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 2001
House Bill 3216
Sponsored by COMMITTEE ON GENERAL GOVERNMENT AND REGULATORY
REFORM
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.
Requires Environmental Quality Commission to adopt dry cleaning
solvent abatement program. Provides immunity from civil liability
for certain violations under certain circumstances.
Imposes sales tax and use tax on dry cleaning solvent. Imposes
tax on dry cleaning businesses. Imposes tax on possession of dry
cleaning solvent.
Establishes Dry Cleaner Environmental Response Account.
Appropriates moneys from account to Department of Environmental
Quality for specified purposes.
Requires Department of Environmental Quality to develop
standards for dry cleaning solvent delivery systems. Requires
State Fire Marshal to adopt rules for emergency responses to
releases of solvent.
Becomes operative January 1, 1996.
A BILL FOR AN ACT
Relating to dry cleaning; and appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 21 of this Act:
(1) 'Dry Cleaner Environmental Response Account' means the
account created under section 7 of this Act.
(2) 'Dry cleaning facility' means any facility located in this
state engaged in dry cleaning operations, other than a:
(a) Facility located on a United States military base;
(b) Uniform service or linen supply facility; or
(c) Prison or other penal institution.
(3) 'Dry cleaning operations' means dry cleaning of apparel and
household fabrics for the general public, as described in
Standard Industrial Classification industry number 7216,
including but not limited to dry stores used for the pickup and
drop-off of dry cleaning at retail or wholesale.
(4) 'Dry cleaning solvent' means any chlorine-based or
hydrocarbon-based formulation or product that is used as a
cleaning agent in dry cleaning operations.
(5) 'Inactive dry cleaning facility' means properties formerly
used as dry cleaning facilities.
(6) 'Operator' means a person having a business license to
operate a dry cleaning facility or a business operation of which
a dry cleaning facility is a part. If a dry cleaning facility is
operated without a business license both the owner and any person
directing the operations shall be considered the operator and
shall be jointly and severally liable for the taxes and duties
imposed on operators.
(7) 'Retail sale or transfer' means a transfer of title or
possession, exchange or barter, conditional or otherwise, for a
purpose other than resale in the ordinary course of business. + }
SECTION 2. { + Except as provided under section 1 of this Act,
the definitions of ORS 465.200 shall apply to this Act. + }
SECTION 3. { + (1) On or before the 180th day following the
operative date of this section, the Environmental Quality
Commission shall adopt a dry cleaner solvent abatement program
that:
(a) Applies to active and inactive dry cleaning facilities
within this state;
(b) Provides for listing at the earliest practicable date all
active and inactive dry cleaning facilities within the state;
(c) Provides standards, methods and techniques for:
(A) Determining what removal or remedial action, if any, are
necessary and practicable to protect public health, safety,
welfare and the environment at facilities where releases of dry
cleaning solvent have been confined; and
(B) Conducting removal or remedial action, if necessary;
(d) Contains requirements for pollution prevention measures, as
required by section 5 of this Act; and
(e) Includes a plan for expending moneys from the Dry Cleaner
Environmental Response Account created under section 7 of this
Act for the following activities:
(A) Prioritization of dry cleaning facilities with confirmed
releases of dry cleaning solvent for removal or remedial action
if the action is necessary under the standards adopted by the
commission; and
(B) Removal or remedial action, if necessary under the
standards adopted by the commission.
(2) The standards, methods and techniques adopted by rule under
this section shall be cost-effective, reasonable, technically
feasible, based on reasonable expectations of future uses of the
facility and, to the extent practicable, generally applicable to
all active and inactive dry cleaning facilities in this state.
(3) The standards, methods and techniques adopted by rule under
this section may require extraction or treatment of groundwater
receiving a release of dry cleaning solvent only if the
groundwater is used or is reasonably expected to be used as a
drinking water supply source. Treatment of the groundwater shall
not be required or continued if treatment is unlikely to achieve
significant further reductions in dry cleaning solvent
concentrations.
(4) Dry cleaning facilities that are actively operating on the
operative date of this Act shall be listed under subsection
(1)(b) of this section within 180 days following adoption of the
abatement program. Inactive dry cleaning facilities shall be
listed when discovered by the Department of Environmental
Quality. + }
SECTION 4. { + (1) Except as provided under subsections (3),
(4) and (5) of this section, a person shall not be subject to any
administrative or judicial action to compel a removal or remedial
action or to recover remedial action costs caused by the release
or threatened release of dry cleaning solvent from an active or
inactive dry cleaning facility.
