68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 335
House Bill 2495
Sponsored by Representative COURTNEY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Decriminalizes littering. Provides for local enforcement of
littering laws through administrative procedure for levying of
civil penalties and assessment of costs. Imposes maximum penalty
of $___ for violation of litter discard provision. Imposes
maximum penalty of $___ for violation of litter transport
provision.
A BILL FOR AN ACT
Relating to littering; creating new provisions; amending ORS
1.520, 133.080, 161.005, 196.825, 459.108 and 477.305; and
repealing ORS 133.100, 164.775 and 164.805.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 14 of this Act:
(1) 'Public transportation facility' has the meaning given in
ORS 164.365.
(2) 'Public way' includes, but is not limited to, roads,
streets, alleys, lanes, trails, beaches, parks and all
recreational facilities operated by the state or a local
government unit for use by the general public. + }
SECTION 2. { + No person shall:
(1) Discard or direct another person to discard any debris,
garbage, litter, recyclable material, refuse, rubbish, trash or
waste other than in receptacles provided for the purpose of
holding the debris, garbage, litter, recyclable material, refuse,
rubbish, trash or waste:
(a) On the private land of another without the permission of
the owner;
(b) On land within 100 yards of any of the waters of the state,
as defined in ORS 468B.005;
(c) On any public way; or
(d) In or upon any public transportation facility.
(2) Nothing in this section or ORS 164.785 prohibits the
operation of a disposal site, as defined in ORS 459.005, for
which a permit is required and has been issued by the Department
of Environmental Quality and which is being operated and
maintained in accordance with the terms and conditions of such
permit. + }
SECTION 3. { + No person shall transport or cause another to
transport any debris, garbage, litter, recyclable material,
refuse, rubbish, trash or waste in or on a motor vehicle or
trailer unless the material is:
(1) Enclosed on the top, bottom and all sides by a cover that
is part of the vehicle or trailer or that is securely attached to
the vehicle or trailer; or
(2) Contained in the vehicle or trailer in a manner preventing
the deposit of any of the transported matter onto private land,
waters of this state or a public way. + }
SECTION 4. { + (1) Each local government unit shall designate
an agency to enforce sections 1 to 14 of this Act within its
jurisdiction.
(2) An agency designated under subsection (1) of this section
may:
(a) Investigate suspected violations.
(b) Initiate complaints.
(c) Negotiate and settle complaints.
(d) Present evidence at hearings.
(e) Engage in collection proceedings for awarded civil
penalties and costs.
(2) A person authorized by an agency to enforce sections 1 to
14 of this Act, an employee of the Department of Environmental
Quality or a law enforcement officer witnessing an act prohibited
under section 2 or 3 of this Act may detain any individual
committing the prohibited act so long as is necessary to
determine the identity of the individual and any additional
information that is appropriate for the purposes of supporting a
complaint by the designated agency. + }
SECTION 5. { + (1) An agency designated under section 4 of
this Act shall initiate a complaint only by service on the
respondent personally or by sending the complaint by properly
addressed registered or certified mail. A copy of the complaint
shall be filed for assignment to a hearings officer.
(2) The complaint shall state:
(a) The names of the parties and the complaint number.
(b) The address of the respondent.
(c) The address of the location of the alleged violation or, if
unavailable, a detailed and specific description of the location
of the alleged violation.
(d) The nature of the alleged violation, including reference to
section 2 or 3 of this Act.
(e) The maximum civil penalty applicable and notice that
additional costs incurred by the agency may be imposed.
(f) The time limit for the respondent to submit an answer,
which shall be not less than 15 days after initiating the
complaint. The time limit for submitting an answer shall be
extended by three days if service is by registered or certified
mail.
(g) The result of a failure by the respondent to answer.
(h) The procedural rights of the respondent, including but not
limited to, the right to a hearing, to be informed of evidence to
be presented and witnesses to be called by the agency, to present
contrary evidence, to call witnesses and to be represented by
counsel.
(i) The name and telephone number of an agency contact person
familiar with the complaint.
