Chapter 466 — Hazardous Waste and Hazardous Materials II

 

2013 EDITION

 

HAZARDOUS WASTE AND HAZARDOUS MATERIALS II

 

PUBLIC HEALTH AND SAFETY

 

STORAGE, TREATMENT AND DISPOSAL OF HAZARDOUS WASTE AND PCB

 

(General Provisions)

 

466.005     Definitions for ORS 453.635 and 466.005 to 466.385

 

466.010     Purpose

 

(Administration)

 

466.015     Powers and duties of department

 

466.020     Rules and orders

 

466.025     Duties of commission

 

466.030     Designation of classes of facilities subject to certain provisions

 

466.035     Commission authority to impose standards for hazardous waste or PCB at Oregon facility

 

466.040     Application period for PCB or hazardous waste permit

 

466.045     Application form; contents; fees; renewal application; rules

 

466.050     Citizen advisory committees

 

466.055     Criteria for new facility

 

466.060     Criteria to be met by owner and operator before issuance of permit

 

466.065     Applicant for renewal to comply with ORS 466.055 and 466.060; exceptions; permit conditions; rules

 

466.067     Modification of PCB or hazardous waste permit to allow recycling operation; fee

 

(Hazardous Waste)

 

466.068     Technical assistance and information program for generators of hazardous waste; rules

 

466.069     Hazardous Waste Technical Assistance Fund; uses; limitations

 

466.070     Standards for rules

 

466.075     Rules for generators of hazardous waste

 

466.077     Fee for generators of hazardous waste to obtain identification number

 

466.080     Rules for transportation of hazardous waste

 

466.086     Gaining federal authorization; rules

 

466.090     Inspection and copying of records authorized; exceptions

 

466.095     Hazardous waste to be stored or treated at permitted site; exemptions

 

466.100     Disposal of waste restricted; permit required

 

466.105     Duties of permittee

 

466.107     Action under ORS 466.105 against guarantor

 

466.110     Application; form

 

466.115     Required application information

 

466.120     Required application information to operate site

 

466.125     Notice of hearings on applications

 

466.130     Public hearing in areas of proposed site required

 

466.135     Recommendations by state agencies on applications; effect

 

466.140     Review of applications; issuance

 

466.145     Review of treatment applications; issuance

 

466.150     Permit requirements

 

466.153     Exemption from state or local laws for sale or deeding of land

 

466.155     Acquisition by condemnation

 

466.160     Site permit fees; disposition; withdrawal by permittee

 

466.165     Annual fees; use

 

466.168     Annual fee for used oil processor

 

466.170     Revocation of permit; judicial review

 

466.175     Disposition of site or facility after revocation; acquisition of site by department

 

466.180     Department authority to limit storage, disposal or treatment

 

466.185     Investigation upon complaint; hearings; orders

 

466.190     Investigation upon motion of department; findings and orders

 

466.195     Monitoring and surveillance program; inspection

 

466.200     Procedure for emergencies

 

466.205     Liability for improper disposal of waste; costs; lien for department expenditures

 

466.208     Requirement to reimburse department for costs associated with implementing corrective action

 

466.210     Actions or proceedings to enforce compliance

 

466.215     Post-closure permit for disposal site; rules; fee

 

466.225     Monitoring site; access

 

(PCB Disposal Facilities)

 

466.250     Definition of “PCB disposal facility”

 

466.255     Disposal of PCB restricted; permit required for PCB disposal facility

 

466.260     Duties of department

 

466.265     Rules for regulation of PCB disposal

 

466.270     Criteria for rules; study of disposal methods

 

466.275     Permit application for PCB disposal facility

 

466.280     Copies of application to be sent to affected state agencies

 

466.285     Notice of hearings on application

 

466.290     Public hearing in area of proposed facility required

 

466.295     Examination of applications; recommendation to commission; decision as to issuance; notice to applicant

 

466.300     Restrictions on commission authority to issue permit

 

466.305     Investigation of complaints; hearing; order

 

466.310     Monitoring, inspection and surveillance program; access to facility and records

 

466.315     Procedure for emergency

 

466.320     Conditions for holding permit

 

466.325     Annual fee

 

466.330     Acquisition by state of real property for disposal of PCB

 

466.335     Consequences of revocation

 

466.340     Restrictions on treatment or disposal of PCB at facility

 

466.345     PCB facility permit fee

 

466.350     Post-closure permit; fee

 

466.355     Interstate cooperation regarding toxics use and hazardous waste reduction programs

 

466.357     Requirements for certain generators of hazardous waste

 

NOTICE OF ENVIRONMENTAL HAZARDS

 

466.360     Policy

 

466.365     Commission authority to establish sites for which notice is required; rulemaking; report to Legislative Assembly

 

466.370     Notice to owner; hearing; filing of notice if no objection

 

466.375     Filing of notice; content of notice

 

466.380     Interagency agreement for notices for radioactive waste disposal sites

 

466.385     Amendment of comprehensive plan and land use regulations; model language; appeal of land use decision related to site requiring notice

 

USE OF PCB

 

466.505     Definitions for ORS 466.505 to 466.530

 

466.510     Sale of items containing concentrations of PCB prohibited; rules; exceptions

 

466.515     Electric transformers or capacitors exempted; rules

 

466.520     Exemption certificates; applications; conditions

 

466.525     Additional PCB compounds may be prohibited by rule

 

466.530     Prohibited disposal of waste containing PCB

 

SPILL RESPONSE AND CLEANUP OF HAZARDOUS MATERIALS

 

466.605     Definitions for ORS 466.605 to 466.680

 

466.610     Department authority relating to cleanup of oil or hazardous material

 

466.615     Limit on commission and department authority over radioactive substances

 

466.620     Emergency response plan

 

466.625     Rulemaking

 

466.630     Commission designation of substance as hazardous material; rules

 

466.635     Report of spill or release of reportable quantity of hazardous material

 

466.640     Strict liability for spill or release; exceptions

 

466.645     Cleanup; failure to complete cleanup

 

466.670     Oil and Hazardous Material Emergency Response and Remedial Action Fund

 

466.675     Use of moneys in Oil and Hazardous Material Emergency Response and Remedial Action Fund

 

466.680     Responsibility for expenses of cleanup; record; treble damages; order; appeal

 

OIL STORAGE TANKS

 

(General Provisions)

 

466.706     Definitions for ORS 466.706 to 466.882 and 466.994

 

466.710     Application of ORS 466.706 to 466.882 and 466.994

 

466.715     Legislative findings

 

(Administration)

 

466.720     Statewide underground storage tank program; federal authorization; rules

 

466.725     Limitation on local government regulation

 

466.727     Prohibition on local government tax, fee or surcharge

 

466.730     Delegation of program administration to state agency or local government by agreement

 

466.735     Cooperation with Department of Consumer and Business Services and State Fire Marshal

 

466.740     Noncomplying installation prohibited

 

466.743     Training on operation, maintenance and testing; rules

 

466.746     Commission rules; considerations

 

(Licenses; Permits)

 

466.750     License procedure for persons servicing underground tanks

 

466.760     When permit required; who required to sign application

 

466.765     Duty of owner or permittee of underground storage tank

 

466.770     Corrective action required on contaminated site

 

466.775     Grounds for refusal, modification, suspension or revocation of permit

 

466.780     Variance upon petition

 

(Finance)

 

466.783     Installation fee; permit modification fee

 

466.785     Annual storage tank fee; late payment fee

 

466.787     Annual service provider fee; biennial supervisor fee

 

466.791     Underground Storage Tank Compliance and Corrective Action Fund; sources; uses

 

466.795     Underground Storage Tank Insurance Fund

 

466.800     Records as public records; exceptions

 

(Enforcement)

 

466.805     Site inspection; subpoena or warrant

 

466.810     Investigation on noncompliance; findings and orders; decommissioning tank; hearings; other remedies

 

466.815     Financial responsibility of owner or permittee; rules; legislative review

 

466.820     Reimbursement to department; procedure for collection; treble damages

 

466.825     Strict liability of owner or permittee

 

466.830     Halting tank operation upon clear and immediate danger

 

466.835     Compliance and correction costs as lien; enforcement

 

466.837     Noncompliance penalties for specific underground storage tank violations; waiver of right to appeal; advisory committee; rules

 

(Financial Assistance Programs)

 

466.840     Legislative findings

 

466.845     Commission authority to accept and expend moneys received for financial assistance programs

 

(Heating Oil Tanks)

 

466.858     Heating oil tank regulatory program; license to provide heating oil tank services; certification of corrective action

 

466.862     License required to provide heating oil tank services

 

466.868     Licensing requirements; annual fee; registry of licensees; revocation of license

 

466.872     Certification of voluntary decommissioning or approval of corrective action; fee

 

466.878     Required actions when use of underground heating oil tank is terminated; requirements at time of sale of real property containing abandoned heating oil tank

 

466.882     Rules

 

UNDERGROUND STORAGE TANKS HOLDING AIRCRAFT OR MARINE FUEL

 

466.901     Definitions for ORS 466.901 to 466.915

 

466.903     Financial assistance program for fuel tanks holding aircraft or marine fuel; application; fees

 

466.905     Eligibility for financial assistance; amount of grants

 

466.907     Rules

 

466.910     Sources of funds; disposition

 

466.913     Fuel Tank Compliance and Corrective Action Fund

 

466.915     Memorandum of understanding with State Marine Board or Department of Transportation

 

466.917     Priority of financial assistance granted by Director of Transportation

 

466.920     Priority for distribution of funds by State Marine Board

 

CIVIL PENALTIES

 

466.990     Civil penalties generally

 

466.992     Civil penalties for damage to wildlife resulting from contamination of food or water supply

 

466.994     Civil penalties for violations of underground storage tank regulations

 

CRIMINAL PENALTIES

 

466.995     Criminal penalties

 

STORAGE, TREATMENT AND DISPOSAL OF HAZARDOUS WASTE AND PCB

 

(General Provisions)

 

      466.005 Definitions for ORS 453.635 and 466.005 to 466.385. As used in ORS 453.635 and 466.005 to 466.385 and 466.992, unless the context requires otherwise:

      (1) “Commission” means the Environmental Quality Commission.

      (2) “Department” means the Department of Environmental Quality.

      (3) “Director” means the Director of the Department of Environmental Quality.

      (4) “Dispose” or “disposal” means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous waste into or on any land or water so that the hazardous waste or any hazardous constituent thereof may enter the environment or be emitted into the air or discharged into any waters of the state as defined in ORS 468B.005.

      (5) “Facility” means all contiguous land, structures, other appurtenances and improvements on the land used for treating, storing or disposing of hazardous waste. “Facility” may consist of one or more treatment, storage or disposal operational units.

      (6) “Generator” means the person, who by virtue of ownership, management or control, is responsible for causing or allowing to be caused the creation of a hazardous waste.

      (7) “Hazardous waste” does not include radioactive material or the radioactively contaminated containers and receptacles used in the transportation, storage, use or application of radioactive waste, unless the material, container or receptacle is classified as hazardous waste under paragraph (a), (b) or (c) of this subsection on some basis other than the radioactivity of the material, container or receptacle. Hazardous waste does include all of the following which are not declassified by the commission under ORS 466.015 (3):

      (a) Discarded, useless or unwanted materials or residues resulting from any substance or combination of substances intended for the purpose of defoliating plants or for the preventing, destroying, repelling or mitigating of insects, fungi, weeds, rodents or predatory animals, including but not limited to defoliants, desiccants, fungicides, herbicides, insecticides, nematocides and rodenticides.

      (b) Residues resulting from any process of industry, manufacturing, trade or business or government or from the development or recovery of any natural resources, if such residues are classified as hazardous by order of the commission, after notice and public hearing. For purposes of classification, the commission must find that the residue, because of its quantity, concentration, or physical, chemical or infectious characteristics may:

      (A) Cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or

      (B) Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

      (c) Discarded, useless or unwanted containers and receptacles used in the transportation, storage, use or application of the substances described in paragraphs (a) and (b) of this subsection.

      (8) “Hazardous waste disposal site” means a geographical site in which or upon which hazardous waste is disposed.

      (9) “Hazardous waste storage site” means the geographical site upon which hazardous waste is stored.

      (10) “Hazardous waste treatment site” means the geographical site upon which or a facility in which hazardous waste is treated.

      (11) “Manifest” means the form used for identifying the quantity, composition, and the origin, routing and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment or storage.

      (12) “PCB” has the meaning given that term in ORS 466.505.

      (13) “Person” means the United States, the state or a public or private corporation, local government unit, public agency, individual, partnership, association, firm, trust, estate or any other legal entity.

      (14) “Store” or “storage” means the containment of hazardous waste either on a temporary basis or for a period of years, in a manner that does not constitute disposal of the hazardous waste.

      (15) “Transporter” means any person engaged in the transportation of hazardous waste by any means.

      (16) “Treat” or “treatment” means any method, technique, activity or process, including but not limited to neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize the waste or so as to render the waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. [Formerly 459.410; 1987 c.540 §4]

 

      466.010 Purpose. (1)(a) The Legislative Assembly finds that it is in the interest of public health and safety and environment to protect Oregon citizens from the potential harmful effects of the transportation and treatment or disposal of hazardous waste and PCB within Oregon.

      (b) Therefore, the Legislative Assembly declares that it is the purpose of ORS 466.005 to 466.385 and 466.992 to:

      (A) Protect the public health and safety and environment of Oregon to the maximum extent possible;

      (B) Exercise the maximum amount of control over actions within Oregon relating to hazardous waste and PCB transportation and treatment or disposal;

      (C) Limit to the extent possible the treatment or disposal of hazardous waste and PCB in Oregon to materials originating in the states that are parties to the Northwest Interstate Compact on Low-Level Radioactive Waste Management under ORS 469.930; and

      (D) Limit to the extent possible the size of any hazardous waste or PCB treatment or disposal facility in Oregon to a size equal to the amount of waste and PCB originating in Oregon, Washington, Idaho and Alaska of the type handled by such a treatment or disposal facility.

      (2) The Legislative Assembly further finds and declares that in the interest of public health and safety and to protect the environment, it is the policy of the State of Oregon to give priority in managing hazardous waste in Oregon to methods that reduce the quantity and toxicity of hazardous waste generated before using methods that reuse hazardous waste, recycle hazardous waste that cannot be reused, treat hazardous waste or dispose of hazardous waste by landfilling. [1985 c.670 §3; 1987 c.540 §4a; 1989 c.833 §95]

 

(Administration)

 

      466.015 Powers and duties of department. The Department of Environmental Quality shall:

      (1) Provide for the administration, enforcement and implementation of ORS 466.005 to 466.385 and 466.992 and may perform all functions necessary:

      (a) To insure the proper management of hazardous waste by generators;

      (b) For the regulation of the operation and construction of hazardous waste treatment, storage and disposal sites; and

      (c) For the permitting of hazardous waste treatment, storage and disposal sites in consultation with the appropriate county governing body or city council.

      (2) Coordinate and supervise all functions of state and local governmental agencies engaged in activities subject to the provisions of ORS 466.005 to 466.385 and 466.992.

      (3) After notice and public hearing pursuant to ORS chapter 183, declassify as hazardous waste those substances described in ORS 466.005 (7) which the Environmental Quality Commission finds, after deliberate consideration, taking into account the public health, welfare or safety or the environment, have been properly treated or decontaminated or contain a sufficiently low concentration of hazardous material so that such substances are no longer hazardous. [Formerly 459.430; 1987 c.540 §5]

 

      466.020 Rules and orders. In accordance with applicable provisions of ORS chapter 183, the Environmental Quality Commission shall:

      (1) Adopt rules and issue orders thereon, including but not limited to establishing minimum requirements for the treatment, storage and disposal of hazardous wastes, minimum requirements for operation, maintenance, monitoring, reporting and supervision of treatment, storage or disposal sites, and requirements and procedures for selection of such sites.

      (2) Adopt rules and issue orders thereon relating to the procedures of the Department of Environmental Quality to hearings, filing of reports, submission of plans and the issuance, revocation and modification of permits issued under ORS 466.005 to 466.385 and 466.992.

      (3) Adopt rules and issue orders thereon to classify as hazardous waste those residues defined in ORS 466.005 (7)(b).

      (4) Adopt rules and issue orders thereon relating to reporting by generators of hazardous waste concerning type, amount and disposition of such hazardous waste and waste minimization activities. Rules may be adopted exempting certain classes of generators from such requirements.

      (5) Adopt rules and issue orders relating to the transportation of hazardous waste by air or water.

      (6) Adopt rules and issue orders relating to the production, marketing, distribution, transportation and burning of fuels containing or derived from hazardous waste.

      (7) Adopt rules and issue orders relating to corrective action, including corrective action within the facility or beyond the facility boundary if necessary to protect public health or the environment, for all releases of hazardous waste or constituents of hazardous waste occurring from locations within the facility or originating within the facility and releasing beyond the facility boundary, from any hazardous waste treatment, storage or disposal facility, regardless of the time the hazardous waste was placed in the facility.

      (8) Adopt rules and issue orders relating to the restriction or prohibition of nonhazardous liquid waste in a hazardous waste disposal site.