(2) Except as provided under subsections (3), (4) and (5) of
this section, a person shall not be liable under statutory,
common or administrative law for damage to real or personal
property or to natural resources if the damage is caused by the
release or threatened release of dry cleaning solvent from an
active or inactive dry cleaning facility, except upon proof that
the release of dry cleaning solvent was caused by the failure of
the person to exercise due care. Compliance with applicable
federal, state and local laws and regulations shall be prima
facie evidence that the person exercised due care.
(3) The exemptions from liability provided under this section
do not apply to a person that, on or after the operative date of
this section, owns or operates a facility unless the person has
substantially complied with all applicable federal and state
environmental laws and regulations, including but not limited to
the pollution prevention measures adopted by rule under section 5
of this Act.
(4) The exemption from liability provided under this section
does not apply to a person delivering or supplying dry cleaning
solvent to a dry cleaning facility and causing a release of dry
cleaning solvent by the facility as a result of violating a rule
adopted under section 5 (1)(g) of this Act.
(5) If hazardous substances are released as a result of both
the release of dry cleaning solvent from dry cleaning operations
and other activities, the exemption from liability provided under
this section shall apply only to that portion of the removal or
remedial action or damage caused by the release or threatened
release of dry cleaning solvent from the dry cleaning
operations. + }
SECTION 5. { + (1) On or before the 180th day following the
operative date of this section the Environmental Quality
Commission shall adopt rules establishing pollution prevention
measures for dry cleaners. The rules shall include:
(a) A requirement that all wastes containing chlorinated
solvents generated at any dry cleaning facility be managed as
hazardous wastes in accordance with federal and state laws
otherwise applicable to management of hazardous wastes, except
that section 4 of this Act shall apply rather than ORS 466.205;
(b) A prohibition on wastewater discharges from dry cleaning
machines or dry cleaning solvent discharges from dry cleaning
operations to any sanitary sewer or septic tank or to the waters
of this state;
(c) A prohibition on the operation of transfer-type dry
cleaning equipment utilizing perchloroethylene, to become
effective three years after the date of rule adoption;
(d) A requirement, to take effect immediately upon rule
adoption, that all newly installed dry cleaning systems utilizing
perchloroethylene be of the dry-to-dry type and be equipped with
integral refrigerated condensers for the control of
perchloroethylene emissions;
(e) A requirement that all existing dry cleaning systems
utilizing perchloroethylene install refrigerated condensers or an
equivalent within three years of the date of rule adoption;
(f) A requirement that every dry cleaning facility install
containment tanks capable of containing any leak, spill or
release of dry cleaning solvent under and around each machine or
item of equipment in which any dry cleaning solvent is utilized;
and
(g) A requirement, to become effective five years after the
date of rule adoption, that all perchloroethylene dry cleaning
solvent be delivered to dry cleaning facilities by means of
closed, direct-coupled delivery systems.
(2) The Department of Environmental Quality may authorize the
use of alternative measures in lieu of one or more of the
measures described under subsection (1) of this section upon
proof satisfactory to the department that the alternative
measures can provide equivalent protection for human health and
the environment and can achieve equivalent prevention of
pollution. + }
SECTION 6. { + (1) On or before the 180th day following the
operative date of this section, the State Fire Marshal shall
adopt rules for emergency response to releases of dry cleaning
solvent from dry cleaning facilities.
(2) The State Fire Marshal may enter and inspect a dry cleaning
facility at any reasonable hour for purposes of carrying out the
duties imposed by this section.
(3) Unless a release of dry cleaning solvent presents a need
for emergency response as a result of an imminent and substantial
hazard to public health, safety or welfare or to the environment,
the State Fire Marshal shall not undertake, or order any person
to undertake, response action at a dry cleaning facility.
(4) The State Fire Marshal shall notify the Department of
Environmental Quality of all dry cleaning solvent releases
reported to the State Fire Marshal. The State Fire Marshal may
bill the department in the manner allowed under ORS 453.382 for
the cost of emergency response services provided to a dry
cleaning facility. + }
SECTION 7. { + (1) The Dry Cleaner Environmental Response
Account is established within the General Fund of the State
Treasury. All moneys collected under sections 8 to 11 of this Act
and all interest earned on the moneys shall be paid into the
State Treasury and credited to the account.