(3) If the agency stipulates a lesser penalty amount that the
agency will accept instead of the maximum civil penalty and costs
that would otherwise be available, the stipulated penalty amount
shall be placed on the complaint in addition to or in lieu of the
maximum civil penalty and costs disclosure. + }
SECTION 6. { + (1) Unless precluded by law, an agency and the
respondent may informally dispose of a complaint initiated under
section 5 of this Act by stipulation, consent order or agreed
settlement at any time prior to issuance of a final order by the
hearings officer.
(2) If the respondent has contacted the agency after delivery
of the complaint, the agency shall inform the hearings officer of
the contact. + }
SECTION 7. { + (1) An answer by the respondent to a complaint
initiated under section 5 of this Act may be made by:
(a) Requesting a hearing;
(b) Submitting a written response to the complaint disputing
the allegation or claiming facts in mitigation of the violation;
or
(c) Delivering a copy of the complaint and tendering payment
for the stipulated penalty amount to the agency. Delivery and
tender shall be full satisfaction of the complaint. The agency
shall notify the hearings officer that the complaint has been
settled.
(2) If the respondent fails to answer the complaint within the
time allotted, the hearings officer may elect to accept the
agency file as the entire hearing record and render a final order
declaring a default, stating findings of fact based on the record
and assessing civil penalties and costs. + }
SECTION 8. { + (1) For any alleged violation of section 2 or 3
of this Act, the respondent is entitled to a hearing before a
hearings officer appointed by the agency. The hearings officer
shall schedule the hearing not earlier than 10 days following the
date the respondent's answer is received.
(2) An attorney may aid the agency in preparing evidence and
obtaining witnesses, but shall not appear unless counsel for the
respondent appears.
(3) The respondent has the right to be represented by counsel
retained by the respondent. The respondent has no right to
appointed counsel.
(4) If counsel is retained to represent the respondent at the
hearing, counsel shall notify the hearings officer not later than
five days before the scheduled hearing date or, if retained less
than five days before the scheduled hearing date, upon retention.
If less than five days' notice is given, the hearings officer may
waive the notice requirement or reschedule the hearing.
(5) The respondent has no right to a jury. + }
SECTION 9. { + (1) Upon request of either party or by motion
of the hearings officer, the hearings officer may issue subpoenas
for the attendance of persons to appear at the hearing as
witnesses or for the production of books, documents or other
tangible things.
(2) If a party desires that witnesses be ordered to appear by
subpoena, the party shall make a written request to the hearings
officer not later than five days before the scheduled hearing
date. Each request by a party for a subpoena shall be accompanied
by a deposit of $15 to be applied to payment of witness and
mileage fees. Any witness or mileage fees in excess of the
deposit shall be paid by the party at the hearing.
(3) If any person fails to comply with a subpoena issued by the
hearings officer or refuses to testify regarding the subject of
the hearing, the hearings officer may suspend the hearing and
petition the circuit court of the county in which the hearing is
held for a court order compelling attendance or testimony. + }
SECTION 10. { + (1) The authority of the hearings officer
includes, but is not limited to, administering oaths, taking
testimony of witnesses, receiving exhibits and hearing arguments.
(2) The hearings officer may exclude irrelevant, immaterial or
unduly repetitious evidence, but failure to exclude evidence
shall not preclude a finding on the record unless shown to have
substantially prejudiced the rights of a party.
(3) The hearings officer shall give effect to the rules of
privilege recognized by law. Objections to evidentiary offers may
be made and shall be noted in the record. Any part of the
evidence may be received in written form.
(4) The agency has the burden of proving the violation of
section 2 or 3 of this Act by the respondent by a preponderance
of the evidence. The name of a person, firm or corporation found
on an item of debris, garbage, litter, recyclable material,
refuse, rubbish, trash or waste in such a manner as to denote
ownership of the item, shall create a rebuttable presumption that
all debris, garbage, litter, recyclable material, refuse,
rubbish, trash or waste reasonably associated with the item was
deposited by the named person, firm or corporation.
(5) Notwithstanding ORS 9.160 and 9.320, an agency may be
represented at contested case hearings by an officer or employee
of the agency. The agency representative shall not present legal
argument, but shall be available to answer questions about the
agency investigation and findings.
(6) The respondent has the right to present evidence, call
witnesses and to cross-examine witnesses. + }
SECTION 11. { + (1) Not later than 30 days after the date of
the hearing, the hearings officer shall issue a finding and a
final order. The hearings officer shall state the factual basis
for the finding. The finding shall be based on evidence of a type
commonly relied upon by a reasonably prudent person in conducting
serious affairs.