      (9) Adopt rules necessary to implement the certification requirements of ORS 466.357. [Formerly 459.440; 1987 c.540 §6; 1989 c.833 §112]

 

      466.025 Duties of commission. In order to carry out the provisions of ORS 466.005 to 466.385 and 466.992, the Environmental Quality Commission shall:

      (1) Limit the number of facilities disposing of or treating hazardous waste or PCB;

      (2) Establish classes of hazardous waste or PCB that may be disposed of or treated;

      (3) Designate the location of a facility designed to dispose of or treat hazardous waste or PCB; and

      (4) Limit to the extent otherwise allowed by law, the hazardous waste or PCB accepted for treatment or disposal at a facility first to hazardous waste or PCB originating in Oregon, or if the capacity of the facility as established under ORS 466.055 allows, or it is necessary for the commission to receive and maintain state authorization of a hazardous waste regulatory program under P.L. 94-580 and P.L. 98-616, to states that are parties to the Northwest Interstate Compact on Low-Level Radioactive Waste Management as set forth in ORS 469.930. [1985 c.670 §4]

 

      466.030 Designation of classes of facilities subject to certain provisions. The Environmental Quality Commission may, by rule, designate classes of facilities designed to treat or dispose of hazardous waste or PCB that shall be subject to the provisions of ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.320. [1985 c.670 §8]

 

      466.035 Commission authority to impose standards for hazardous waste or PCB at Oregon facility. The Environmental Quality Commission may impose specific standards for the range and type of hazardous waste or PCB treated or disposed of at a facility in order to protect the public health and safety and environment of Oregon. [1985 c.670 §9]

 

      466.040 Application period for PCB or hazardous waste permit. Whenever the Environmental Quality Commission finds there is a need for an additional hazardous waste or PCB treatment or disposal facility according to the criteria established in ORS 466.055, the commission shall establish an application period during which persons may apply for a PCB disposal facility permit according to the provisions of ORS 466.260 to 466.285 or a hazardous waste disposal facility permit under ORS 466.005 to 466.385 and 466.992. [1985 c.670 §10; 1987 c.540 §16]

 

      466.045 Application form; contents; fees; renewal application; rules. (1) Upon request, the Department of Environmental Quality shall furnish an application form to any person interested in developing or constructing a hazardous waste or PCB treatment or disposal facility or a hazardous waste storage facility. Each such form shall contain:

      (a) The name and address of the applicant.

      (b) A statement of financial condition of the applicant, including assets, liabilities and net worth.

      (c) The experience of the applicant in construction, management, supervision or development of hazardous waste or PCB treatment or disposal facilities and in the handling of such substances.

      (2) The department shall also require the submission of such information relating to the construction, development or establishment of a proposed hazardous waste or PCB treatment or disposal site and facilities to be operated in conjunction therewith, and such additional information, data and reports as it deems necessary to make a decision on granting or denying a permit.

      (3) If the application is for a new permit to operate a new hazardous waste or PCB treatment or disposal facility or a new hazardous waste storage facility, the applicant shall pay a fee as determined under subsection (5)(a) of this section to cover the department’s costs in investigating and processing the application. Any portion of the fee that exceeds the department’s costs shall be refunded to the applicant.

      (4) If the application is for the renewal of an existing permit, the applicant shall pay a fee as determined under subsection (5)(a) of this section to cover the department’s costs in investigating and processing the renewal application. Under no circumstances shall the renewal fee exceed a total of $150,000. Any portion of the fee that exceeds the department’s costs shall be refunded to the applicant.

      (5) The Environmental Quality Commission by rule:

      (a) Shall specify chargeable elements, rates and other appropriate mechanisms and procedures for determining the costs of new and renewal permit processing as set forth in subsections (3) and (4) of this section.

      (b) Shall specify a cost recovery mechanism for reimbursing the costs of the department associated with the implementation of corrective action required under ORS 466.105.

      (c) Shall adopt a schedule of fees to defray the department’s costs incurred during the processing of treatment, storage or disposal permit modifications.

      (d) May adopt a schedule of fees to defray the costs of the department incurred in investigating and processing applications for hazardous waste declassifications under ORS 466.015, hazardous waste delistings and petitions for universal waste listings.

      (6) For fees or funding mechanisms adopted or applied under subsections (3) to (5) of this section, the fee structure or recovery mechanism shall reflect as accurately as possible, and be limited to, the costs of services and regulatory activities provided by the department to the category of payers incurring fees or the party assessed cost recovery.

      (7) For funding mechanisms adopted or applied under subsections (3) to (5) of this section other than fee schedules adopted by the commission, the commission shall require the department to provide to any party so assessed:

      (a) A good faith estimate of the total projected costs prior to the commencement of the activity for which costs will be accrued;

      (b) A detailed accounting of all costs subsequently incurred; and

      (c) A description of the reasons for any discrepancy between projected and assessed costs at the time the department becomes aware that such a discrepancy has occurred or is likely to occur.

      (8) All fees received under this section are continuously appropriated to the department for payment of the department costs in carrying out the activity for which the fees were received. [1985 c.670 §11; 1987 c.540 §17; 1997 c.576 §1]

 

      466.050 Citizen advisory committees. (1) To aid and advise the Director of the Department of Environmental Quality and the Environmental Quality Commission in the selection of a hazardous waste or PCB treatment or disposal facility or the site of such facility, the director shall establish citizen advisory committees as the director considers necessary. The director shall determine the representation, membership, terms and organization of the committees and shall appoint their members. The director or a designee shall be a nonvoting member of each committee.

      (2) The advisory committees appointed under subsection (1) of this section shall review applications during an application period established under ORS 466.040 and make recommendations on the applications to the commission. [1985 c.670 §12]

 

      466.055 Criteria for new facility. Before issuing a permit for a new facility designed to dispose of or treat hazardous waste or PCB, the Environmental Quality Commission must find, on the basis of information submitted by the applicant, the Department of Environmental Quality or any other interested party, that the proposed facility meets the following criteria:

      (1) The proposed facility location:

      (a) Is suitable for the type and amount of hazardous waste or PCB intended for treatment or disposal at the facility;

      (b) Provides the maximum protection possible to the public health and safety and environment of Oregon from release of the hazardous waste or PCB stored, treated or disposed of at the facility; and

      (c) Is situated sufficient distance from urban growth boundaries, as defined in ORS 197.295, to protect the public health and safety, accessible by transportation routes that minimize the threat to the public health and safety and to the environment and sufficient distance from parks, wilderness and recreation areas to prevent adverse impacts on the public use and enjoyment of those areas.

      (2) Subject to any applicable standards adopted under ORS 466.035, the design of the proposed facility:

      (a) Allows for treatment or disposal of the range of hazardous waste or PCB as required by the commission; and

      (b) Significantly adds to:

      (A) The range of hazardous waste or PCB handled at a treatment or disposal facility currently permitted under ORS 466.005 to 466.385; or

      (B) The type of technology employed at a treatment or disposal facility currently permitted under ORS 466.005 to 466.385.

      (3) The proposed facility uses the best available technology for treating or disposing of hazardous waste or PCB as determined by the department or the United States Environmental Protection Agency.

      (4) The need for the facility is demonstrated by:

      (a) Lack of adequate current treatment or disposal capacity in Oregon, Washington, Idaho and Alaska to handle hazardous waste or PCB generated by Oregon companies;

      (b) A finding that operation of the proposed facility would result in a higher level of protection of the public health and safety or environment; or

      (c) Significantly lower treatment or disposal costs to Oregon companies.

      (5) The proposed hazardous waste or PCB treatment or disposal facility has no major adverse effect on either:

      (a) Public health and safety; or

      (b) Environment of adjacent lands. [1985 c.670 §5; 1987 c.540 §18; 1989 c.833 §96]

 

      466.060 Criteria to be met by owner and operator before issuance of permit. (1) Before issuing a permit for a facility designed to treat or dispose of hazardous waste or PCB, the permit applicant must demonstrate, and the Environmental Quality Commission must find, that the owner and operator meet the following criteria:

      (a) The owner, any parent company of the owner and the operator have adequate financial and technical capability to properly construct and operate the facility; and

      (b) The compliance history of the owner including any parent company of the owner and the operator in owning and operating other similar facilities, if any, indicates an ability and willingness to operate the proposed facility in compliance with the provisions of ORS 466.005 to 466.385 and 466.992 or any condition imposed on the permittee by the commission.

      (2) If requested by the permit applicant, information submitted as confidential under subsection (1)(a) of this section shall be maintained confidential and exempt from public disclosure to the extent provided by Oregon law. [1985 c.670 §7; 1987 c.540 §19; 1989 c.833 §97]

 

      466.065 Applicant for renewal to comply with ORS 466.055 and 466.060; exceptions; permit conditions; rules. As a condition to the issuance of a renewal permit under ORS 466.005 to 466.385 and 466.992, the Environmental Quality Commission may require the applicant to comply with all or some of the criteria set forth in ORS 466.055 and 466.060, except that any application for a renewal permit for a treatment or disposal facility located off the site of waste generation and operating on July 15, 1999, shall not have to comply with ORS 466.055 and 466.060 unless the applicant proposes a different type of treatment or disposal than has been authorized for use at any time at the facility. In issuing any renewal permit for such a facility, the commission shall include in the permit conditions that require all of the following:

      (1) The facility is limited to acceptance of hazardous waste or PCB for treatment or disposal in an amount not to exceed 110 percent of the amount of hazardous waste or PCB treated or disposed by the facility under any permit. The Department of Environmental Quality shall approve acceptance of a greater amount of hazardous waste or PCB for treatment or disposal as part of a permit renewal or modification process if the applicant demonstrates that a greater amount of hazardous waste or PCB is necessary either to protect or to provide a higher level of protection of the public health and safety or of the environment.

      (2) The facility complies with all applicable federal and Oregon technological requirements for treating and disposing of hazardous waste or PCB.

      (3) The facility meets property line setback requirements established by the commission by rule.

      (4) The facility owner, any parent company of the owner and the operator comply with all applicable Oregon and federal requirements for financial and technical capability to properly construct and operate the facility.

      (5) The facility owner or operator owns or contracts with an emergency response provider or coordinator that can provide for timely response to a spill or release in Oregon of hazardous waste or PCB being transported to the facility by a motor vehicle owned by the owner or operator of the facility.

      (6) Any person hired by the owner or operator of the facility to transport hazardous waste or PCB to the facility owns or has a contract with an emergency response provider or coordinator that can provide for timely response to a spill or release in Oregon of hazardous waste or PCB being transported by a motor vehicle to the facility.

      (7) Upon arrival at the facility of any motor vehicle transporting hazardous waste or PCB not described in subsection (5) or (6) of this section, the owner or operator of the facility shall request to review the transporter’s authorization to transport hazardous waste or PCB in Oregon and the driver’s authorization to drive a motor vehicle transporting hazardous waste or PCB in Oregon. The owner or operator of the facility shall report to the department the name of any transporter or driver failing to demonstrate authorization. [1985 c.670 §6; 1987 c.540 §20; 1999 c.740 §4]

 

      466.067 Modification of PCB or hazardous waste permit to allow recycling operation; fee. (1) The Department of Environmental Quality may issue a permit modification under ORS 466.005 to 466.385 authorizing a recycling operation at a hazardous waste or PCB treatment or disposal facility located off the site of waste generation and operating on July 15, 1999, and shall not apply ORS 466.055 or 466.060, provided the owner or operator of the facility obtains a determination from the department that, in accordance with the Federal Resource Conservation and Recovery Act, P.L. 94-580, and the Hazardous and Solid Waste Amendments of 1984, P.L. 98-616 as amended, the recycling operation is legitimate and will produce material that is exempt from the definition of solid waste.

      (2) The department shall apply the schedule of fees authorized by ORS 466.045 (5)(c) and (d) to defray the costs of processing the application for authorization for permit modification and making the determination under subsection (1) of this section. [1999 c.740 §3]

 

(Hazardous Waste)

 

      466.068 Technical assistance and information program for generators of hazardous waste; rules. (1) The Department of Environmental Quality shall implement a technical assistance and information program for generators of hazardous waste. The program shall include but need not be limited to:

      (a) Direct, on-site assistance;

      (b) Coordination with industry trade associations;

      (c) Information clearinghouse activities;

      (d) Publications and workshops; and

      (e) Other activities related to technical assistance.

      (2) Technical assistance services provided under this section shall not result in inspections or other enforcement actions unless there is reasonable cause to believe there exists a clear and immediate danger to the public health and safety or to the environment. The Environmental Quality Commission may develop rules to carry out the intent of this subsection. [1991 c.721 §5; 2003 c.654 §5]

 

      466.069 Hazardous Waste Technical Assistance Fund; uses; limitations. (1) The Hazardous Waste Technical Assistance Fund is established in the State Treasury, separate and distinct from the General Fund. Interest earned on the Hazardous Waste Technical Assistance Fund shall be credited to the fund.

      (2) Moneys in the Hazardous Waste Technical Assistance Fund are continuously appropriated to the Department of Environmental Quality to implement ORS 466.068.

      (3) The department may not expend more than 15 percent of the moneys in the fund to pay for the department’s administrative and personnel costs in implementing ORS 466.068. [2003 c.654 §2]

 

      466.070 Standards for rules. (1) In adopting rules under ORS 466.020 regulating the disposal of hazardous wastes, including, but not limited to, rules for the operation and maintenance of hazardous waste disposal sites, the Environmental Quality Commission shall provide for the highest and best practicable disposal of the hazardous wastes in a manner that will minimize:

      (a) The possibility of a dangerous uncontrolled reaction, the release of leachate, noxious gases or odors, fire, explosion or the discharge of the hazardous wastes; and

      (b) The amount of land used for burial of the hazardous wastes.

      (2) The Department of Environmental Quality shall investigate and analyze in detail the disposal methods and procedures required to be adopted by rule under ORS 466.020 and subsection (1) of this section and shall report its findings and recommendations to the commission. [Formerly 459.442]

 

      466.075 Rules for generators of hazardous waste. (1) The Environmental Quality Commission may, by rule, require generators of hazardous waste to:

      (a) Identify themselves to the Department of Environmental Quality, list the location and general characteristics of their activity and name the hazardous waste generated;

      (b) Keep records that accurately identify the quantities of such hazardous waste, the constituents thereof, the disposition of such waste and waste minimization activities;

      (c) Furnish information on the chemical composition of such hazardous waste to persons transporting, treating, storing or disposing of such waste;

      (d) Use a department approved manifest system to assure that all such hazardous waste generated is destined for treatment, storage or disposal in treatment, storage or disposal facilities (other than facilities on the premises where the waste is generated) which are operating pursuant to lawful authority;

      (e) Submit reports to the department setting out quantities of hazardous waste generated during a given time period, the disposition of all such waste and waste minimization activities;

      (f) Comply with specific waste management standards; and

      (g) Minimize the amount or toxicity of hazardous waste generated.

      (2) The generator of a hazardous waste shall be allowed to store a hazardous waste produced by that generator on the premises of that generator for a term not to exceed that set by rule without obtaining a hazardous waste storage site permit. This shall not relieve any generator from complying with any other rule or standard regarding storage of hazardous waste.

      (3) The commission by rule may exempt certain classes or types of hazardous waste generators from part or all of the requirements upon generators adopted by the commission. Such an exemption can only be made if the commission finds that, because of the quantity, concentration, methods of handling or use of a hazardous waste, such a class or type of generator is not likely either:

      (a) To cause or significantly contribute to an increase in serious irreversible or incapacitating reversible illness; or

      (b) To pose a substantial present or potential threat to human health or the environment.

      (4) The commission by rule may provide for a special permit for the treatment of hazardous waste on the premises of a generator. Such a special permit may be established only if such treatment has no major adverse impact on:

      (a) Public health and safety; or

      (b) The environment of adjacent lands. [Formerly 459.445; 1987 c.540 §7]

 

      466.077 Fee for generators of hazardous waste to obtain identification number. (1) Generators of hazardous waste who are required to obtain a United States Environmental Protection Agency identification number from the Department of Environmental Quality pursuant to 40 C.F.R. 262.12 shall pay to the department a one-time processing fee of $200 at the time of submitting an application for the identification number.

      (2) Fees paid under this section are continuously appropriated to the department to pay the costs of implementing ORS 466.005 to 466.385. [2003 c.654 §3]

 

      466.080 Rules for transportation of hazardous waste. In adopting rules governing transportation of any hazardous wastes for which a permit is required, the Department of Transportation or the State Department of Agriculture must consult with and consider the recommendations of the Department of Environmental Quality prior to the adoption of any such rules. Transporters shall be required to deliver hazardous wastes to a site named in the manifest provided for in ORS 466.005 to 466.385, 466.990 (1) and (2) and 466.992, or to an alternative site approved by the department. [Formerly 459.450; 1993 c.422 §22]

 

      466.085 [Formerly 459.455; repealed by 1987 c.540 §53 (466.086 enacted in lieu of 466.085)]

 

      466.086 Gaining federal authorization; rules. (1) The Environmental Quality Commission and the Department of Environmental Quality are authorized to perform or cause to be performed any act necessary to gain interim and final authorization of a hazardous waste regulatory program under the provisions of the Federal Resource Conservation and Recovery Act, P.L. 94-580 and the Hazardous and Solid Waste Amendments of 1984, P.L. 98-616 as amended, and federal regulations and interpretive and guidance documents issued pursuant to the Federal Resource Conservation and Recovery Act.

      (2) The commission may adopt, amend or repeal any rule or license and the commission or department may enter into any agreement necessary to implement this section. [1987 c.540 §54 (enacted in lieu of 466.085)]

 

      466.090 Inspection and copying of records authorized; exceptions. (1) Except as provided in subsection (2) of this section, any information filed or submitted pursuant to ORS 466.005 to 466.385 and 466.992 shall be made available for public inspection and copying during regular office hours of the Department of Environmental Quality at the expense of any person requesting copies.

