.NCY NAME AND ADDRESS
U.S. Environmental Protection Agency
Division of Stationary Source Enforcement
Washington, D.C. 20460
10. PROGRAM ELEMENT NO.
Ti. C6NTRACT/GRANT NO.
68-01-6316, Technical Service
Area 3, Task Order No. 25
13. TYPE OF REPORT AND PERIOD COVERED
Final
14. SPONSORING AGENCY CODE
16. SUPPU Ml N I ARY NOfl-S
. ABSTRACT
EPA has determined that an effective enforcement strategy for ensuring
continuing compliance with air pollution regulations must provide quickly imposed
sanctions, appropriate remedies, and a means of building a record in cases
involving recalcitrant sources. EPA believes that an enforcement strategy which
Incorporates an administrative fines component may be well suited to meeting
these goals and has decided to pursue development of a model administrative
fines program. This report develops a list of issues that must be addressed by a
model administrative fines program, and then formulates an initial set of design
criteria for such a program. This analysis is based on the operating experience
of nine state and local agencies that currently employ administrative fines
programs as part of their overall air pollution enforcement effort.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
Air Pollution
Enforcement
Administrative Fines
Continuing Compliance
b.IDENTIFIERS/OPEN ENDED TERMS
c. COSATI 1 ield/Group
IB. DISTRIBUTION STATEMENT
19. SECURITY CLASS (This Report)
Unclassified
21. NO. OF PAGES
114
20. SECURITY CLASS (Thispage)
Unclassified
22. PRICE
BPA P»rm J220-1 (R«v. 4-77) PNEVIOU* EDITION II OBSOLETE
115
------- |