(2) All moneys in the Dry Cleaner Environmental Response
Account are continuously appropriated to the Department of
Environmental Quality and, except as provided under this section,
shall be expended solely to pay the costs of the abatement
program established under section 3 of this Act or the costs of
emergency response under section 6 of this Act.
(3) The Department of Environmental Quality may utilize up to
five percent of account moneys for overhead and administrative
costs directly associated with the responsibilities of the
department under this Act.
(4) The department may reimburse the State Fire Marshal for
emergency response services billed under section 6 of this Act.
(5) If the department or the State Fire Marshal takes action at
a facility, location or area where hazardous substances have been
released as a result of both dry cleaning operations and other
activities, including but not limited to laundry operations,
account moneys shall be utilized only for that portion of the
removal, remedial action or emergency response costs necessitated
by the release of dry cleaning solvent by the dry cleaning
operations. + }
SECTION 8. { + (1) In addition to any other tax or fee imposed
by law, there is imposed on the privilege of operating an active
dry cleaning facility within this state an annual tax of:
(a) $500 for each store; and
(b) $1,000 for each other facility.
(2) The tax shall be due on the first day of each calendar year
that the facility operates as a dry cleaning facility and shall
be prorated for partial year operation. The tax shall only apply
to the operation of dry cleaning facilities on or after January
1, 1996. + }
SECTION 9. { + (1) In addition to any other tax or fee imposed
by law, a tax is imposed on the retail sale or transfer within
this state of dry cleaning solvent on or after January 1, 1996.
The tax shall be paid by the seller or transferor.
(2) The amount of tax on each gallon of dry cleaning solvent is
the result obtained from multiplying the solvent factor of the
dry cleaning solvent by the following tax rate:
(a) $12 for any retail sale or transfer in 1996.
(b) For any retail sale or transfer after 1996, 103 percent of
the sale or transfer tax rate applicable for the prior year,
rounded to the nearest cent.
(3) The solvent factor for each dry cleaning solvent is the
amount listed in the following table: + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
Dry CleaningSolventtFactor + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
Perchloroethylene 1.00
1,1,1-trichloroethane1.00
Any other solvent0.10 + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + (4) Notwithstanding subsections (1) and (2) of this
section, no tax shall be imposed on the sale or transfer of any
dry cleaning solvent if prior to the sale or transfer the
purchaser or transferee provides the seller or transferor with a
certificate stating that:
(a) The dry cleaning solvent will not be used in a dry cleaning
facility; or
(b) The purchaser or transferee does not operate a dry cleaning
facility. + }
SECTION 10. { + (1) In addition to any other tax or fee
imposed by law, a tax is imposed on the possession by a dry
cleaning operator on January 1, 1996, of dry cleaning solvent,
except for dry cleaning solvent in use in a dry cleaning system
or dry cleaning solvent held for resale, retransfer, export or
purposes other than dry cleaning. The tax imposed by this section
applies only to possession on the date specified.
(2) The amount of tax on each gallon is the result obtained
from multiplying the solvent factor set forth in section 9 (3) of
this Act by $12 per gallon.
(3) The tax imposed by this section is due and payable by
February 20, 1996. + }
SECTION 11. { + (1) In addition to any other tax or fee
imposed by law, a tax is imposed on the use of dry cleaning
solvent at a dry cleaning facility within this state if:
(a) The purchaser or transferee of the solvent did not receive
a bill or invoice showing the correct amount of tax imposed under
section 9 of this Act on the retail sale or transfer; or
(b) No tax was paid with respect to the retail sale or transfer
and the purchaser or transferee had reason to believe that no tax
would be paid.
(2) The amount of tax imposed by this section equals the tax
that should have been imposed on the retail sale or transfer of
the dry cleaning solvent by section 9 of this Act less the tax,
if any, shown on the bill or invoice.
(3) This section shall not apply to dry cleaning solvent taxed
under section 10 of this Act. + }
SECTION 12. { + (1) For a fraction of a gallon, the tax
imposed under section 9, 10 or 11 of this Act shall be
proportionate to the tax imposed on a whole gallon.