      (2) Unless classified by the Director of the Department of Environmental Quality as confidential, any records, reports or information obtained under ORS 466.005 to 466.385 and 466.992 shall be available to the public. Upon a showing satisfactory to the director by any person that records, reports or information, or particular parts thereof, if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the director shall classify as confidential such record, report or information, or particular part thereof. However, such record, report or information may be disclosed to other officers, employees or authorized representatives of the state concerned with carrying out ORS 466.005 to 466.385 and 466.992 or when relevant in any proceeding under ORS 466.005 to 466.385 and 466.992.

      (3) Records, reports and information obtained or used by the department or the Environmental Quality Commission in administering the state hazardous waste program under ORS 466.005 to 466.385 and 466.992 shall be available to the United States Environmental Protection Agency and the federal Agency for Toxic Substances and Disease Registry, upon request. If the records, reports or information has been submitted to the state under a claim of confidentiality, the state shall make that claim of confidentiality to the Environmental Protection Agency and the Agency for Toxic Substances and Disease Registry for the requested records, reports or information. The federal agencies shall treat the records, reports or information that is subject to the confidentiality claim as confidential in accordance with applicable federal law. [Formerly 459.460; 1987 c.540 §8]

 

      466.095 Hazardous waste to be stored or treated at permitted site; exemptions. (1) Except as provided in ORS 466.075 (2), no person shall:

      (a) Store a hazardous waste anywhere in this state except at a permitted hazardous waste treatment, storage or disposal site;

      (b) Establish, construct or operate a hazardous waste storage site in this state without obtaining a hazardous waste storage site permit issued pursuant to ORS 466.005 to 466.385, 466.990 (1) and (2) and 466.992; or

      (c) Establish, construct or operate a hazardous waste treatment site in this state without obtaining a hazardous waste treatment site permit issued under ORS 466.005 to 466.385 and 466.992.

      (2) The Environmental Quality Commission may exempt certain classes of hazardous waste storage or treatment sites from part or all of the permitting requirements for these sites. Such an exemption can only be made if the commission finds that, because of the quantity, concentration or type of waste or duration of storage, such a class of storage or treatment site is not likely to endanger the public health, welfare or safety or the environment.

      (3) If the Director of the Department of Environmental Quality finds an emergency condition to exist, the director may authorize the short-term storage or treatment of a hazardous waste anywhere in the state as long as such temporary storage or treatment shall not constitute a hazard to public health, welfare or safety or to the environment. [Formerly 459.505; 1987 c.540 §9; 1993 c.422 §23]

 

      466.100 Disposal of waste restricted; permit required. (1) Except as provided in subsection (3) of this section, no person shall dispose of any hazardous waste anywhere in this state except at a hazardous waste disposal site permitted pursuant to ORS 466.110 to 466.170.

      (2) No person shall establish, construct or operate a disposal site without a permit therefor issued pursuant to ORS 466.005 to 466.385 and 466.992.

      (3) The Department of Environmental Quality may authorize disposal of specified hazardous wastes at specified solid waste disposal sites operating under department permit issued pursuant to ORS 459.205 to 459.385. Such authorization may be granted only under procedures approved by the Environmental Quality Commission, which shall include a determination by the department that such disposal will not pose a threat to public health, welfare or safety or to the environment. [Formerly 459.510; 1987 c.540 §21; 1993 c.560 §103]

 

      466.105 Duties of permittee. Each hazardous waste storage or treatment site permittee shall be required to do the following as a condition to holding the permit:

      (1) Maintain records of any hazardous waste identified pursuant to provisions of ORS 466.005 to 466.385, 466.990 (1) and (2) and 466.992 which is stored or treated at the site and the manner in which such waste was stored or treated, transported and disposed of.

      (2) Report periodically to the Department of Environmental Quality on types and volumes of wastes received, their manner of disposition and waste minimization activities for any hazardous waste generated on the premises.

      (3) Participate in the manifest system designed by the department.

      (4) Maintain current contingency plans to minimize damage from spillage, leakage, explosion, fire or other accidental or intentional event.

      (5) Maintain sufficient liability insurance or equivalent financial assurance in such amounts as determined by the department to be reasonably necessary to protect the environment and the health, safety and welfare of the people of this state.

      (6) Assure that all personnel who are employed by the permittee are trained in proper procedures for handling, transfer, transport, treatment and storage of hazardous waste including, but not limited to, familiarization with all contingency plans.

      (7) Maintain other plans and exhibits and take other actions pertaining to the site and its operation as determined by the department to be reasonably necessary to protect the public health, welfare or safety or the environment.

      (8) Restore, to the extent reasonably practicable, the site to its original condition when use of the area is terminated.

      (9) Maintain a cash bond or other equivalent financial assurance in the name of the state in an amount estimated by the department to be sufficient to cover any costs of closing the site, including corrective actions, and monitoring it or providing for its security after closure and to secure performance of all permit requirements. The financial assurance shall remain available for the duration of the permit and until the site is closed, except to the extent it is released or modified by the department.

      (10) Provide corrective action, including corrective action within the facility or beyond the facility boundary when determined by the department to be necessary to protect public health, welfare, safety or the environment, for all releases of hazardous wastes or constituents of hazardous waste, occurring from locations within the facility or originating within the facility and releasing beyond the facility boundary, regardless of the time the hazardous waste was placed at the facility. The department shall provide to the permittee a written directive for the necessary corrective action. [Formerly 459.517; 1987 c.540 §10; 1993 c.422 §24]

 

      466.107 Action under ORS 466.105 against guarantor. (1) If a permittee is in bankruptcy, reorganization, or arrangement under the Federal Bankruptcy Code or if, with reasonable diligence, jurisdiction in any state court or any federal court cannot be obtained over a permittee likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility is required under ORS 466.105 (5) and (9) may be asserted directly against the guarantor providing the evidence of financial responsibility. In an action under this section, the guarantor shall be entitled to all rights and defenses that would have been available to the permittee if the action had been brought against the permittee and that would have been available to the guarantor if the action had been brought against the guarantor by the permittee.

      (2) The total liability of any guarantor shall be limited to the aggregate amount the guarantor has provided as evidence of financial responsibility to the permittee under ORS 466.105 (5) or (9). Nothing in this section shall be construed to limit any other state or federal statutory, constructual or common law liability of a guarantor to a permittee including, but not limited to, the liability of a guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim.

      (3) As used in this section, “guarantor” means any person other than the permittee, who provides evidence of financial responsibility for a permittee under ORS 466.105 (5) or (9). [1987 c.540 §3]

 

      466.110 Application; form. (1) The Department of Environmental Quality shall furnish an application form to anyone who wishes to operate a hazardous waste storage or treatment site.

      (2) In addition to information requested on the application form, the department shall also require the submission of such information relating to the construction, development or establishment of a proposed hazardous waste storage or treatment site and facilities to be operated in conjunction therewith and such additional information, data and reports as it deems necessary to make a decision on granting or denying a license. [Formerly 459.535; 1987 c.540 §22]

 

      466.115 Required application information. Permit applications submitted to the Department of Environmental Quality for managing, operating, constructing, developing or establishing a hazardous waste disposal site must contain the following:

      (1) The management program for the operation of the site, including the person to be responsible for the operation of the site and a resume of the qualifications of the person, the proposed method of disposal, the proposed method of pretreatment or decontamination upon the site, if any, and the proposed emergency measures to be provided at such site.

      (2) A description of the size and type of facilities to be constructed upon the site, including the height and type of fencing to be used, the size and construction of structures or buildings, warning signs, notices and alarms to be used, the type of drainage and waste treatment facilities and maximum capacity of such facilities, the location and source of each water supply to be used and the location and the type of fire control facilities to be provided at such site.

      (3) A preliminary engineering sketch and flow chart showing proposed plans and specifications for the construction and development of the site and the waste treatment and water supply facilities, if any, to be used at such site.

      (4) The exact location and place where the applicant proposes to operate and maintain the site, including the legal description of the lands included within such site.

      (5) A preliminary geologist’s survey report indicating land formation, location of water resources and direction of the flows thereof and the opinion of the geologist relating to possible sources of contamination of such water resources.

      (6) The names and addresses of the applicant’s current or proposed insurance carriers, including copies of insurance policies then in effect. [Formerly 459.540; 1987 c.540 §23]

 

      466.120 Required application information to operate site. Applications for a permit to operate a hazardous waste storage or treatment site shall include at a minimum:

      (1) The name and address of the applicant and the exact location of the proposed storage or treatment site.

      (2) Estimates with respect to compositions, quantities and concentrations of any hazardous waste identified under ORS 466.005 to 466.385, 466.990 (1) and (2) and 466.992, and the time, frequency or rate at which such hazardous waste may be received, stored, treated, transported or disposed.

      (3) A description of the operational plan for the site, including handling methods, storage or treatment methods, hours and days of operation and a preliminary engineering sketch showing layout of the site, location of water supply and drainage facilities and traffic flow.

      (4) A description of security measures at the site including, but not limited to, type, height and location of fencing, manner for controlling access to the site, alarm systems and warning signs.

      (5) The name of any person who will be responsible for managing the operation of the site and a statement of the qualifications of such persons.

      (6) The name of the liability insurance carrier who will provide coverage required in ORS 466.105. [Formerly 459.545; 1987 c.540 §24; 1993 c.422 §25]

 

      466.125 Notice of hearings on applications. (1) Prior to holding hearings on a hazardous waste disposal site permit application, the Environmental Quality Commission shall cause notice to be given in the county or counties where the proposed site is located in a manner reasonably calculated to notify interested and affected persons of the permit application.

      (2) The notice shall contain information regarding the approximate location of the site and the type and amount of materials intended for disposal at such site, and shall fix a time and place for a public hearing. In addition, the notice shall contain a statement that any person interested in or affected by the proposed site shall have opportunity to testify at the hearing. [Formerly 459.550; 1987 c.540 §25]

 

      466.130 Public hearing in areas of proposed site required. The Environmental Quality Commission shall conduct a public hearing in the county or counties where a proposed hazardous waste disposal site is located and may conduct hearings at such other places as the Department of Environmental Quality considers suitable. At the hearing the applicant may present the application and the public may appear or be represented in support of or in opposition to the application. [Formerly 459.560]

 

      466.135 Recommendations by state agencies on applications; effect. Upon receipt of an application for a hazardous waste disposal site permit, the Department of Environmental Quality shall cause copies of the application to be sent to affected state agencies, including the Oregon Health Authority, the Public Utility Commission, the State Fish and Wildlife Commission and the Water Resources Director. Each agency shall respond by making a recommendation as to whether the permit application should be granted. If the Oregon Health Authority recommends against granting the permit, the Environmental Quality Commission must refuse to issue the permit. Recommendation from other agencies shall be considered as evidence in determining whether to grant the permit. [Formerly 459.570; 1987 c.540 §26; 2009 c.595 §944]

 

      466.140 Review of applications; issuance. (1) The Department of Environmental Quality shall examine and review all hazardous waste disposal site permit applications submitted to it and make such investigations as it considers necessary, and make a recommendation to the Environmental Quality Commission as to whether to issue the permit.

      (2) After reviewing the department’s recommendations under subsection (1) of this section, the commission shall decide whether or not to issue the permit. It shall cause notice of its decision to be given to the applicant by certified mail at the address designated in the application. The decision of the commission is subject to judicial review under ORS 183.480. [Formerly 459.580; 1987 c.540 §27]

 

      466.145 Review of treatment applications; issuance. (1) The Department of Environmental Quality shall review and cause to be investigated all hazardous waste treatment site permit applications submitted to it.

      (2) After reviewing and investigating the application, the department shall decide whether or not to issue the permit. It shall cause notice of its decision to be given to the applicant by certified mail at the address designated in the application. The decision of the department is subject to review by the Environmental Quality Commission under the provisions of ORS chapter 183 governing contested cases. [Formerly 459.585; 1987 c.540 §28]

 

      466.150 Permit requirements. Each hazardous waste disposal site permittee under ORS 466.005 to 466.385 and 466.992 shall be required to do the following as a condition to holding the permit:

      (1) Proceed expeditiously with and complete the project in accordance with the plans and specifications approved therefor pursuant to ORS 466.005 to 466.385 and 466.992 and the rules adopted thereunder.

      (2) Commence operation, management or supervision of the hazardous waste disposal site on completion of the project and not to permanently discontinue such operation, management or supervision of the site without the approval of the Department of Environmental Quality.

      (3) Maintain sufficient liability insurance or equivalent financial assurance in such amounts as determined by the department to be reasonably necessary to protect the environment, and the health, safety and welfare of the people of this state.

      (4) Establish emergency procedures and safeguards necessary to prevent accidents and reasonably foreseeable risks.

      (5) Restore, to the extent reasonably practicable, the site to its original condition when use of the area is terminated as a site.

      (6) Maintain a cash bond or other equivalent financial assurance in the name of the state and in an amount estimated by the department to be sufficient to cover any costs of closing the site, including corrective actions, and monitoring it or providing for its security after closure and to secure performance of permit requirements. The financial assurance shall remain in effect for the duration of the permit and until the end of the post-closure period, except as the assurance may be released or modified by the department.

      (7) Report periodically on the volume of material received at the site, the fees collected therefor and waste minimization activities for any hazardous waste generated on the premises.

      (8) Maintain other plans and exhibits and take other actions pertaining to the site and its operation as determined by the department to be reasonably necessary to protect the public health, welfare or safety or the environment. [Formerly 459.590; 1987 c.284 §1; 1987 c.540 §11; 1999 c.740 §5]

 

      466.153 Exemption from state or local laws for sale or deeding of land. The requirements of ORS chapters 92, 195 and 197 and other state and local laws for the sale or deeding of land do not apply to:

      (1) Any portion of a hazardous waste disposal site deeded to the state as a condition of issuance of a hazardous waste disposal site license under ORS 466.150 (1) (1985 Replacement Part) that the state deeds back to the licensee.

      (2) Any real property deeded to the state as a condition of issuance of a PCB disposal facility license under ORS 466.320 (1) (1985 Replacement Part) that the state deeds back to the licensee. [1987 c.284 §5 and 1987 c.540 §55]

 

      Note: 466.153 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 466 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      466.155 Acquisition by condemnation. The Environmental Quality Commission may acquire real property for the disposal of hazardous wastes by instituting condemnation proceedings therefor to be conducted in accordance with ORS chapter 35. [Formerly 459.595]

 

      466.160 Site permit fees; disposition; withdrawal by permittee. (1) The hazardous waste treatment, storage or disposal site permit shall require a fee based either on the volume of material accepted at the site or a percentage of the fee collected, or both. The fees shall be calculated in amounts estimated to produce over the site use period a sum sufficient to:

      (a) Secure performance of permit requirements;

      (b) Close the site;

      (c) Provide for any monitoring or security of the site after closure; and

      (d) Provide for any remedial action by the state necessary after closure to protect the public health, welfare and safety and the environment.

      (2) The amount so paid shall be held in a separate account and when the amount paid in by the permittee together with the earnings thereon equals the amount of the financial assurance required under ORS 466.150 (6), the permittee shall be allowed to withdraw the financial assurance.

      (3) If the site is closed before the fees reach an amount equal to the financial assurance, appropriate adjustment shall be made and the reduced portion of the financial assurance may be withdrawn. [Formerly 459.600; 1987 c.284 §3; 1987 c.540 §12]

 

      466.165 Annual fees; use. (1) An annual fee may be required of every generator, air or water transporter and permittee under ORS 466.005 to 466.385 and 466.992. The fee shall be in an amount determined by the Environmental Quality Commission to be adequate, less any federal funds budgeted therefor by legislative action, to carry on the monitoring, inspection and surveillance program established under ORS 466.195 and to cover related administrative costs.

      (2) A generator assessed an annual fee established under subsection (1) of this section shall pay only that part of the annual fee that exceeds the amount paid in the previous calendar year under ORS 465.375 (3).

      (3) A generator assessed an annual fee under subsection (1) of this section shall pay to the Department of Environmental Quality, as part of the annual fee, an annual hazardous waste generation fee of $130 per metric ton of waste generated during the year. Notwithstanding the amount of waste generated during the year, the hazardous waste generation fee paid under this subsection may not exceed $32,500.

      (4) The limitation on the hazardous waste generation fee in subsection (3) of this section does not apply to late charges assessed by the department for failure to pay the hazardous waste generation fee by the due date.

      (5) Fees collected under this section are continuously appropriated to the department to pay the cost of carrying on the monitoring, inspection and surveillance program under ORS 466.195 and related administrative costs. [Formerly 459.610; 1987 c.540 §29; 1991 c.721 §3; 2003 c.654 §6; 2007 c.84 §1]

 

      466.168 Annual fee for used oil processor. The Environmental Quality Commission may require every used oil processor to pay an annual fee. The fee shall be in an amount determined by the Environmental Quality Commission to be adequate to carry out used oil processor technical assistance, monitoring and inspections necessary to implement the used oil management requirements adopted by the commission under ORS 459A.590 and 466.086. [1997 c.576 §4]

 

      Note: 466.168 was added to and made a part of 466.005 to 466.385 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      466.170 Revocation of permit; judicial review. The Environmental Quality Commission may revoke any permit issued under ORS 466.005 to 466.385 and 466.992 after public hearing upon a finding that the permittee has violated any provision of ORS 466.005 to 466.385 and 466.992 or rules adopted pursuant thereto or any material condition of the permit, subject to review under ORS chapter 183. [Formerly 459.620; 1987 c.540 §30]

 

      466.175 Disposition of site or facility after revocation; acquisition of site by department. (1) If the Environmental Quality Commission revokes a permit under ORS 466.170, the commission may:

      (a) Close an existing hazardous waste disposal site or facility; or

      (b) Direct the Department of Environmental Quality to acquire an existing facility or site for the disposal, storage or treatment of hazardous waste according to the provisions of subsection (2) of this section.