(2) A copy of the facts relied upon, the finding and the final
order shall be sent to the parties or, if applicable, to the
attorneys of record.
(3) A motion to reconsider the final order of the hearings
officer may not be filed later than the 10th day following the
date of the order. The hearings officer may reconsider the order
with or without further briefing or oral argument, but shall not
receive additional evidence or testimony. If allowed,
reconsideration may result in reaffirming, modification or
reversal of the final order. Filing a motion for reconsideration
shall not toll the period for filing for judicial review.
(4) Judicial review shall be as provided by ORS 34.010 to
34.100.
(5) A finding and final order may be asserted by the respondent
as a bar to any subsequent complaint by the same or another
agency for the same occurrence.
(6) A tape recording of the hearing shall be made unless waived
by both parties. The tape shall be retained for at least 90 days
after the hearing date. If an appeal of the order is taken, the
tape shall be retained until a final judgment on the appeal has
been issued. + }
SECTION 12. { + (1) A civil penalty or award of costs is due
and payable not later than 10 days after the sending of a final
order or finalization of a negotiated settlement. Payment not
made by the date it is due and payable shall accumulate interest
from the date of the order at the rate provided in ORS 82.010.
(2) A civil penalty or award of costs assessed as part of an
order and remaining unpaid after the date it is due and payable
may be recorded in the County Clerk Lien Record for the county in
which the hearing was held. A writ of garnishment may be issued
on behalf of the local government unit represented by the agency
in the same manner as provided under ORS 29.357.
(3) Except as provided in section 13 of this Act, all civil
penalties resulting under sections 1 to 14 of this Act shall
belong to the local government unit represented by the
agency. + }
SECTION 13. { + Any person other than a person employed by the
agency designated by a local government unit to enforce sections
1 to 14 of this Act, the Department of Environmental Quality or
as a law enforcement officer providing information leading to the
imposition and collection of a civil penalty under section 6, 7
or 11 of this Act may receive a reward for providing the
information. The reward amount shall be set by rule of the
agency, but shall in no case exceed 51 percent of the amount of
the civil penalty collected. Unless specified in the final order
of the hearings officer, the agency shall determine the method by
which amounts received shall be credited to the satisfaction of
civil penalties, curative costs and administrative costs
awarded. + }
SECTION 14. { + (1) Any person who commits an act prohibited
by section 2 of this Act is subject to a civil penalty not to
exceed $_____.
(2) Any person who commits an act prohibited by section 3 of
this Act is subject to a civil penalty not to exceed $_____.
(3) In addition to the civil penalties permitted under
subsections (1) and (2) of this section, a person who commits an
act prohibited by section 2 or 3 of this Act shall reimburse the
agency for the actual administrative costs incurred, including
but not limited to, the cost of investigation and hearings.
(4) In addition to the civil penalties permitted under
subsections (1) and (2) of this section and administrative costs
under section (3) of this section, a person who commits an act
prohibited by section 2 or 3 of this Act shall reimburse the
agency or other incurring party for the actual curative costs
incurred, including but not limited to, costs of containment,
cleanup and proper disposal. + }
SECTION 15. { + On or before the effective date of sections 1
to 14 of this Act, each local government unit shall designate an
agency to enforce sections 1 to 14 of this Act within its
jurisdiction. + }
SECTION 16. ORS 477.305 is amended to read:
477.305. The { + State + } Forester is authorized to enforce
the provisions of { - ORS 164.805 - } { + section 3 of this
1995 Act + } insofar as such affects forestland within forest
protection districts established under this chapter. { + An
agency designated by any county in which the forest protection
district is located shall have jurisdiction to issue a complaint
for a violation occurring anywhere within the forest protection
district. + }
SECTION 17. ORS 1.520 is amended to read:
1.520. (1) The Supreme Court may adopt rules for the conduct of
cases involving any of the following:
(a) Traffic offenses. Rules adopted under this paragraph may
include any rules the Supreme Court determines necessary to carry
out the purposes of an agreement established under ORS 802.530.
(b) Boating offenses.