(2) If the tax is paid pursuant to section 9, 10 or 11 of this
Act on dry cleaning solvent that is subsequently resold or
exported from this state and not reimported for use in a dry
cleaning facility, the reseller or exporter of the dry cleaning
solvent is entitled to claim a refund or credit for the tax on
the dry cleaning solvent that was paid by the reseller or
exporter. The Department of Revenue may require a taxpayer
claiming a refund to provide proof that the tax was paid with
respect to the dry cleaning solvent and proof of its nontaxable
use or sale. + }
SECTION 13. { + (1) The taxes imposed by sections 9 and 11 of
this Act in any calendar quarter shall be due and payable on the
20th day of the month following the end of the calendar quarter.
The taxes imposed by sections 8 to 11 of this Act shall be
reported on forms supplied by the Department of Revenue.
(2) The department for good cause may extend for not to exceed
30 days the time for making any report or paying any amount of
tax required under sections 8 to 11 of this Act. The extension
may be granted at any time if a request therefor is filed with
the department on or before the due date of the report or tax
payment.
(3) Any person to whom an extension is granted shall pay, in
addition to the amount of tax, interest at the rate established
under ORS 305.220 for each month, or fraction thereof, from the
date on which the amount of tax would have been due without the
extension to the date of payment. + }
SECTION 14. { + (1) If the Department of Revenue is
dissatisfied with the report filed by any person, or if any
person fails to file a report, the department may compute and
determine the amount to be paid under sections 8 to 11 of this
Act upon the basis of any information available to it. One or
more deficiency determinations shall be made of the amount of tax
due for one or for more than one month.
(2) The amount of the determination, exclusive of penalties,
shall bear interest at the rate established under ORS 305.220 for
each month, or fraction thereof, from the 20th day after the
close of the month for which the amount of the tax, or any
portion thereof, should have been reported until the date of
payment.
(3) In making a determination the department may offset
overpayments for a month or months against underpayments for
another month or months and against the interest and penalties on
the underpayments.
(4) If any part of the deficiency for which a deficiency
determination is made is due to negligence or intentional
disregard of sections 8 to 11 of this Act or the rules adopted
under section 20 of this Act, a penalty of 10 percent of the
amount of the determination shall be added thereto.
(5) If any part of the deficiency for which a deficiency
determination is made is due to fraud or an intent to evade
sections 8 to 11 of this Act or the rules adopted under section
20 of this Act, a penalty of 25 percent of the amount of the
determination may be added thereto.
(6) The department shall give the person written notice of its
determination. The notice may be served personally or by
certified mail; if by mail, service shall be made to the person
at the address of the person as it appears in the records of the
department, but the service shall be deemed complete at the time
of deposit of the notice in the mail.
(7) Except in the case of fraud, intent to evade the tax or
failure to make a report, every notice of a deficiency
determination shall be given within three years after the date
when the amount should have been reported. + }
SECTION 15. { + (1) If the Department of Revenue believes that
the collection of any amount of tax required to be paid by any
person under sections 8 to 11 of this Act will be jeopardized by
delay, it shall thereupon make a determination of the amount of
tax, noting that fact in the determination. The amount determined
is immediately due and payable, with interest and penalty as
provided in sections 13 and 14 of this Act.
(2) If the amount of the tax, interest and penalty specified in
the jeopardy determination is not paid within 20 days after
service upon the person of notice of the determination, the
determination becomes final, unless a petition for
redetermination is filed within the 20 days.
(3) The person against whom a jeopardy determination is made
may petition for the redetermination thereof pursuant to section
17 of this Act. The person shall, however, file the petition for
redetermination with the department within 20 days after the
service upon the person of notice of the determination.
(4) The person shall at the time of filing the petition for
redetermination deposit with the department such security as it
may deem necessary to ensure compliance with this section and
sections 8 to 11, 13 and 14 of this Act. The security may be sold
by the department at public sale if necessary in order to recover
any amount due. Notice of the sale may be served upon the person
who deposited the security personally or by mail in the same
manner as prescribed for service of notice by section 14 (6) of
this Act. Upon any such sale, the surplus, if any, above the
amount due under this section and sections 8 to 11, 13 and 14 of
this Act shall be returned to the person who deposited the
security. + }
SECTION 16. { + (1) If any tax imposed by sections 8 to 11 of
this Act or any portion of such tax is not paid within 30 days
after notice of a deficiency determination is given under section
14 of this Act or of a tax determined under section 15 of this
Act, and no provision is made to secure the payment thereof by
bond, deposit or otherwise, pursuant to rules adopted by the
Department of Revenue, the department shall:
(a) Assess a collection charge of $5 if the sum of the tax,
penalty and interest then due exceeds $10.