      (2) The department may, upon direction of the commission and upon payment of just compensation, acquire and own an existing facility or site for use in the disposal, storage or treatment of hazardous waste. In order to secure such a site, the commission may modify or waive any of the requirements of ORS chapter 459 and ORS 466.005 to 466.385, 466.990 (1) and (2) and 466.992, but not ORS 469.375 or 469.525, if it finds that such waiver or modification:

      (a) Is necessary to make operation of the facility or site economically feasible; and

      (b) Will not endanger the public health and safety or the environment. [Formerly 459.635; 1987 c.540 §31; 1993 c.422 §26; 1993 c.560 §104]

 

      466.180 Department authority to limit storage, disposal or treatment. (1) The Department of Environmental Quality may limit, prohibit or otherwise restrict the storage, treatment or disposal of any hazardous waste if appropriate to protect public health, welfare or safety or the environment or to prolong the useful life of a hazardous waste disposal site.

      (2) The department shall monitor the origin and volume of hazardous waste received at a hazardous waste treatment or disposal site and may curtail or reduce the volume of the wastes that may be accepted for disposal as necessary to prolong the useful life of the site.

      (3) The department may restrict or prohibit the disposal of nonhazardous liquid waste in a hazardous waste disposal site. [Formerly 459.640; 1987 c.540 §13]

 

      466.185 Investigation upon complaint; hearings; orders. (1) The Department of Environmental Quality shall investigate any complaint made to it by any person that the operation of any generator, air or water transporter or hazardous waste disposal, storage or treatment site is unsafe or that the operation is in violation of the provisions of ORS 466.005 to 466.385 and 466.992 or the rules adopted under ORS 466.005 to 466.385 and 466.992.

      (2) If, after making an investigation under subsection (1) of this section, the department is satisfied that sufficient grounds exist to justify a hearing upon the complaint, it shall give 10 days’ written notice of the time and place of the hearing and the matters to be considered at the hearing. A copy of the complaint shall be furnished by the department to the respondent. Both the complainant and the respondent are entitled to be heard, produce evidence and offer exhibits and to require the attendance of witnesses at the hearing.

      (3) An administrative law judge assigned from the Office of Administrative Hearings established under ORS 183.605 shall hear the matter. Within 30 days after the date of the hearing and after considering all evidence and testimony submitted, the Environmental Quality Commission shall make a specific order as it considers necessary. Any order issued by the commission under this subsection shall be subject to judicial review in the manner provided by ORS 183.480 for judicial review of orders in contested cases. The costs of reporting and of transcribing the hearing for the purpose of judicial review shall be paid by the party seeking judicial review. [Formerly 459.650; 1987 c.540 §32; 1999 c.849 §§93,94; 2003 c.75 §39]

 

      466.190 Investigation upon motion of department; findings and orders. (1) Whenever the Department of Environmental Quality believes that the operation of any hazardous waste generator, air or water transporter or disposal, storage or treatment site is unsafe, or in violation of ORS 466.005 to 466.385 and 466.992 or not in compliance with rules or orders, the department may, upon its own motion, investigate the operation of the site.

      (2) The department may, after it has made an investigation under subsection (1) of this section, without notice and hearing, make such findings and orders as it considers necessary from the results of its investigation.

      (3) The findings and orders made by the department under subsection (2) of this section may:

      (a) Require changes in operations conducted, practices utilized and operating procedures found to be in violation of ORS 466.005 to 466.385 and 466.992 or the rules adopted thereunder.

      (b) Require compliance with the provisions of the permit.

      (4) The department shall deliver a certified copy of all orders issued by it under subsection (2) of this section to the respondent or the respondent’s duly authorized representative at the address furnished to the department in the permit application. The order shall take effect 20 days after the date of its issuance, unless the respondent requests a hearing on the order before the Environmental Quality Commission before the 20-day period has expired. The request for a hearing shall be submitted in writing and shall include the reasons for requesting the hearing. At the conclusion of the hearing, the commission may affirm, modify or reverse the original order.

      (5) All hearings before the commission shall be in compliance with applicable provisions of ORS chapter 183. Judicial review of all orders entered after hearing or where no hearing is requested shall be in accordance with the applicable provisions of ORS chapter 183 for judicial review of contested cases. [Formerly 459.660; 1987 c.540 §33]

 

      466.195 Monitoring and surveillance program; inspection. (1) The Department of Environmental Quality shall establish and operate a monitoring, inspection and surveillance program over all hazardous waste generators, air or water transporters and disposal, storage and treatment sites or may contract with any qualified public or private agency to do so.

      (2) Any person who generates, stores, treats, transports, disposes of or otherwise handles or has handled hazardous waste, shall upon request of any officer, employee or representative of the department, furnish information relating to such waste and permit such person at all reasonable times to have access to and to copy all records relating to such waste.

      (3) For the purposes of enforcing the provisions of ORS 466.005 to 466.385, any officer, employee or representative of the department may:

      (a) Enter at reasonable times any establishment or other place where hazardous waste is or has been generated, stored, treated, disposed of or transported from; and

      (b) Inspect and obtain samples from any person of any such waste and samples of any containers or labeling for such waste. [Formerly 459.670; 1987 c.540 §14]

 

      466.200 Procedure for emergencies. (1) Whenever, in the judgment of the Department of Environmental Quality from the results of monitoring or surveillance of operation of any generator, air or water transporter or hazardous waste disposal, storage or treatment site, there is reasonable cause to believe that a clear and immediate danger to the public health, welfare or safety or to the environment exists from the continued operation of the site, without hearing or prior notice, the department shall order the operation of the site halted by service of the order on the site superintendent.

      (2) Within 24 hours after the order is served, the department must appear in the appropriate circuit court to petition for the equitable relief required to protect the public health, welfare or safety or the environment and may begin proceedings to revoke the permit if grounds for revocation exist. [Formerly 459.680; 1987 c.540 §34]

 

      466.205 Liability for improper disposal of waste; costs; lien for department expenditures. (1) Any person owning a facility which generates, treats, stores or disposes of and any person having the care, custody or control of a hazardous waste or a substance which would be a hazardous waste except for the fact that it is not discarded, useless or unwanted, who causes or permits any disposal of such waste or substance in violation of law or otherwise than as reasonably intended for normal use or handling of such waste or substance, including but not limited to accidental spills thereof, shall be liable for the damages to person or property, public or private, caused by such disposition.

      (2) It shall be the obligation of such person to collect, remove or treat such waste or substance immediately, subject to such direction as the Department of Environmental Quality may give.

      (3) If such person fails to collect, remove or treat such waste or substance when under an obligation to do so as provided by subsection (2) of this section, the department is authorized to take such actions as are necessary to collect, remove or treat such waste or substance.

      (4) The Director of the Department of Environmental Quality shall keep a record of all necessary expenses incurred in carrying out any cleanup projects or activities authorized under subsection (3) of this section, including reasonable charges for services performed and equipment and materials utilized.

      (5) Any person who fails to collect, remove or treat such waste or substance immediately, when under an obligation to do so as provided in subsection (2) of this section, shall be responsible for the necessary expenses incurred by the state in carrying out a cleanup project or activity authorized under subsections (3) and (4) of this section.

      (6) If the amount of state-incurred expenses under subsections (3) and (4) of this section are not paid to the department within 15 days after receipt of notice that such expenses are due and owing, the Attorney General, at the request of the director, shall bring an action in the name of the State of Oregon in any court of competent jurisdiction to recover the amount specified in the final order of the director.

      (7) All expenditures covered by this section and all penalties and damages for which a person is liable to the state under this chapter and ORS chapter 465 shall constitute a lien upon any real and personal property owned by such person.

      (8) The department shall file a claim of lien on real property to be charged with a lien under subsection (7) of this section with the recording officer of each county in which the real property is located and shall file a claim of lien on personal property to be charged with a lien under subsection (7) of this section with the Secretary of State. The lien shall attach and become enforceable on the date of such filing. The lien claim shall contain:

      (a) A statement of the demand;

      (b) The name of the person against whose property the lien attaches;

      (c) A description of the property charged with the lien sufficient for identification; and

      (d) A statement of the failure of the person to perform the cleanup or disposal, compliance and corrective action and pay penalties and damages as required.

      (9) A lien created by this section may be foreclosed by a suit on real and personal property in the circuit court in the manner provided by law for the foreclosure of other liens.

      (10) Nothing in this section shall affect the right of the state to bring an action against any person to recover all costs and damages for which the person is liable under the provisions of this chapter. [Formerly 459.685; 1987 c.540 §15]

 

      466.208 Requirement to reimburse department for costs associated with implementing corrective action. In accordance with the rules adopted by the Environmental Quality Commission under ORS 466.045 (5), the permittee, owner or operator shall be responsible for reimbursing the Department of Environmental Quality for the costs of the department associated with the implementation of corrective action. [1997 c.576 §3]

 

      466.210 Actions or proceedings to enforce compliance. Whenever it appears to the Department of Environmental Quality that any person is engaged or about to engage in any acts or practices which constitute a violation of ORS 466.005 to 466.385 and 466.992 or the rules and orders adopted thereunder or of the terms of the permit, without prior administrative hearing, the department may institute actions or proceedings for legal or equitable remedies to enforce compliance therewith or to restrain further violations thereof. [Formerly 459.690; 1987 c.540 §35]

 

      466.215 Post-closure permit for disposal site; rules; fee. (1) At the time a hazardous waste disposal site is closed, the person permitted under ORS 466.110 to 466.170 to operate the site, must obtain a post-closure permit from the Department of Environmental Quality.

      (2) A post-closure permit issued under this section must be maintained until the end of the post-closure period established by the Environmental Quality Commission by rule.

      (3) In order to obtain a post-closure permit the permittee must provide post-closure care which shall include at least the following:

      (a) Monitoring and security of the hazardous waste disposal site; and

      (b) Any remedial action necessary to protect the environment and the public health, welfare and safety.

      (4) The commission may by rule establish a post-closure permit application fee. [Formerly 459.695; 1987 c.540 §36]

 

      466.225 Monitoring site; access. (1) If the Department of Environmental Quality determines that the presence of hazardous waste at a facility or site at which hazardous waste is or has been stored, treated or disposed of, or that the release of hazardous waste from a hazardous waste storage, treatment or disposal facility or site may present a substantial hazard to human health or the environment, the department may order the owner or operator of the facility or site to conduct any monitoring, testing, analysis and reporting as the department considers necessary to determine the nature and extent of the hazard.

      (2) If a facility or site is not in operation at the time a determination is made under subsection (1) of this section and the department finds that the owner of the facility or site could not reasonably be expected to have actual knowledge of the presence of hazardous waste at the facility or site and of its potential for release, the department may order the most recent previous owner or operator of the facility or site, who could most reasonably be expected to have such actual knowledge, to carry out the actions required in subsection (1) of this section.

      (3) Within 30 days after the department issues an order under subsection (1) or (2) of this section, the person to whom the order is issued shall submit to the department a proposal for carrying out the required monitoring, testing, analysis and reporting. The department may require the person to carry out the monitoring, testing, analysis and reporting described in the proposal and in any modifications to the proposal that the department considers necessary to determine the nature and extent of the hazard.

      (4) If the department determines that an owner or operator is not able to conduct monitoring, testing, analysis or reporting required under subsection (1) or (2) of this section in a manner satisfactory to the department, or if the department considers any such action carried out by an owner or operator to be unsatisfactory, or if the owner or operator fails to comply with the order, or if the department initially cannot determine that there is an owner or operator able to conduct such monitoring, testing, analysis or reporting, the department may:

      (a)(A) Conduct any monitoring, testing or analysis that the department considers reasonable to determine the nature and extent of the hazard associated with the facility or site; or

      (B) Authorize another state agency, local authority or person to conduct the necessary monitoring, testing or analysis; and

      (b) Require, by order, the owner or operator to reimburse the department, state agency, local authority or person for the costs of conducting the monitoring, testing or analysis.

      (5) The department may not require an owner or operator to reimburse the department for the costs of any action carried out by the department under subsection (4) of this section if the department’s actions confirm the results of monitoring, testing, analyses or reporting conducted by an owner or operator under subsection (1) or (2) of this section.

      (6) Any order issued under this section shall be subject to the provisions set forth in ORS 466.190 and 466.200.

      (7) In order to carry out the provisions of this section, the owner or operator of the site or facility shall allow necessary access according to the requirements of ORS 466.195 to the department or any state agency, local authority or person conducting the monitoring, testing or analysis required under subsection (4)(a) of this section. [1987 c.540 §2]

 

(PCB Disposal Facilities)

 

      466.250 Definition of “PCB disposal facility.” As used in ORS 466.250, 466.255 (2) and (3) and 466.260 to 466.350, “PCB disposal facility” includes a facility for the treatment or disposal of PCB. [1985 c.670 §13]

 

      466.255 Disposal of PCB restricted; permit required for PCB disposal facility. (1) No new PCB disposal facility shall be constructed on or after January 1, 1985, without first complying with ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350.

      (2) No person shall treat or dispose of any PCB anywhere in this state except at a PCB disposal facility operating under a permit pursuant to ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350.

      (3) No person shall establish, construct or operate a PCB disposal facility without a permit therefor issued under ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350. [1985 c.670 §§14,43; 1987 c.540 §37]

 

      466.260 Duties of department. The Department of Environmental Quality shall:

      (1) Provide for the administration, enforcement and implementation of ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350 and may perform all functions necessary:

      (a) To regulate the operation and construction of a PCB disposal facility; and

      (b) For the permitting of a PCB disposal facility in consultation with the appropriate county governing body or city council.

      (2) Coordinate and supervise all functions of state and local governmental agencies engaged in activities subject to the provisions of ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350. [1985 c.670 §15; 1987 c.540 §38]

 

      466.265 Rules for regulation of PCB disposal. In accordance with applicable provisions of ORS chapter 183, the Environmental Quality Commission shall:

      (1) Adopt rules and issue orders, including but not limited to establishing minimum requirements for the disposal of PCB, minimum requirements for operation, maintenance, monitoring, reporting and supervision of disposal facilities, and requirements and procedures for selection of such facilities.

      (2) Adopt rules and issue orders relating to the procedures of the Department of Environmental Quality with respect to hearings, filing of reports, submission of plans and the issuance, revocation and modification of permits issued under ORS 466.005 to 466.385. [1985 c.670 §16; 1987 c.158 §88; 1987 c.540 §39]

 

      466.270 Criteria for rules; study of disposal methods. (1) In adopting rules under ORS 466.265 regulating the disposal of PCB including, but not limited to, rules for the operation and maintenance of a PCB disposal facility, the Environmental Quality Commission shall provide for the best practicable disposal of the PCB in a manner that will minimize the possibility of adverse effects on the public health and safety or environment.

      (2) The Department of Environmental Quality shall investigate and analyze in detail the disposal methods and procedures required to be adopted by rule under subsection (1) of this section and ORS 466.265 and shall report its findings and recommendations to the commission. [1985 c.670 §17]

 

      466.275 Permit application for PCB disposal facility. Permit applications submitted to the Department of Environmental Quality for managing, operating, constructing, developing or establishing a PCB disposal facility must contain the following:

      (1) The management program for the operation of the facility including the person to be responsible for the operation of the facility and a resume of the person’s qualifications, the proposed method of disposal, the proposed method of pretreatment or decontamination of the facility, if any, and the proposed emergency measures to be provided at the facility.

      (2) A description of the size and type of facility to be constructed, including the height and type of fencing to be used, the size and construction of structures or buildings, warning signs, notices and alarms to be used, the type of drainage and waste treatment facilities and maximum capacity of such facilities, the location and source of each water supply to be used and the location and the type of fire control facilities to be provided at the facility.

      (3) A preliminary engineering sketch and flow chart showing proposed plans and specifications for the construction and development of the disposal facility and the waste treatment and water supply facilities, if any, to be used at the facility.

      (4) The exact location and place where the applicant proposes to operate and maintain the PCB disposal facility, including the legal description of the lands included within the facility.

      (5) A geologist’s survey report indicating land formation, location of water resources and direction of the flows thereof and the geologist’s opinion relating to the potential of contamination of water resources including but not limited to possible sources of such contamination.

      (6) The names and addresses of the applicant’s current or proposed insurance carriers, including copies of insurance policies then in effect. [1985 c.670 §18; 1987 c.540 §40]

 

      466.280 Copies of application to be sent to affected state agencies. Upon receipt of an application for a PCB disposal facility permit, the Department of Environmental Quality shall cause copies of the application to be sent to affected state agencies, including the Oregon Health Authority, the Public Utility Commission, the State Fish and Wildlife Commission and the Water Resources Director. Each agency shall respond within the period specified by the Department of Environmental Quality by making a written recommendation as to whether the permit application should be granted. Recommendation from other agencies shall be considered in determining whether to grant the permit. [1985 c.670 §19; 1987 c.540 §41; 2009 c.595 §945]

 

      466.285 Notice of hearings on application. (1) Prior to holding hearings on a PCB disposal facility permit application, the Environmental Quality Commission shall cause notice to be given in the county or counties where the proposed facility is to be located in a manner reasonably calculated to notify interested and affected persons of the permit application.