(c) Violations of game and commercial fishing laws.
(d) Violations of ORS { - 164.775, - } 618.121 and 618.151.
(e) Infractions subject to ORS 8.665, 153.110 to 153.310 and
153.990.
(2) Rules adopted under this section, when promulgated,
supersede any local rule of a state court inconsistent therewith.
All city ordinances and city court rules shall conform to the
rules so adopted.
(3) Subject to ORS 153.623, the Supreme Court shall establish a
schedule of minimum bail or security for offenses and infractions
described under this section. The schedule is binding on all
courts of this state.
SECTION 18. ORS 133.080 is amended to read:
133.080. Nothing in ORS 133.045 to 133.080, 133.110 and 156.050
applies to violations of law enforceable under:
(1) The Oregon Vehicle Code;
(2) ORS 153.325 to 153.440;
(3) ORS 153.500 to 153.635 and 153.995; { + or + }
(4) ORS 153.705 to 153.765 { + . + } { - ; or - }
{ - (5) ORS 133.100 and 164.775 (5). - }
SECTION 19. ORS 161.005 is amended to read:
161.005. ORS 161.005 to 161.055, 161.085 to 161.125, 161.150 to
161.175, 161.190 to 161.275, 161.290 to 161.370, 161.405 to
161.485, 161.505 to 161.585, 161.605, 161.615 to 161.685, 161.705
to 161.737, 162.005, 162.015 to 162.035, 162.055 to 162.115,
162.135 to 162.205, 162.225 to 162.375, 162.405 to 162.425,
162.465, 163.005, 163.115, 163.125 to 163.145, 163.160 to
163.208, 163.215 to 163.257, 163.275, 163.285, 163.305 to
163.465, 163.505 to 163.575, 163.665 to 163.695, 164.005, 164.015
to 164.135, 164.140, 164.205 to 164.270, 164.305 to 164.377,
164.395 to 164.415, { - 164.805, - } 164.877, 165.002 to
165.022, 165.032 to 165.070, 165.075 to 165.109, 165.805, 166.005
to 166.095, 166.350, 166.382, 166.384, 166.660, 167.002 to
167.027, 167.060 to 167.100, 167.117, 167.122 to 167.162, 167.203
to 167.252, 167.310 to 167.340 and 167.350, 167.810 and 167.820,
shall be known and may be cited as Oregon Criminal Code of 1971.
SECTION 20. ORS 196.825 is amended to read:
196.825. (1) The director shall issue a permit to remove
material from the beds or banks of any waters of this state
applied for under ORS 196.815 if the director determines that the
removal described in the application will not be inconsistent
with the protection, conservation and best use of the water
resources of this state as specified in ORS 196.805.
(2) The director shall issue a permit applied for under ORS
196.815 for filling waters of this state if the director
determines that the proposed fill would not unreasonably
interfere with the paramount policy of this state to preserve the
use of its waters for navigation, fishing and public recreation.
(3) In determining whether or not a permit shall be issued, the
director shall consider the following:
(a) The public need for the proposed fill and the social,
economic or other public benefits likely to result from the
proposed fill. When the applicant for a fill permit is a public
body, the director may accept and rely upon the public body's
findings as to local public need and local public benefit.
(b) The economic cost to the public if the proposed fill is not
accomplished.
(c) The availability of alternatives to the project for which
the fill is proposed.
(d) The availability of alternative sites for the proposed
fill.
(e) Whether the proposed fill conforms to sound policies of
conservation and would not interfere with public health and
safety.
(f) Whether the proposed fill is in conformance with existing
public uses of the waters and with uses designated for adjacent
land in an acknowledged comprehensive plan and zoning ordinances.
(g) Whether the proposed fill is compatible with the
acknowledged comprehensive plan and land use regulations for the
area where the proposed fill is to take place.
(h) Whether the proposed fill is for streambank protection.
(4) The director may issue a permit for a substantial fill in
an estuary for a nonwater dependent use only if the fill is for a
public use and would satisfy a public need that outweighs harm to
navigation, fishery and recreation and if the proposed fill meets
all other criteria contained in ORS 196.600 to 196.905.