(b) Issue a warrant directed to the sheriff of any county of
the state commanding the sheriff to levy upon and sell the real
and personal property of the taxpayer found within that county,
for the payment of the amount of the tax, with the added
penalties, interest, collection charge and the sheriff's cost of
executing the warrant, and to return such warrant to the
department and pay to it the money collected by virtue thereof by
a time to be therein specified, not less than 60 days from the
date of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof,
and thereupon the clerk shall enter in the County Clerk Lien
Record the name of the taxpayer mentioned in the warrant, and the
amount of the tax or portion thereof and penalties and interest
for which the warrant is issued and the date when such copy is
recorded. Thereupon the amount of the warrant so recorded shall
become a lien upon the title to and interest in property of the
taxpayer against whom it is issued in the same manner as a
judgment duly docketed. The sheriff thereupon shall proceed upon
the same in all respects, with like effect and in the same manner
prescribed by law in respect to executions issued against
property upon judgment of a court of record, and shall be
entitled to the same fees for services in executing the warrant,
to be added to and collected as a part of the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
authorized to collect income taxes, and in the execution thereof
the agent shall have all the powers conferred by law upon
sheriffs, but is entitled to no fee or compensation in excess of
actual expenses paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the taxpayer as if the people of the state had
recovered judgment against the taxpayer for the amount of the
tax. + }
SECTION 17. { + (1) Any person aggrieved by an act or
determination of the Department of Revenue or its authorized
agent under sections 8 to 11 or 13 to 16 of this Act may appeal
to the director of the department and from the department's order
to the Oregon Tax Court in the manner provided in ORS chapter
305. The appeal rights provided by this section shall be the
exclusive remedy available to determine the liability of the
person for the taxes imposed by sections 8 to 11 of this Act.
(2) An appeal to the department or to the Oregon Tax Court
under sections 8 to 11 or 13 to 16 of this Act shall not stay
proceedings to collect any unpaid tax if the department believes
the collection of the tax will be jeopardized by delay, unless
the court orders otherwise. + }
SECTION 18. { + (1) The failure to do any act required by or
under the provisions of sections 8 to 11 or 13 to 16 of this Act
shall be deemed an act committed in part at the office of the
Department of Revenue in Salem, Oregon.
(2) The certificate of the department to the effect that a tax
has not been paid, that a return has not been filed or that
information has not been supplied, as required by or under the
provisions of sections 8 to 11 or 13 to 16 of this Act, shall be
prima facie evidence that such tax has not been paid, that the
return has not been filed or that the information has not been
supplied. + }
SECTION 19. { + In addition to all other remedies specified in
sections 14 to 16 of this Act, action may be brought by the
Attorney General, at the instance of the Department of Revenue,
in the name of the state, to recover the amount of any taxes,
penalties and interest due under sections 8 to 11 or 13 to 16 of
this Act, if the action for recovery is commenced within three
years from the time the tax is due to be paid. + }
SECTION 20. { + (1) The Department of Revenue shall enforce
the provisions of sections 8 to 16 of this Act and may prescribe,
adopt and enforce rules relating to the administration and
enforcement of sections 8 to 16 of this Act.
(2) The department may employ accountants, auditors,
investigators, assistants and clerks necessary for the efficient
administration of sections 8 to 16 of this Act and may designate
representatives to conduct hearings or perform any other duties
imposed upon the department by sections 8 to 16 of this Act. + }
SECTION 21. { + (1) Except as otherwise specified under this
Act, the provisions of this Act shall become operative on January
1, 1996.
(2) The taxes imposed by sections 8, 9 and 11 of this Act are
repealed on the date that the Department of Environmental Quality
declares the completion of removal and remedial action at all
facilities with confirmed releases of dry cleaning solvent.
However, if the declaration by the department occurs on or before
December 31, 2005, the taxes under sections 8, 9 and 11 of this
Act shall be repealed on December 31, 2005.
(3) The Director of the Department of Environmental Quality and
the Director of the Department of Revenue are authorized to take
any actions and expend any authorized and available appropriation
prior to January 1, 1996, necessary to carry out the purposes of
this Act.
(4) The immunity granted by section 4 of this Act shall apply
retroactively to causes of action arising prior to the operative
date of this Act and to any administrative or judicial action
pending on the operative date of this Act.
(5) If any provision of this Act or its application to any
person or circumstance is held invalid, the remainder of this Act
shall remain in full force and effect. + }
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