      (2) The notice shall contain information regarding the approximate location of the facility and the type and amount of PCB intended for disposal at the facility, and shall fix a time and place for a public hearing. In addition, the notice shall contain a statement that any person interested in or affected by the proposed PCB disposal facility shall have opportunity to testify at the hearing. [1985 c.670 §20; 1987 c.540 §42]

 

      466.290 Public hearing in area of proposed facility required. The Environmental Quality Commission shall conduct a public hearing in the county or counties where a proposed PCB disposal facility is located and may conduct hearings at other places as the Department of Environmental Quality considers suitable. At the hearing the applicant may present the application and the public may appear or be represented in support of or in opposition to the application. [1985 c.670 §21]

 

      466.295 Examination of applications; recommendation to commission; decision as to issuance; notice to applicant. (1) At the close of the application period under ORS 466.040, the Department of Environmental Quality shall examine and review all PCB disposal facility permit applications submitted to the Environmental Quality Commission and make such investigations as the department considers necessary, and make a recommendation to the commission as to whether to issue the permit.

      (2) After reviewing the department’s recommendations under subsection (1) of this section, the commission shall decide whether or not to issue the permit. It shall cause notice of its decision to be given to the applicant by certified mail at the address designated in the application. The decision of the commission is subject to judicial review under ORS 183.480. [1985 c.670 §22; 1987 c.540 §43]

 

      466.300 Restrictions on commission authority to issue permit. The Environmental Quality Commission may not issue a permit under ORS 466.295 for any facility designed to dispose of PCB by incineration unless:

      (1) The facility is also equipped to incinerate hazardous waste; and

      (2) The applicant has received all federal and state licenses and permits required to operate a hazardous waste incinerator. [1985 c.670 §23; 1987 c.540 §44]

 

      466.305 Investigation of complaints; hearing; order.(1) The Department of Environmental Quality shall investigate any complaint made to it by any person that the operation of any PCB disposal facility is unsafe or that the operation is in violation of a condition of the operator’s permit or any provisions of ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.340 or the rules adopted under ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350. Upon receiving a complaint, the department shall furnish a copy of the complaint to the person holding the permit to operate the PCB disposal facility.

      (2) If, after making an investigation under subsection (1) of this section, the department is satisfied that sufficient grounds exist to justify a hearing upon the complaint, it shall give 10 days’ written notice of the time and place of the hearing and the matters to be considered at the hearing. Both the complainant and the respondent are entitled to be heard, produce evidence and offer exhibits and to require the attendance of witnesses at the hearing.

      (3) An administrative law judge assigned from the Office of Administrative Hearings established under ORS 183.605 shall hear the matter. Within 30 days after the date of the hearing and after considering all evidence and testimony submitted, the Environmental Quality Commission shall make a specific order as it considers necessary. Any order issued by the commission under this subsection shall be subject to judicial review in the manner provided by ORS 183.480 for judicial review of orders in contested cases. The costs of reporting and of transcribing the hearing for the purpose of judicial review shall be paid by the party seeking judicial review. [1985 c.670 §24; 1987 c.540 §45; 1999 c.849 §§96,97; 2003 c.75 §40]

 

      466.310 Monitoring, inspection and surveillance program; access to facility and records. The Department of Environmental Quality shall establish and operate a monitoring, inspection and surveillance program over all PCB disposal facilities or may contract with any qualified public or private agency other than the owner or permittee to do so. Owners and operators of a PCB disposal facility must allow necessary access to the PCB disposal facility and to its records, including those required by other public agencies, for the monitoring, inspection and surveillance program to operate. [1985 c.670 §25; 1987 c.540 §46]

 

      466.315 Procedure for emergency. (1) Whenever, in the judgment of the Department of Environmental Quality, there is reasonable cause to believe that a clear and immediate danger to the public health or safety or to the environment exists from the continued operation of the facility, without hearing or prior notice, the department shall order the operation of the facility halted by service of the order on the facility operator or an agent of the operator.

      (2) Within 24 hours after the order is served, the department must appear in the appropriate circuit court to petition for the equitable relief required to protect the public health or safety or the environment and may begin proceedings to revoke the permit if grounds for revocation exist. [1985 c.670 §26; 1987 c.540 §47]

 

      466.320 Conditions for holding permit. Each PCB disposal facility permittee under ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350 shall be required to do the following as a condition to holding the permit:

      (1) Proceed expeditiously with and complete the project in accordance with the plans and specifications approved and the rules adopted under ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350.

      (2) Commence operation, management or supervision of the PCB disposal facility on completion of the project and not to permanently discontinue the operation, management or supervision of the facility without the approval of the Department of Environmental Quality.

      (3) Maintain sufficient liability insurance or equivalent financial assurance in such amounts as determined by the department to be reasonably necessary to compensate for damage to the public health and safety and environment.

      (4) Establish emergency procedures and safeguards necessary to prevent accidents and reasonably foreseeable risks.

      (5) Restore, to the extent reasonably practicable, the area of the facility to its original condition when use of the area is terminated as a facility.

      (6) Maintain a cash bond or other equivalent financial assurance in the name of the state and in an amount estimated by the department to be sufficient to cover any costs of closing the facility and monitoring it or providing for its security after closure, to secure performance of permit requirements and to provide for any remedial action by the state necessary to protect the public health and safety and the environment following facility closure. The financial assurance shall remain on deposit for the duration of the permit and until the end of the post-closure period, except as the assurance may be released or modified by the department.

      (7) Report periodically to the department on the volume and types of PCB received at the facility, their manner of disposition and the fees collected therefor.

      (8) Maintain other plans and exhibits pertaining to the facility and its operation as determined by the department to be reasonably necessary to protect the public health or safety or the environment.

      (9) Maintain records of any PCB identified under provisions of ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350 which is stored, treated or disposed of at the facility and the manner in which the PCB was stored, treated, transported or disposed of. The records shall be retained for the period of time determined by the Environmental Quality Commission.

      (10) Assure that all personnel who are employed by the permittee are trained in proper procedures for handling, transfer, transport, treatment, disposal and storage of PCB including but not limited to familiarization with all contingency plans.

      (11) If disposal is by incineration, the facility must also incinerate a reasonable ratio of hazardous waste. [1985 c.670 §27; 1987 c.284 §2; 1987 c.540 §48]

 

      466.325 Annual fee. An annual fee may be required of every PCB disposal facility permittee under ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350. The fee shall be in an amount determined by the Environmental Quality Commission to be adequate to carry on the monitoring, inspection and surveillance program established under ORS 466.310 and to cover related administrative costs. All such fees are continuously appropriated to the Department of Environmental Quality to pay the cost of the program under ORS 466.310. [1985 c.670 §28; 1987 c.540 §49]

 

      466.330 Acquisition by state of real property for disposal of PCB. The Environmental Quality Commission may acquire real property for the disposal of PCB by instituting condemnation proceedings therefor to be conducted in accordance with ORS chapter 35. [1985 c.670 §29]

 

      466.335 Consequences of revocation. (1) If the Environmental Quality Commission revokes a PCB disposal facility permit under ORS 466.170, the commission may:

      (a) Close the existing PCB disposal site or facility; or

      (b) Direct the Department of Environmental Quality to acquire an existing facility or site for the disposal or treatment of PCB according to the provisions of subsection (2) of this section.

      (2) The department may, upon direction from the commission and after payment of just compensation, acquire and own an existing facility for use in the disposal of PCB. In order to secure such a facility, the commission may modify or waive any of the requirements of ORS chapter 459 and ORS 466.005 to 466.385, 466.990 (1) and (2) and 466.992, but not ORS 469.375 or 469.525, if the commission finds that waiver or modification:

      (a) Is necessary to make operation of the facility economically feasible; and

      (b) Will not endanger the public health and safety or the environment. [1985 c.670 §30; 1987 c.540 §50; 1993 c.422 §27; 1993 c.560 §105]

 

      466.340 Restrictions on treatment or disposal of PCB at facility. (1) The Department of Environmental Quality may limit, prohibit or otherwise restrict the treatment or disposal of PCB at a disposal facility if appropriate to protect public health and safety or the environment.

      (2) The department shall monitor the origin and volume of PCB received at a disposal facility acquired and regulated under ORS 466.335, and may curtail or reduce the volume of the PCB that may be accepted for disposal as necessary to:

      (a) Protect public health and safety or the environment; or

      (b) Assure that the operation of the facility is economically feasible.

      (3) The department shall not accept any PCB at a disposal facility owned by the state from a state that is not a party to the Northwest Interstate Compact on Low-Level Radioactive Waste Management as set forth in ORS 469.930. [1985 c.670 §31]

 

      466.345 PCB facility permit fee. (1) The PCB disposal facility permit shall require a fee based either on the volume of PCB accepted at the facility or a percentage of the fee collected, or both. The fees shall be calculated in amounts estimated to produce over the facility use period a sum sufficient to:

      (a) Secure performance of permit requirements;

      (b) Close the facility;

      (c) Provide for any monitoring or security of the facility after closure; and

      (d) Provide for any remedial action by the state necessary after closure to protect the public health and safety and the environment.

      (2) The amount so paid shall be held in a separate account and when the amount paid in by the permittee together with the earnings thereon equals the amount of the financial assurance required under ORS 466.320, the permittee shall be allowed to withdraw the financial assurance.

      (3) If the facility is closed before the fees reach an amount equal to the financial assurance, appropriate adjustment shall be made and the reduced portion of the financial assurance may be withdrawn. [1985 c.670 §32; 1987 c.284 §4; 1987 c.540 §51]

 

      466.350 Post-closure permit; fee. (1) At the time a PCB disposal facility is closed, the person permitted under ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350 to operate the facility must obtain a post-closure permit from the Department of Environmental Quality.

      (2) A post-closure permit issued under this section must be maintained until the end of the post-closure period established by the Environmental Quality Commission by rule.

      (3) In order to obtain a post-closure permit the permittee must provide post-closure care which shall include at least the following:

      (a) Monitoring and security of the PCB disposal facility; and

      (b) Any remedial action necessary to protect the public health and safety and environment.

      (4) The commission may by rule establish a post-closure permit application fee. [1985 c.670 §33; 1987 c.540 §52]

 

      466.355 Interstate cooperation regarding toxics use and hazardous waste reduction programs. (1) The Department of Environmental Quality shall work with representatives of the States of Washington, Idaho and Alaska to establish provisions in each state to assure that any generator disposing of hazardous waste or PCB at an Oregon hazardous waste or PCB disposal facility has implemented a toxics use reduction and hazardous waste reduction program substantially equivalent to any toxics use reduction and hazardous waste reduction program required of Oregon generators.

      (2) The department shall report to the appropriate legislative interim committee on the department’s progress in carrying out the purpose of subsection (1) of this section. [1989 c.833 §100]

 

      466.357 Requirements for certain generators of hazardous waste. Any person operating a hazardous waste or PCB disposal facility pursuant to a permit issued under ORS 466.005 to 466.385 shall not accept hazardous waste or PCB from an Oregon generator unless the generator first certifies that the generator has implemented a toxics use reduction and hazardous waste reduction program as required under Oregon law, or with respect to an out-of-state generator, the generator has certified compliance with the waste minimization requirements of section 224(a) of the Hazardous and Solid Waste Amendments of 1984, P.L. 98-616. [1989 c.833 §99]

 

NOTICE OF ENVIRONMENTAL HAZARDS

 

      466.360 Policy. (1) The Legislative Assembly finds that:

      (a) Disposal sites exist on certain lots or parcels of real property within Oregon that may restrict future land development or constitute a potential hazard to the health, safety and welfare of Oregon’s citizens, particularly if present or future owners use or modify the parcels without taking into consideration the use restrictions or environmental hazards posed by the former disposal activity.

      (b) Permits, licenses and approvals that have been or may be granted by the Environmental Quality Commission, the Department of Environmental Quality or the Energy Facility Siting Council authorizing disposal of waste upon real property protect the health, safety and welfare of Oregon citizens only if adequate notice of post-closure use restrictions is given to future purchasers of the real property.

      (c) Disposal sites created prior to regulation may be potentially hazardous if use restrictions are not imposed.

      (d) Proper precautions and maintenance cannot be taken and continued unless the location of the disposal site, the nature and extent of its potential hazard and use restrictions are known to cities and counties and those who own and occupy the property.

      (2) It is hereby declared to be the public policy of this state to give notice to local governments of potential hazardous disposal sites and to impose use restrictions on those sites. [1985 c.273 §2]

 

      466.365 Commission authority to establish sites for which notice is required; rulemaking; report to Legislative Assembly. (1) The Environmental Quality Commission may establish by rule adopted under ORS chapter 183:

      (a) A list of sites for which environmental hazard notices must be given and use restrictions must be imposed. The list shall be consistent with the policy set forth in ORS 466.360 and may include any of the following sites that contain potential hazards to the health, safety and welfare of Oregon’s citizens:

      (A) A land disposal site as defined by ORS 459.005;

      (B) A hazardous waste disposal site as defined by ORS 466.005;

      (C) A disposal site containing radioactive waste as defined by ORS 469.300; and

      (D) A facility.

      (b) The form and content of use restrictions to be imposed on the sites, which shall require at least that post-closure use of the site not disturb the integrity of the final cover, liners or any other components of any containment system or the function of the facility’s monitoring systems, unless the Department of Environmental Quality finds that the disturbance:

      (A) Will not increase the potential hazard to human health or the environment; or

      (B) Is necessary to reduce a threat to human health or the environment.

      (c) The form and content of the environmental hazard notices to be filed with cities and counties.

      (d) The circumstances allowing and procedures for removal or amendment of environmental hazard notices and use restrictions provided by the department.

      (e) Any other provisions the commission considers necessary for the department to accomplish the purpose of ORS 466.360 to 466.385.

      (2) Spills and releases cleaned up pursuant to ORS 466.205 and 468B.315 shall not be listed as sites to be regulated under subsection (1) of this section.

      (3) Before hearings on and adoption of rules under subsection (1) of this section, the department shall notify each person who owns a disposal site or an owner or operator of a facility of the rulemaking proceedings.

      (4) The department shall report to each Legislative Assembly on any site or facility for which environmental hazard notices and use restrictions have been amended or removed as provided by rule adopted under subsection (1)(d) of this section.

      (5) The commission shall not list a site, spill or release under subsection (1) of this section, if the commission finds that within 90 days of receipt of notice under subsection (3) of this section, the owner cleaned up the site, spill or release so it is no longer a potential hazard to the health, safety and welfare of Oregon’s citizens.

      (6) As used in this section, “facility” has the meaning given in ORS 465.200. [1985 c.273 §3; 1987 c.735 §25; 1991 c.480 §10]

 

      466.370 Notice to owner; hearing; filing of notice if no objection. (1) The Department of Environmental Quality shall notify by certified mail any person who owns a lot or parcel upon which a disposal site listed under ORS 466.365 exists. The notice shall:

      (a) Describe the disposal site and potentially hazardous environmental conditions;

      (b) Describe the use restrictions that will be imposed;

      (c) Explain that an environmental hazard notice will be sent to the appropriate city or county under ORS 466.375; and

      (d) Advise the person of the procedure for requesting a hearing under subsection (2) of this section.

      (2) If any person receiving notice under subsection (1) of this section objects to the use restrictions, the person may request a hearing before the Environmental Quality Commission. The request shall be in writing and must be submitted to the department within 20 days after the person receives the notice under subsection (1) of this section. The hearing shall be conducted according to the provisions for a contested case hearing in ORS 183.413 to 183.497.

      (3) If no hearing is requested within 20 days after receipt of the notice, the department shall file the environmental hazard notice with the appropriate city or county. [1985 c.273 §4]

 

      466.375 Filing of notice; content of notice. The Department of Environmental Quality shall file an environmental hazard notice with the city or county in which a site listed under ORS 466.365 (1) is located. The notice shall contain the following information:

      (1) A description of the lot or parcel upon which the disposal site is located;

      (2) The restrictions that apply to post-closure use of the property; and

      (3) Information regarding the potential environment hazards posed by the disposal site to assist the city or county in complying with ORS 466.385. [1985 c.273 §5]

 

      466.380 Interagency agreement for notices for radioactive waste disposal sites. The Department of Environmental Quality and the State Department of Energy shall enter into an interagency agreement providing for the implementation of the provisions of ORS 466.360 to 466.385 relating to radioactive waste disposal sites. [1985 c.273 §6]

 

      466.385 Amendment of comprehensive plan and land use regulations; model language; appeal of land use decision related to site requiring notice. (1) By the first periodic review after development of model language under subsection (2) of this section, the governing body of a city or county shall amend its comprehensive plan and land use regulations as provided in ORS 197.610 to 197.651 to establish and implement policies regarding potentially hazardous environmental conditions on sites listed under ORS 466.365. The land use regulations shall provide that:

      (a) The city or county shall not approve any proposed use of a disposal site for which the city or county has received notice under ORS 466.370 until the Department of Environmental Quality has been notified and provided the city or county with comments on the proposed use; and

      (b) Within 120 days of receipt of an environmental hazard notice from the Department of Environmental Quality, the city or county shall amend its zoning maps to identify the disposal site.

      (2) The Department of Environmental Quality and the Department of Land Conservation and Development shall:

      (a) Develop model language for comprehensive plans and land use regulations for use by cities and counties in complying with this section; and

      (b) Provide technical assistance to cities and counties in complying with ORS 466.360 to 466.385.