(5) If the director issues a permit, the director may impose
such conditions as the director considers necessary to carry out
the purposes of ORS 196.805, 196.830 and subsections (1) and (2)
of this section. In formulating such conditions the director may
consult with the State Geologist, the State Fish and Wildlife
Director, the State Forester, the Director of the Department of
Environmental Quality, the administrative officer of the State
Soil and Water Conservation Commission, the Director of
Agriculture, the State Parks and Recreation Director, the State
Marine Director, the Director of Transportation, the Director of
the Economic Development Department, the Water Resources Director
and affected local governmental units. Each permit is valid only
for the time specified therein. Obtaining a lease from the
Division of State Lands shall not be one of the conditions to be
considered in granting a permit under ORS 196.815. The director
shall impose, as conditions to any permit, general authorization
or wetland conservation plan, measures to provide mitigation for
the reasonably expected adverse impacts from project development.
(6) Any applicant whose application for a permit has been
denied, or who objects to any of the conditions imposed under
subsections (1), (2) and (5) of this section by the director,
may, within 10 days of the denial of the permit or the imposition
of any condition, request a hearing from the director. Thereupon
the director shall set the matter down for hearing, which shall
be conducted as a contested case in accordance with ORS 183.415
to 183.430, 183.440 to 183.460 and 183.470. After such hearing,
the director shall enter an order containing findings of fact and
conclusions of law. The order shall rescind, affirm or modify the
director's initial order. Appeals from the director's final order
may be taken to the Court of Appeals in the manner provided by
ORS 183.482.
(7) Except for a permit issued under the process set forth in
ORS 517.952 to 517.987, if a decision on issuance of a permit by
the Director of the Division of State Lands is delayed for a
period exceeding 45 days from the date of application in the case
of a removal, or 90 days from the date of application in the case
of a fill, a temporary permit shall be issued pending such final
decision.
(8) Permits issued under this section shall be in lieu of any
permit that might be required for the same operation under ORS
{ - 164.775, - } 164.785, 468.010, 468.030 to 468.045,
468.055, 468.060, 468.075, 468.110, 468.120, 468B.005 to 468B.030
and 468B.048 to 468B.085, so long as:
(a) The operation is that for which the permit is issued; and
(b) The standards for granting such permits are substantially
the same as those established pursuant to ORS { - 164.775, - }
164.785, 468.010, 468.035, 468.040, 468.055, 468.110, 468.120,
468B.005 to 468B.030 and 468B.048 to 468B.085 to the extent they
affect water quality.
(9) Any agency or other unit of government requested by the
director to comment on an application for a permit under this
section must submit its comments to the director within 45 days
after receiving the request for comment. If an agency or other
unit of government fails to comment on the application within 45
days, the director shall assume the agency or other unit of
government has no objection and shall approve or deny the
application.
SECTION 21. ORS 459.108 is amended to read:
459.108. (1) A city or county may impose a civil penalty to
enforce the requirements of an ordinance that prohibits any
action or conduct described in ORS { - 164.775, - } 164.785
{ - or 164.805 - } .
(2) An ordinance described in subsection (1) of this section
may establish a maximum or minimum amount for the civil penalty
imposed under the ordinance for each violation. The total amount
of the civil penalty may be increased to include all of the costs
incurred by the city or county in removing the refuse or
offensive substance unlawfully placed on property and in
eliminating the effects of such unlawful placement.
(3) A civil penalty imposed for violation of an ordinance
prohibiting any action or conduct described in ORS
{ - 164.775, - } 164.785 { - or 164.805 - } shall be an
alternative to criminal enforcement of the ordinance. A city or
county that commences and maintains a civil action to collect
such a civil penalty from any person shall not cause a criminal
prosecution to be commenced or maintained against that person for
the same violation of the ordinance.
(4) When a city or county ordinance prohibits any action or
conduct that is described in ORS { - 164.775, - } 164.785
{ - or 164.805 - } , a name found on various items in a deposit
of rubbish or other solid waste placed on land or in water in
violation of the ordinance constitutes rebuttable evidence that
the person whose name appears on the items has violated the
ordinance. However, the rebuttable presumption created by this
subsection exists only when a name on items denotes ownership of
the items, such as the name of an addressee on an envelope.
SECTION 22. { + ORS 133.100, 164.775 and 164.805 are
repealed. + }
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