      (3) The Department of Environmental Quality may appeal to the Land Use Board of Appeals any final land use decision or limited land use decision made by a city or county regarding any proposed use of a disposal site that has been identified under its comprehensive plan and land use regulations pursuant to this section. [1985 c.273 §7; 1991 c.612 §22; 1991 c.817 §30; 2001 c.672 §12]

 

      466.450 [1987 c.86 §1; repealed by 1997 c.16 §3]

 

      466.455 [1987 c.86 §2; repealed by 1997 c.16 §3]

 

      466.460 [1987 c.86 §3; repealed by 1997 c.16 §3]

 

USE OF PCB

 

      466.505 Definitions for ORS 466.505 to 466.530. As used in ORS 466.505 to 466.530:

      (1) “PCB” means the class of chlorinated biphenyl, terphenyl, higher polyphenyl, or mixtures of these compounds, produced by replacing two or more hydrogen atoms on the biphenyl, terphenyl, or higher polyphenyl molecule with chlorine atoms. “PCB” does not include chlorinated biphenyls, terphenyls, higher polyphenyls, or mixtures of these compounds, that have functional groups attached other than chlorine unless that functional group on the chlorinated biphenyls, terphenyls, higher polyphenyls, or mixtures thereof of these compounds, is determined to be dangerous to the public health under ORS 466.525.

      (2) “Ppm” means parts per million. [Formerly 468.900]

 

      466.510 Sale of items containing concentrations of PCB prohibited; rules; exceptions. (1) Except as provided in ORS 466.515, a person shall not sell, manufacture for sale, or use in this state an item, product or material if the item, product or material contains a concentration of PCB equal to or greater than 100 ppm.

      (2) The commission by rule may prescribe a lower maximum concentration of PCB for specific items, products or materials if it finds the 100 ppm concentration specified in subsection (1) of this section to be inadequate to protect the public health from the toxic dangers of the PCB contained in that item, product or material. However, an item, product or material for which a lower maximum concentration of PCB is prescribed by federal law, rule or regulation shall not be allowed a concentration of PCB higher than that federal maximum. [Formerly 468.903; 2007 c.71 §147]

 

      466.515 Electric transformers or capacitors exempted; rules. Notwithstanding ORS 466.510:

      (1) PCB or an item, product or material containing PCB may be sold for use or used in this state if it is used in a closed system as a dielectric fluid for an electric transformer or capacitor pursuant to rules of the commission to insure the public health. However, upon adequate documentation of the availability of reasonable substitutes which meet performance standards and environmental acceptability, the commission after public hearing by rule may modify these exclusions in whole or in part by requiring the phasing in of the substitute or substitutes.

      (2) An item, product or material containing PCB may be manufactured for sale, sold for use or used in this state pursuant to an exemption certificate issued by the department under ORS 466.520. [Formerly 468.906]

 

      466.520 Exemption certificates; applications; conditions. (1) A person may make written application to the department for an exemption certificate on forms provided by the department. The department may require additional information or materials to accompany the application as it considers necessary for an accurate evaluation of the application.

      (2) The department shall grant an exemption for residual amounts of PCB remaining in electric transformer cores after the PCB in a transformer is drained and the transformer is filled with a substitute approved under ORS 466.515.

      (3) The department may grant an exemption for an item, product or material manufactured for sale, sold for use, or used by the person if the item, product or material contains incidental concentrations of PCB.

      (4) In granting a certificate of exemption, the department shall impose conditions on the exemption in order that the exemption covers only incidental concentrations of PCB.

      (5) As used in this section, “incidental concentrations of PCB” means concentrations of PCB which are beyond the control of the person and which are not the result of the person having:

      (a) Exposed the item, product or material to concentrations of PCB.

      (b) Failed to take reasonable measures to rid the item, product or material of concentrations of PCB.

      (c) Failed to use a reasonable substitute for the item, product or material for which the exemption is sought. [Formerly 468.909]

 

      466.525 Additional PCB compounds may be prohibited by rule. The commission after hearing by rule may include as a PCB and regulate accordingly any chlorinated biphenyls, terphenyls, higher polyphenyls, or mixtures of these compounds that have functional groups attached other than chlorine if that functional group on the chlorinated biphenyls, terphenyls, higher polyphenyls, or mixtures of these compounds is found to constitute a danger to public health. [Formerly 468.912]

 

      466.530 Prohibited disposal of waste containing PCB. After October 4, 1977, a person shall not dispose of solid or liquid waste resulting from the use of PCB or an item, product or material containing or which has contained a concentration equal to or greater than 100 ppm of PCB except in conformity with rules of the commission adopted pursuant to ORS 466.005 to 466.385 and 466.992. [Formerly 468.921]

 

      466.540 [1987 c.539 §52; 1987 c.735 §1; 1989 c.171 §60; renumbered 465.200 in 1989]

 

      466.547 [1987 c.735 §2; renumbered 465.205 in 1989]

 

      466.550 [1987 c.735 §3; renumbered 465.210 in 1989]

 

      466.553 [1987 c.735 §4; renumbered 465.400 in 1989]

 

      466.555 [1987 c.735 §5; renumbered 465.420 in 1989]

 

      466.557 [1987 c.735 §6; 1989 c.485 §1; renumbered 465.215 in 1989]

 

      466.560 [1987 c.735 §7; 1989 c.485 §9; renumbered 465.220 in 1989]

 

      466.563 [1987 c.735 §8; 1989 c.485 §10; renumbered 465.245 in 1989]

 

      466.565 [1987 c.735 §9; renumbered 465.250 in 1989]

 

      466.567 [1987 c.735 §10; renumbered 465.255 in 1989]

 

      466.570 [1987 c.735 §11; renumbered 465.260 in 1989]

 

      466.573 [1987 c.735 §12; renumbered 465.315 in 1989]

 

      466.575 [1987 c.735 §13; renumbered 465.320 in 1989]

 

      466.577 [1987 c.735 §14; renumbered 465.325 in 1989]

 

      466.580 [1987 c.735 §15; renumbered 465.330 in 1989]

 

      466.583 [1987 c.735 §16; renumbered 465.335 in 1989]

 

      466.585 [1987 c.735 §17; renumbered 465.340 in 1989]

 

      466.587 [1987 c.735 §18; 1989 c.485 §11; renumbered 465.375 in 1989]

 

      466.590 [1987 c.735 §19; 1989 c.833 §§113,169; 1989 c.966 §53; renumbered 465.380 in 1989]

 

SPILL RESPONSE AND CLEANUP

OF HAZARDOUS MATERIALS

 

      466.605 Definitions for ORS 466.605 to 466.680. As used in ORS 466.605 to 466.680 and 466.990 (3) and (4):

      (1) “Barrel” means 42 U.S. gallons at 60 degrees Fahrenheit.

      (2) “Cleanup” means the containment, collection, removal, treatment or disposal of oil or hazardous material; site restoration; and any investigations, monitoring, surveys, testing and other information gathering required or conducted by the Department of Environmental Quality.

      (3) “Cleanup costs” means all costs associated with the cleanup of a spill or release incurred by the state, its political subdivision or any person with written approval from the department when implementing ORS 466.205, 466.605 to 466.680, 466.990 (3) and (4) and 466.995 (2) or 468B.320.

      (4) “Commission” means the Environmental Quality Commission.

      (5) “Department” means the Department of Environmental Quality.

      (6) “Director” means the Director of the Department of Environmental Quality.

      (7) “Hazardous material” means one of the following:

      (a) A material designated by the commission under ORS 466.630.

      (b) Hazardous waste as defined in ORS 466.005.

      (c) Radioactive waste as defined in ORS 469.300, radioactive material identified by the Energy Facility Siting Council under ORS 469.605 and radioactive substances as defined in ORS 453.005.

      (d) Communicable disease agents as regulated by the Oregon Health Authority under ORS 431.035 to 431.530, 433.001 to 433.045 and 433.110 to 433.770.

      (e) Hazardous substances designated by the United States Environmental Protection Agency under section 311 of the Federal Water Pollution Control Act, P.L. 92-500, as amended.

      (8) “Oils” or “oil” includes gasoline, crude oil, fuel oil, diesel oil, lubricating oil, sludge, oil refuse and any other petroleum related product.

      (9) “Person” means an individual, trust, firm, joint stock company, corporation, partnership, association, municipal corporation, political subdivision, interstate body, the state and any agency or commission thereof and the federal government and any agency thereof.

      (10) “Reportable quantity” means one of the following:

      (a) A quantity designated by the commission under ORS 466.625.

      (b) The lesser of:

      (A) The quantity designated for hazardous substances by the United States Environmental Protection Agency pursuant to section 311 of the Federal Water Pollution Control Act, P.L. 92-500, as amended;

      (B) The quantity designated for hazardous waste under ORS 466.005 to 466.385, 466.990 (1) and (2) and 466.992;

      (C) Any quantity of radioactive material, radioactive substance or radioactive waste;

      (D) If spilled into waters of the state, or escape into waters of the state is likely, any quantity of oil that would produce a visible oily slick, oily solids, or coat aquatic life, habitat or property with oil, but excluding normal discharges from properly operating marine engines; or

      (E) If spilled on land, any quantity of oil over one barrel.

      (c) Ten pounds unless otherwise designated by the commission under ORS 466.625.

      (11) “Respond” or “response” means:

      (a) Actions taken to monitor, assess and evaluate a spill or release or threatened spill or release of oil or hazardous material;

      (b) First aid, rescue or medical services, and fire suppression; or

      (c) Containment or other actions appropriate to prevent, minimize or mitigate damage to the public health, safety, welfare or the environment which may result from a spill or release or threatened spill or release if action is not taken.

      (12) “Spill or release” means the discharge, deposit, injection, dumping, spilling, emitting, releasing, leaking or placing of any oil or hazardous material into the air or into or on any land or waters of the state, as defined in ORS 468B.005, except as authorized by a permit issued under ORS chapter 454, 459, 459A, 468, 468A, 468B or 469, ORS 466.005 to 466.385, 466.990 (1) and (2) or 466.992 or federal law or while being stored or used for its intended purpose.

      (13) “Threatened spill or release” means oil or hazardous material is likely to escape or be carried into the air or into or on any land or waters of the state, including from a ship as defined in ORS 468B.300 that is in imminent danger of sinking. [1985 c.733 §1; 1987 c.735 §26; 1989 c.6 §14; 1993 c.422 §28; 1997 c.249 §162; 2007 c.445 §41; 2009 c.595 §946; 2013 c.680 §19]

 

      466.610 Department authority relating to cleanup of oil or hazardous material. Subject to policy direction by the Environmental Quality Commission, the Department of Environmental Quality may:

      (1) Conduct and prepare independently or in cooperation with others, studies, investigations, research and programs pertaining to the containment, collection, removal or cleanup of oil and hazardous material.

      (2) Advise, consult, participate and cooperate with other agencies of the state, political subdivisions, other states or the federal government, in respect to any proceedings and all matters pertaining to responses, remedial actions or cleanup of oil and hazardous material and financing of cleanup costs, including radioactive waste, materials and substances otherwise subject to ORS chapters 453 and 469.

      (3) Employ personnel, including specialists and consultants, purchase materials and supplies and enter into contracts with public and private parties necessary to carry out the provisions of ORS 466.605 to 466.680, 466.990 (3) and (4) and 466.995 (2).

      (4) Conduct and supervise educational programs about oil and hazardous material, including the preparation and distribution of information regarding the containment, collection, removal or cleanup of oil and hazardous material.

      (5) Provide advisory technical consultation and services to units of local government and to state agencies.

      (6) Develop and conduct demonstration programs in cooperation with units of local government.

      (7) Perform all other acts necessary to carry out the duties, powers and responsibilities of the department under ORS 466.605 to 466.680, 466.990 (3) and (4) and 466.995 (2). [1985 c.733 §2; 1993 c.422 §29; 1999 c.849 §§99,100; 2003 c.75 §41]

 

      466.615 Limit on commission and department authority over radioactive substances. Nothing in ORS 466.605 to 466.680, 466.990 (3) and (4) and 466.995 (2) is intended to grant the Environmental Quality Commission or the Department of Environmental Quality authority over any radioactive substance regulated by the Oregon Health Authority under ORS chapter 453, or any radioactive material or waste regulated by the State Department of Energy or Energy Facility Siting Council under ORS chapter 469. [1985 c.733 §3; 1993 c.422 §30; 2009 c.595 §947]

 

      466.620 Emergency response plan. In accordance with the applicable provisions of ORS chapter 183, the Environmental Quality Commission shall adopt an oil and hazardous material emergency response master plan consistent with the plan adopted by the Department of Transportation under ORS 453.825 and 453.835, and after consultation with the office of the State Fire Marshal, the Oregon State Police, the Oregon Fire Chiefs Association and any other appropriate agency or organization. [1985 c.733 §4; 1989 c.833 §92; 2005 c.825 §16]

 

      466.625 Rulemaking. In accordance with applicable provisions of ORS chapter 183, the Environmental Quality Commission may adopt rules including but not limited to:

      (1) Provisions to establish that quantity of oil or hazardous material spilled or released which shall be reported under ORS 466.635. The commission may determine that one single quantity shall be the reportable quantity for any oil or hazardous material, regardless of the medium into which the oil or hazardous material is spilled or released.

      (2) Establishing procedures for the issuance, modification and termination of permits, orders, collection of recoverable costs and filing of notifications.

      (3) Any other provision consistent with the provisions of ORS 401.025, 466.605 to 466.680, 466.900 (3) and (4), 466.995 (2) and 468.070 that the commission considers necessary to carry out ORS 401.025, 466.605 to 466.680, 466.990 (3) and (4), 466.995 (2) and 468.070. [1985 c.733 §5; 1993 c.422 §31]

 

      466.630 Commission designation of substance as hazardous material; rules. (1) By rule, the Environmental Quality Commission may designate as a hazardous material any element, compound, mixture, solution or substance which when spilled or released into the air or into or on any land or waters of the state may present a substantial danger to the public health, safety, welfare or the environment.

      (2) Before designating a substance as hazardous material, the commission must find that the hazardous material, because of its quantity, concentration or physical or chemical characteristics may pose a present or future hazard to human health, safety, welfare or the environment when spilled or released. [1985 c.733 §6]

 

      466.635 Report of spill or release of reportable quantity of hazardous material. Any person owning or having control over any oil or hazardous material who has knowledge of a spill or release shall immediately notify the Office of Emergency Management as soon as that person knows the spill or release is a reportable quantity. [1985 c.733 §7; 2007 c.740 §39]

 

      466.640 Strict liability for spill or release; exceptions. (1) Any person owning or having control over any oil or hazardous material spilled or released or threatening to spill or release shall be strictly liable without regard to fault for the spill or release or threatened spill or release. However, in any action to recover damages, the person shall be relieved from strict liability without regard to fault if the person can prove that the spill or release of oil or hazardous material was caused by:

      (a) An act of war or sabotage or an act of God.

      (b) Negligence on the part of the United States Government or the State of Oregon.

      (c) An act or omission of a third party without regard to whether any such act or omission was or was not negligent.

      (2) Notwithstanding the provisions of subsection (1) of this section:

      (a) A person who has entered into, and is in compliance with, an administrative agreement under ORS 465.327 is not liable to the State of Oregon for any spill or release of oil or hazardous material at a facility that is subject to ORS 465.200 to 465.545 existing as of the date of the person’s acquisition of ownership or operation of the facility, to the extent provided in ORS 465.327.

      (b) A person who has entered into, and is in compliance with, a judicial consent judgment or an administrative consent order under ORS 465.327 is not liable to the State of Oregon or any person for any spill or release of oil or hazardous material at a facility that is subject to ORS 465.200 to 465.545 existing as of the date of the person’s acquisition of ownership or operation of the facility, to the extent provided in ORS 465.327. [1985 c.733 §8; 2011 c.487 §3]

 

      466.645 Cleanup; failure to complete cleanup. (1) Any person liable for a spill or release or threatened spill or release under ORS 466.640 shall immediately clean up the spill or release under the direction of the Department of Environmental Quality. Any person liable for a spill or release or a threatened spill or release shall immediately initiate cleanup, whether or not the department has directed the cleanup. The department may require the responsible person to undertake such investigations, monitoring, surveys, testing and other information gathering as the department considers necessary or appropriate to:

      (a) Identify the existence and extent of the spill or release;

      (b) Identify the source and nature of oil or hazardous material involved; and

      (c) Evaluate the extent of danger to the public health, safety, welfare or the environment.

      (2) If any person liable under ORS 466.640 does not immediately commence and promptly and adequately complete the cleanup, the department may clean up, or contract for the cleanup of the spill or release or the threatened spill or release.

      (3) Whenever the department is authorized to act under subsection (2) of this section, the department directly or by contract may undertake such investigations, monitoring, surveys, testing and other information gathering as it may deem appropriate to identify the existence and extent of the spill or release, the source and nature of oil or hazardous material involved and the extent of danger to the public health, safety, welfare or the environment. In addition, the department directly or by contract may undertake such planning, fiscal, economic, engineering and other studies and investigations it may deem appropriate to plan and direct cleanup actions, to recover the costs thereof and legal costs and to enforce the provisions of ORS 466.605 to 466.680. [1985 c.733 §9; 1987 c.158 §89; 1991 c.650 §5]

 

      466.650 [1985 c.733 §10; repealed by 1987 c.735 §27]

 

      466.653 [1987 c.539 §42; repealed by 1989 c.833 §175]

 

      466.655 [1985 c.733 §11; repealed by 1987 c.735 §27]

 

      466.660 [1985 c.733 §12; 1987 c.158 §90; repealed by 1989 c.833 §175]

 

      466.665 [1985 c.733 §13; 1987 c.158 §91; repealed by 1989 c.833 §175]

 

      466.670 Oil and Hazardous Material Emergency Response and Remedial Action Fund. (1) The Oil and Hazardous Material Emergency Response and Remedial Action Fund is established separate and distinct from the General Fund in the State Treasury. Interest earned on the fund shall be credited to the fund. Moneys received by the Department of Environmental Quality for the purpose of oil or hazardous material emergency response or remedial action shall be paid into the State Treasury and credited to the fund.

      (2) The State Treasurer shall invest and reinvest moneys in the Oil and Hazardous Material Emergency Response and Remedial Action Fund in the manner provided by law.

      (3) The moneys in the Oil and Hazardous Material Emergency Response and Remedial Action Fund are appropriated continuously to the Department of Environmental Quality to be used in the manner described in ORS 466.675. [1985 c.733 §14; 1989 c.833 §93; 1989 c.966 §54]

 

      466.675 Use of moneys in Oil and Hazardous Material Emergency Response and Remedial Action Fund. Moneys in the Oil and Hazardous Material Emergency Response and Remedial Action Fund may be used by the Department of Environmental Quality for the following purposes:

      (1) Funding actions and activities authorized by ORS 466.645, 466.205, 468B.320 and 468B.330.

      (2) Providing for the general administration of ORS 466.605 to 466.680 including the payment of personnel costs of the department or any other state agency related to the enforcement of ORS 466.605 to 466.680. [1985 c.733 §15; 1987 c.158 §92; 1989 c.833 §94]

 

      466.680 Responsibility for expenses of cleanup; record; treble damages; order; appeal. (1) If a person required to clean up oil or hazardous material under ORS 466.645 fails or refuses to do so, the person shall be responsible for the reasonable expenses incurred by the Department of Environmental Quality in carrying out ORS 466.645.

      (2) The department shall keep a record of all expenses incurred in carrying out any cleanup projects or activities authorized under ORS 466.645, including charges for services performed and the state’s equipment and materials utilized.

      (3) Any person who does not make a good faith effort to clean up oil or hazardous material when obligated to do so under ORS 466.645 shall be liable to the department for damages not to exceed three times the amount of all expenses incurred by the department.

      (4) Based on the record compiled by the department under subsection (2) of this section, the Environmental Quality Commission shall make a finding and enter an order against the person described in subsection (1) or (3) of this section for the amount of damages, not to exceed treble damages, and the expenses incurred by the state in carrying out the action authorized by this section. The order may be appealed in the manner provided for appeal of a contested case order under ORS chapter 183.

      (5) If the amount of state incurred expenses and damages under this section are not paid by the responsible person to the department within 15 days after receipt of notice that such expenses are due and owing, or, if an appeal is filed within 15 days after the court renders its decision if the decision affirms the order, the Attorney General, at the request of the Director of the Department of Environmental Quality, shall bring an action in the name of the State of Oregon in a court of competent jurisdiction to recover the amount specified in the notice of the director. [1985 c.733 §16]

 

      466.685 [1985 c.733 §19; repealed by 1987 c.735 §27]

 

      466.690 [1985 c.733 §20; repealed by 1987 c.735 §27]

 

      466.705 [1987 c.539 §2 (enacted in lieu of 468.901); 1989 c.926 §41; 1989 c.1071 §§20,25; repealed by 1991 c.863 §11 (466.706 enacted in lieu of 466.705)]

 

OIL STORAGE TANKS

(General Provisions)

 

      466.706 Definitions for ORS 466.706 to 466.882 and 466.994. As used in ORS 466.706 to 466.882 and 466.994:

      (1) “Commercial lending institution” means any financial institution or trust company, as those terms are defined in ORS 706.008, or any cooperative financial institution regulated by an agency of the federal government or this state.

      (2) “Commission” means the Environmental Quality Commission.

      (3) “Corrective action” means remedial action taken to protect the present or future public health, safety, welfare or the environment from a release of a regulated substance. “Corrective action” includes but is not limited to:

      (a) The prevention, elimination, removal, abatement, control, minimization, investigation, assessment, evaluation or monitoring of a hazard or potential hazard or threat, including migration of a regulated substance; or

      (b) Transportation, storage, treatment or disposal of a regulated substance or contaminated material from a site.

      (4) “Decommission” means to remove from operation an underground storage tank, including temporary or permanent removal from operation, abandonment in place or removal from the ground.

      (5) “Department” means the Department of Environmental Quality.

      (6) “Facility” means any one or combination of underground storage tanks and underground pipes connected to the tanks, used to contain an accumulation of motor fuel, including gasoline or diesel oil, that are located at one contiguous geographical site.

      (7) “Fee” means a fixed charge or service charge.

      (8) “Guarantor” means any person other than the permittee who by guaranty, insurance, letter of credit or other acceptable device, provides financial responsibility for an underground storage tank as required under ORS 466.815.

      (9) “Heating oil tank” means an aboveground or underground tank and pipes connected to the tank that contain heating oil for heating a building with human habitation or water heating not used for commercial processing.

      (10) “Heating oil tank service” means the decommissioning of a heating oil tank or the performance of corrective action necessary as a result of a release of oil from a heating oil tank.

      (11) “Investigation” means monitoring, surveying, testing or other information gathering.

      (12) “Local unit of government” means a city, county, special service district, metropolitan service district created under ORS chapter 268 or a political subdivision of the state.

      (13) “Oil” means gasoline, crude oil, fuel oil, diesel oil, lubricating oil, sludge, oil refuse and any other petroleum related product or fraction thereof that is liquid at a temperature of 60 degrees Fahrenheit and a pressure of 14.7 pounds per square inch absolute.

      (14) “Owner” means the owner of an underground storage tank.

      (15) “Permittee” means the owner or a person designated by the owner who is in control of or has responsibility for the daily operation or maintenance of an underground storage tank under a permit issued pursuant to ORS 466.760.

      (16) “Person” means an individual, trust, firm, joint stock company, corporation, partnership, joint venture, consortium, association, state, municipality, commission, political subdivision of a state or any interstate body, any commercial entity or the federal government or any agency of the federal government.

      (17) “Regulated substance” means:

      (a) Any substance listed by the United States Environmental Protection Agency in 40 C.F.R. Table 302.4 pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended (P.L. 96-510 and P.L. 98-80), but not including any substance regulated as a hazardous waste under 40 C.F.R. part 261 and OAR 340 Division 101;

      (b) Oil; or

      (c) Any other substance designated by the commission under ORS 466.630.

      (18) “Release” means the discharge, deposit, injection, dumping, spilling, emitting, leaking or placing of a regulated substance from an underground storage tank into the air or into or on land or the waters of the state, other than as authorized by a permit issued under state or federal law.

      (19) “Stage I vapor collection system” means a system where gasoline vapors are forced from a tank into a vapor-tight holding system or vapor control system through direct displacement by the gasoline being loaded.

      (20) “Stage II vapor collection system” means a system where at least 90 percent, by weight, of the gasoline vapors that are displaced or drawn from a vehicle fuel tank during refueling are transferred to a vapor-tight holding system or vapor control system.

      (21) “Underground storage tank” means any one or combination of tanks and underground pipes connected to the tank, used to contain an accumulation of a regulated substance, and the volume of which, including the volume of the underground pipes connected to the tank, is 10 percent or more beneath the surface of the ground.

      (22) “Waters of the state” has the meaning given that term in ORS 468B.005. [1991 c.863 §12 (enacted in lieu of 466.705); 1997 c.631 §479; 1999 c.880 §10; 1999 c.979 §8]

 

      466.710 Application of ORS 466.706 to 466.882 and 466.994. ORS 466.706 to 466.882 and 466.994 shall not apply to a:

      (1) Farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes.

      (2) Except as provided in ORS 466.858 to 466.878, tank used for storing heating oil for consumptive use on the premises where stored.

      (3) Septic tank.

      (4) Pipeline facility including gathering lines regulated:

      (a) Under the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. 1671);

      (b) Under the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. 2001); or

      (c) As an intrastate pipeline facility under state laws comparable to the provisions of law referred to in paragraph (a) or (b) of this subsection.

      (5) Surface impoundment, pit, pond or lagoon.

      (6) Storm water or waste water collection system.

      (7) Flow-through process tank.

      (8) Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations.

      (9) Storage tank situated in an underground area if the storage tank is situated upon or above the surface of a floor. As used in this subsection, “underground area” includes but is not limited to a basement, cellar, mine, drift, shaft or tunnel.

      (10) Pipe connected to any tank described in subsections (1) to (8) of this section. [Formerly 468.911; 1987 c.539 §18; 1999 c.979 §§9,17; 2001 c.104 §201]

 

      466.715 Legislative findings. (1) The Legislative Assembly finds that:

      (a) Regulated substances hazardous to the public health, safety, welfare and the environment are stored in underground tanks in this state; and

      (b) Underground tanks used for the storage of regulated substances are potential sources of contamination of the environment and may pose dangers to the public health, safety, welfare and the environment.

      (2) Therefore, the Legislative Assembly declares:

      (a) It is the public policy of this state to protect the public health, safety, welfare and the environment from the potential harmful effects of underground tanks used to store regulated substances.

      (b) It is the purpose of ORS 466.706 to 466.882 and 466.994 to enable the Environmental Quality Commission to adopt a statewide program for the prevention and reporting of releases and for taking corrective action to protect the public and the environment from releases from underground storage tanks. [1987 c.539 §4 (enacted in lieu of 468.902); 1989 c.1071 §§21,26]

 

(Administration)

 

      466.720 Statewide underground storage tank program; federal authorization; rules. (1) The Environmental Quality Commission shall adopt a statewide underground storage tank program. Except as otherwise provided in ORS 466.706 to 466.882 and 466.994, the statewide program shall establish uniform procedures and standards to protect the public health, safety, welfare and the environment from the consequences of a release from an underground storage tank.

      (2) The commission and the Department of Environmental Quality shall perform or cause to be performed any act necessary to gain final authorization of a state program for the regulation of underground storage tanks under the provisions of Section 9004 of the Federal Resource Conservation and Recovery Act, P.L. 94-580 as amended and P.L. 98-616, Section 205 of the federal Solid Waste Disposal Act, P.L. 96-482 as amended and federal regulations and interpretive and guidance documents issued pursuant to P.L. 94-580 as amended, P.L. 98-616 and P.L. 96-482. To gain final authorization, the department shall submit an application for state program approval to the United States Environmental Protection Agency. The commission may adopt, amend or repeal any rule necessary to implement ORS 466.706 to 466.882 and 466.994. [Subsection (1) enacted as 1987 c.539 §6; subsection (2) formerly 468.913; 2001 c.754 §1]

 

      466.725 Limitation on local government regulation. (1) Except as provided in ORS 466.730, a local unit of government may not enact or enforce any ordinance, rule or regulation relating to the matters encompassed by the state program established under ORS 466.720.

      (2) Any ordinance, rule or regulation enacted by a local unit of government of this state that encompasses the same matters as the state program shall be unenforceable, except for an ordinance, rule or regulation:

      (a) That requires an owner or permittee to report a release to the local unit of government; or

      (b) Adopted by a local unit of government operating an underground storage tank program pursuant to a contract entered into according to the provisions of ORS 466.730. [1987 c.539 §8 (enacted in lieu of 468.904)]

 

      466.727 Prohibition on local government tax, fee or surcharge. (1) A local unit of government may not impose any tax, fee or surcharge on soil generated as a result of remedial action or replacement of leaking underground storage tanks if financial assistance from the Underground Storage Tank Compliance and Corrective Action Fund has been provided for the remedial action or tank replacement.

      (2) Nothing in this section shall be construed to prevent a local unit of government that owns, leases or operates a site for the disposal, transfer, recovery or treatment of solid waste from charging a fee for disposal or treatment of soil at such site. [1993 c.661 §4]

 

      466.730 Delegation of program administration to state agency or local government by agreement. (1) The Environmental Quality Commission may authorize the department to enter into a contract or agreement with an agency of this state or a local unit of government to administer all or part of the underground storage tank program.

      (2) Any agency of this state or any local unit of government that seeks to administer an underground storage tank program under this section shall submit to the Department of Environmental Quality a description of the program the agency or local unit of government proposes to administer in lieu of all or part of the state program. The program description shall include at least the following:

      (a) A description in narrative form of the scope, structure, coverage and procedures of the proposed program.

      (b) A description, including organization charts, of the organization and structure of the contracting state agency or local unit of government that will have responsibility for administering the program, including:

      (A) The number of employees, occupation and general duties of each employee who will carry out the activities of the contract.

      (B) An itemized estimate of the cost of establishing and administering the program, including the cost of personnel listed in subparagraph (A) of this paragraph and administrative and technical support.

      (C) An itemization of the source and amount of funding available to the contracting state agency or local unit of government to meet the costs listed in subparagraph (B) of this paragraph, including any restrictions or limitations upon this funding.

      (D) A description of applicable procedures, including permit procedures.

      (E) Copies of the permit form, application form and reporting form the state agency or local unit of government intends to use in the program.

      (F) A complete description of the methods to be used to assure compliance and for enforcement of the program.

      (G) A description of the procedures to be used to coordinate information with the department, including the frequency of reporting and report content.

      (H) A description of the procedures the state agency or local unit of government will use to comply with trade secret laws under ORS 466.800.

      (3) Any program approved by the department under this section shall at all times be conducted in accordance with the requirements of ORS 466.706 to 466.882 and 466.994.

      (4) An agency or local unit of government shall exercise the functions relating to underground storage tanks authorized under a contract or agreement entered into under this section according to the authority vested in the commission and the department under ORS 466.706 to 466.882 and 466.994 insofar as such authority is applicable to the performance under the contract or agreement. The agency or local unit of government shall carry out these functions in the manner provided for the commission and the department to carry out the same functions. [1987 c.539 §9]

 

      466.735 Cooperation with Department of Consumer and Business Services and State Fire Marshal. Nothing in ORS 466.706 to 466.882 and 466.994 is intended to interfere with, limit or abridge the authority of the Department of Consumer and Business Services or the State Fire Marshal, or any other state agency or local unit of government relating to combustion and explosion hazards, hazard communications or land use. The complementary relationship between the protection of the public safety from combustion and explosion hazards, and protection of the public health, safety, welfare and the environment from releases of regulated substances from underground storage tanks is recognized. Therefore, the Department of Environmental Quality shall work cooperatively with the Department of Consumer and Business Services, the State Fire Marshal and local units of government in developing the rules and procedures necessary to carry out the provisions of ORS 466.706 to 466.882 and 466.994. [1987 c.539 §10]

 

      466.740 Noncomplying installation prohibited. No person shall install an underground storage tank for the purpose of storing regulated substances unless the tank complies with the standards adopted under ORS 466.746 and any other rule adopted under ORS 466.706 to 466.882 and 466.994. [1987 c.539 §11]

 

      466.743 Training on operation, maintenance and testing; rules. (1) Operators of underground storage tanks shall participate in mandatory training on the proper operation, maintenance and testing of underground storage tanks.

      (2) The Environmental Quality Commission shall adopt rules establishing mandatory training requirements. The rules may include, but are not limited to:

      (a) A definition of operator, which may include other persons with daily responsibility for on-site operation and maintenance of underground storage tanks who are required to obtain training under this section;

      (b) Requirements and specifications for training or testing services; and

      (c) A schedule that sets forth compliance dates for each facility.

      (3) The commission may accommodate hardship cases in which attendance at a training session is unusually difficult due to special circumstances. An accommodation under this subsection does not exempt a person from the training requirements under subsection (1) of this section. [2001 c.754 §3]

 

      466.745 [1987 c.539 §13 (enacted in lieu of 468.908); 1989 c.1071 §§22,27,29a,43a,43b; repealed by 1991 c.863 §13 (466.746 enacted in lieu of 466.745)]

 

      466.746 Commission rules; considerations. (1) The Environmental Quality Commission may establish by rule:

      (a) Performance standards, consistent with standards adopted by the federal government, for leak detection systems, inventory control, tank testing or comparable systems or programs designed to detect or identify releases in a manner consistent with the protection of public health, safety, welfare or the environment;

      (b) Requirements for maintaining records and submitting information to the Department of Environmental Quality in conjunction with a leak detection or identification system or program used for each underground storage tank;

      (c) Performance standards for underground storage tanks including but not limited to design, retrofitting, construction, installation, release detection and material compatibility;

      (d) Requirements for the temporary or permanent decommissioning of an underground storage tank;

      (e) Requirements for reporting a release from an underground storage tank;

      (f) Requirements for a permit issued under ORS 466.760;

      (g) Procedures that distributors of regulated substances and sellers of underground storage tanks must follow to satisfy the requirements of ORS 466.760;

      (h) Acceptable methods by which an owner or permittee may demonstrate financial responsibility for responding to the liability imposed under ORS 466.815;

      (i) Procedures for the disbursement of moneys collected under ORS 466.795;

      (j) Requirements for reporting corrective action taken in response to a release;

      (k) Requirements for taking corrective action in response to a release;

      (L) Requirements for soil assessment and tank tightness tests which shall not be more stringent soil assessment and tank tightness testing requirements than required by the federal government;

      (m) Provisions necessary to carry out the underground storage tank loan guarantee program authorized by section 4, chapter 1071, Oregon Laws 1989; and

      (n) Any other rule necessary to carry out the provisions of ORS 466.706 to 466.882 and 466.994.

      (2) So long as requirements are administered uniformly within each area or region of the state, the commission may adopt different requirements for different areas or regions of the state if the commission finds either of the following:

      (a) More stringent rules or standards are necessary:

      (A) To protect specific waters of the state, a sole source or sensitive aquifer or any other sensitive environmental amenity; or

      (B) Because conditions peculiar to that area or region require different standards to protect public health, safety, welfare or the environment.

      (b) Less stringent rules or standards are:

      (A) Warranted by physical conditions or economic hardship;

      (B) Consistent with the protection of the public health, safety, welfare or the environment; and

      (C) Not less stringent than minimum federal requirements.

      (3) The rules adopted by the commission under subsection (1) of this section may distinguish between types, classes and ages of underground storage tanks. In making such distinctions, the commission may consider the following factors:

      (a) Location of the tanks;

      (b) Soil and climate conditions;

      (c) Uses of the tanks;

      (d) History of maintenance;

      (e) Age of the tanks;

      (f) Current industry recommended practices;

      (g) National consensus codes;

      (h) Hydrogeology;

      (i) Water table;

      (j) Size of the tanks;

      (k) Quantity of regulated substances periodically deposited in or dispensed from the tank;

      (L) The technical ability of the owner or permittee; and

      (m) The compatibility of the regulated substance and the materials of which the tank is fabricated.

      (4) In adopting rules under subsection (1) of this section, the commission shall consider all relevant federal standards and regulations on underground storage tanks. If the commission adopts any standard or rule that is different than a federal standard or regulation on the same subject, the report submitted to the commission by the department at the time the commission adopts the standard or rule shall indicate clearly the deviation from the federal standard or regulation and the reasons for the deviation. [1991 c.863 §14 (enacted in lieu of 466.745)]

 

(Licenses; Permits)

 

      466.750 License procedure for persons servicing underground tanks. (1) In order to safeguard the public health, safety and welfare, to protect the state’s natural and biological systems, to protect the public from unlawful underground tank installation and retrofit procedures, to assure the highest degree of leak prevention from underground storage tanks and to insure the appropriate cleanup of oil spills and releases, the Environmental Quality Commission may adopt a program to regulate persons providing underground storage tank installation and removal, retrofit, testing, inspection and remedial action services.

      (2) The program established under subsection (1) of this section may include a procedure to license persons who demonstrate, to the satisfaction of the Department of Environmental Quality, the ability to service underground storage tanks. This demonstration of ability may consist of written or field examinations. The commission may establish different types of licenses for different types of demonstrations, including but not limited to:

      (a) Installation, removal, retrofit and inspection of underground storage tanks;

      (b) Tank integrity testing;

      (c) Installation of leak detection systems; and

      (d) Cleanup of soil contamination resulting from spills or releases of oil from underground storage tanks.

      (3) The program adopted under subsection (1) of this section may allow the department after opportunity for hearing under the provisions of ORS chapter 183, to revoke a license of any person offering underground storage tank services who commits fraud or deceit in obtaining a license or who demonstrates negligence or incompetence in performing underground tank services.

      (4) The program adopted under subsection (1) of this section shall:

      (a) Provide that no person may offer to perform or perform services for which a license is required under the program without such license.

      (b) Establish a schedule of fees for licensing under the program. The fees shall be in an amount sufficient to cover the costs of the department in administering the program.

      (5) The following persons shall apply for an underground storage tank permit from the department:

      (a) An owner of an underground storage tank currently in operation;

      (b) An owner of an underground storage tank taken out of operation between January 1, 1974, and May 1, 1988; and

      (c) An owner of an underground storage tank that was taken out of operation before January 1, 1974, but that still contains a regulated substance. [1987 c.539 §§14,15; 1989 c.926 §42; 1999 c.979 §10; 2001 c.104 §202]

 

      466.760 When permit required; who required to sign application. (1) No person shall install, bring into operation, operate or decommission an underground storage tank without first obtaining a permit from the Department of Environmental Quality.

      (2) No person shall deposit a regulated substance into an underground storage tank unless the tank is operating under a permit issued by the department.

      (3) Any person who assumes ownership of an underground storage tank from a previous permittee must complete and return to the department an application for a new permit before the person begins operation of the underground storage tank under the new ownership.

      (4) Any person who deposits a regulated substance into an underground storage tank or sells an underground storage tank shall notify the owner or operator of the tank of the permit requirements of this section.

      (5) The following persons must sign an application for a permit submitted to the department under this section or ORS 466.750 (5):

      (a) The owner of an underground storage tank storing a regulated substance;

      (b) The owner of the real property in which an underground storage tank is located; and

      (c) The proposed permittee, if a person other than the owner of the underground storage tank or the owner of the real property. [1987 c.539 §16; 1989 c.926 §43; 1989 c.1071 §§23,28; 1999 c.979 §11]

 

      466.765 Duty of owner or permittee of underground storage tank. In addition to any other duty imposed by law and pursuant to rules adopted under ORS 466.706 to 466.882 and 466.994, the owner or the permittee of an underground storage tank shall:

      (1) Prevent releases;

      (2) Install, operate and maintain underground storage tanks and leak detection devices and develop and maintain records in connection therewith in accordance with standards adopted and permits issued under ORS 466.706 to 466.882 and 466.994;

      (3) Furnish information to the Department of Environmental Quality relating to underground storage tanks, including information about tank equipment and regulated substances stored in the tanks;

      (4) Promptly report releases;

      (5) Conduct monitoring and testing as required by rules adopted under ORS 466.746 and permits issued under ORS 466.760;

      (6) Permit department employees or a duly authorized and identified representative of the department at all reasonable times to have access to and to copy all records relating to underground storage tanks;

      (7) Pay all costs of investigating, preventing, reporting and stopping a release;

      (8) Decommission tanks, as required by rules adopted under ORS 466.746 and permits issued under ORS 466.760;

      (9) Pay all fees;

      (10) Conduct any corrective action required under ORS 466.810; and

      (11) Perform any other requirement adopted under ORS 465.200, 466.706 to 466.882, 466.994 and 478.308. [1987 c.539 §20 (enacted in lieu of 468.905)]

 

      466.770 Corrective action required on contaminated site. (1) If any owner or permittee of a contaminated site fails without sufficient cause to conduct corrective action under ORS 466.765, the Department of Environmental Quality may undertake any investigation or corrective action with respect to the contamination on the site.

      (2) The department shall keep a record of all expenses incurred in carrying out any corrective action authorized under subsection (1) of this section, including charges for services performed and the state’s equipment and materials utilized.

      (3) Any owner or permittee of a contaminated site who fails without sufficient cause to conduct corrective action as required by an order of the department under ORS 466.810 shall be liable to the department for damages not to exceed three times the amount of all expenses incurred by the department in carrying out the necessary corrective action.

      (4) Based on the record compiled by the department under subsection (2) of this section, the Environmental Quality Commission shall make a finding and enter an order against the person described in subsection (1) or (3) of this section for the amount of damages, not to exceed treble damages, and the expenses incurred by the state in carrying out the actions authorized by this section. The order may be appealed in the manner provided for appeal of a contested case order under ORS chapter 183.

      (5) If the amount of corrective action costs incurred by the department and damages under this section are not paid by the responsible person to the department within 15 days after receipt of notice that such expenses are due and owing, or, if an appeal is filed within 15 days after the court renders its decision if the decision affirms the order, the Attorney General, at the request of the director, shall bring an action in the name of the State of Oregon in a court of competent jurisdiction to recover the amount specified in the notice of the director.

      (6) Subsection (5) of this section shall not apply if the department and the responsible person are negotiating or have entered into a settlement agreement, except that if the responsible person fails to pay the corrective action costs as provided in the negotiated settlement the director may request the Attorney General to take action as set forth in subsection (5) of this section.

      (7) All moneys received by the department under this section shall be paid into the fund established in ORS 466.791.

      (8) As used in this section:

      (a) “Contamination” means any abandoning, spilling, releasing, leaking, disposing, discharging, depositing, emitting, pumping, pouring, emptying, injecting, escaping, leaching, placing or dumping of a regulated substance from an underground storage tank into the air or on any lands or waters of the state, so that such regulated substance may enter the environment, be emitted into the air or discharged into any waters. Such contamination authorized by and in compliance with a permit issued under ORS chapter 454, 459, 468, 468A, 468B, 469, ORS 466.005 to 466.385 or federal law shall not be considered as contamination under ORS 465.200, 466.706 to 466.882, 466.994 and 478.308.

      (b) “Site” means any area or land. [1987 c.539 §24; 1993 c.560 §106]

 

      466.775 Grounds for refusal, modification, suspension or revocation of permit. (1) The Department of Environmental Quality may refuse to issue, modify, suspend, revoke or refuse to renew a permit if the department finds:

      (a) A material misrepresentation or false statement in the application for the permit;

      (b) Failure to comply with the conditions of the permit; or

      (c) Violation of any applicable provision of ORS 466.706 to 466.882 and 466.994, any applicable rule or standard adopted under ORS 466.706 to 466.882 and 466.994 or an order issued under ORS 466.706 to 466.882 and 466.994.

      (2) The department may modify a permit issued under ORS 466.760 if the department finds, after notice and opportunity for hearing, that modification is necessary to protect the public health, safety, welfare or the environment.

      (3) The department shall modify, suspend, revoke or refuse to issue or renew a permit according to the provisions of ORS chapter 183 for a contested case proceeding. [1987 c.539 §21]

 

      466.780 Variance upon petition. (1) Upon petition by the owner and the permittee of an underground storage tank, the Environmental Quality Commission may grant a variance from the requirements of any rule or standard adopted under ORS 466.746 if the commission finds:

      (a) The alternative proposed by the petitioner provides protection to the public health, safety, welfare and the environment, equal to or greater than the rule or standard; and

      (b) The alternative proposal is at least as stringent as any applicable federal requirements.

      (2) The commission may grant a variance under subsection (1) of this section only if the commission finds that strict compliance with the rule or standard is inappropriate because:

      (a) Conditions exist that are beyond the control of the petitioner; or

      (b) Special physical conditions or other circumstances render strict compliance unreasonable, burdensome or impracticable.

      (3) The commission may delegate the authority to grant a variance to the Department of Environmental Quality.

      (4) Within 15 days after the department denies a petition for a variance, the petitioner may file with the commission a request for review by the commission. The commission shall review the petition for variance and the reasons for the department’s denial of the petition within 150 days after the commission receives a request for review. The commission may approve or deny the variance or allow a variance on terms different than the terms proposed by the petitioner. If the commission fails to act on a denied petition within the 150-day period the variance shall be considered approved by the commission. [1987 c.539 §22]

 

(Finance)

 

      466.783 Installation fee; permit modification fee. (1) An applicant for a permit to install an underground storage tank shall pay an installation fee of $400 per tank. The applicant shall make payment to the Department of Environmental Quality at the time of application for the installation of an underground storage tank.

      (2)(a) When ownership of an existing underground storage tank changes, or when ownership of the property on which an underground storage tank is located changes, the permittee shall pay a permit modification fee of $75. The permittee shall make payment to the Department of Environmental Quality at the time of application for the modification of an operating permit.

      (b) When a permittee changes, the new permittee shall pay a permit modification fee of $75. The new permittee shall make payment to the Department of Environmental Quality at the time of application for the modification of an operating permit.

      (3) The fees collected by the department under this section shall be deposited into the State Treasury to the credit of an account of the department. All fees paid to the department shall be continuously appropriated to the department to carry out the provisions of ORS 466.706 to 466.882 and 466.994. [2001 c.754 §12]

 

      466.785 Annual storage tank fee; late payment fee. (1) Every underground storage tank permittee shall pay a fee in the amount of $135 per tank per calendar year.

      (2) A permittee shall pay a late fee of $35 for each tank fee required under this section that is not paid by the specified due date.

      (3) Fees collected by the Department of Environmental Quality under this section shall be deposited in the State Treasury to the credit of an account of the department. All fees paid to the department shall be continuously appropriated to the department to carry out the provisions of ORS 466.706 to 466.882 and 466.994. [1987 c.539 §§23,50; 1989 c.833 §157; 1989 c.935 §1; 1989 c.1071 §§44,45; 1993 c.525 §§1,2,3; 1999 c.884 §1; amendments by 1999 c.884 §3 repealed by 2001 c.754 §17; 2001 c.754 §5; 2005 c.534 §3; 2007 c.479 §1]

 

      466.787 Annual service provider fee; biennial supervisor fee. (1) As used in this section:

      (a) “Service provider” means a person or firm registered in the State of Oregon pursuant to Department of Environmental Quality rules to provide underground storage tank services.

      (b) “Supervisor” means a person, operating alone or employed by a contractor, who directs and oversees underground storage tank services.

      (c) “Underground storage tank services” includes but is not limited to installation, decommissioning, retrofitting, testing and inspection of underground storage tanks.

      (2) Pursuant to ORS 466.750:

      (a) A supervisor shall pay fees based on the following schedule:

      (A) $150 every two years for each license issued for cleanup of underground storage tanks; and

      (B) $150 every two years for a license to service underground storage tanks.

      (b) A service provider shall pay a fee of $300 per license per year.

      (3) Fees collected by the Department of Environmental Quality under this section shall be deposited into the State Treasury to the credit of an account of the department. All fees paid to the department shall be continuously appropriated to the department to carry out the provisions of ORS 466.706 to 466.882 and 466.994. [2001 c.754 §4]

 

      466.790 [1987 c.539 §26; 1989 c.1071 §§24,29,30,46,47,48; repealed by 1991 c.863 §15 (466.791 enacted in lieu of 466.790)]

 

      466.791 Underground Storage Tank Compliance and Corrective Action Fund; sources; uses. (1) The Underground Storage Tank Compliance and Corrective Action Fund is established separate and distinct from the General Fund in the State Treasury.

      (2) The following moneys, as they pertain to an underground storage tank, shall be deposited into the State Treasury and credited to the Underground Storage Tank Compliance and Corrective Action Fund:

      (a) Moneys recovered or otherwise received from responsible parties for corrective action;

      (b) Moneys allocated to the fund from the Administrative Services Economic Development Fund;

      (c) As permitted by federal court decisions, federal statutory requirements and administrative decisions, funds made available from multidistrict litigation - 150 oil overcharge settlement moneys or surplus stripper well oil overcharge settlement moneys; and

      (d) Any penalty, fine or damages recovered under ORS 466.770.

      (3) The State Treasurer may invest and reinvest moneys in the Underground Storage Tank Compliance and Corrective Action Fund in the manner provided by law.

      (4) The moneys in the Underground Storage Tank Compliance and Corrective Action Fund are appropriated continuously to the Department of Environmental Quality to be used as provided in subsection (5) of this section.

      (5) Moneys in the Underground Storage Tank Compliance and Corrective Action Fund may be used by the department for the following purposes:

      (a) Supporting the loan guarantee program established pursuant to section 4, chapter 1071, Oregon Laws 1989;

      (b) Repaying moneys advanced under ORS 293.205 to 293.225 to allow the department to begin operating the grant and loan programs established pursuant to section 4, chapter 1071, Oregon Laws 1989, or servicing any debt incurred by the fund;

      (c) Administration of the underground storage tank program;

      (d) Funding the interest rate subsidies established under section 6a, chapter 863, Oregon Laws 1991;

      (e) Funding the underground storage tank insurance premium copayment program established under sections 38 to 46, chapter 863, Oregon Laws 1991; and

      (f) Funding of the grants established under section 6, chapter 863, Oregon Laws 1991. [1991 c.863 §16 (enacted in lieu of 466.790); 1993 c.18 §120; 1993 c.661 §5; 1997 c.767 §9; 2001 c.104 §203]

 

      466.795 Underground Storage Tank Insurance Fund. (1) The Underground Storage Tank Insurance Fund is established separate and distinct from the General Fund in the State Treasury to be used solely for the purpose of satisfying the financial responsibility requirements of ORS 466.815.

      (2) Moneys transferred by the Department of Environmental Quality from the Underground Storage Tank Compliance and Corrective Action Fund established under ORS 466.791 shall be credited to the Underground Storage Tank Insurance Fund.

      (3) The State Treasurer may invest and reinvest moneys in the Underground Storage Tank Insurance Fund in the manner provided by law.

      (4) The moneys in the Underground Storage Tank Insurance Fund are appropriated continuously to the department to be used as provided for in subsection (5) of this section.

      (5) Moneys in the Underground Storage Tank Insurance Fund may be used by the department for the following purposes, as they pertain to underground storage tanks:

      (a) Funding of the underground storage tank insurance premium copayments established under sections 38 to 46, chapter 863, Oregon Laws 1991; and

      (b) Payment of the department’s costs in administering the Underground Storage Tank Insurance Fund, which shall be limited to five percent of the premium collected. [1987 c.539 §28; 1989 c.833 §158; 1989 c.935 §§2,3; 1991 c.863 §47]

 

      466.800 Records as public records; exceptions. (1) Except as provided in subsection (2) of this section, any records, reports or information obtained from any persons under ORS 466.765 and 466.805 shall be made available for public inspection and copying during the regular office hours of the Department of Environmental Quality at the expense of any person requesting copies.

      (2) Unless classified by the director as confidential, any records, reports or information obtained under ORS 466.706 to 466.882 and 466.994 shall be available to the public. Upon a showing satisfactory to the director by any person that records, reports or information, or particular parts thereof, if made public, would divulge methods, processes or information entitled to protection as trade secrets under ORS 192.501 to 192.505, the director shall classify as confidential such record, report or information, or particular part thereof. However, such record, report or information may be disclosed to any other officer, medical or public safety employee or authorized representative of the state concerned with carrying out ORS 466.706 to 466.882 and 466.994 or when relevant in any proceeding under ORS 466.706 to 466.882 and 466.994.

      (3) Any record, report or information obtained or used by the department or the Environmental Quality Commission in administering the statewide underground storage tank program under ORS 466.706 to 466.882 and 466.994 shall be available to the United States Environmental Protection Agency upon request. If the record, report or information has been submitted to the state under a claim of confidentiality, the state shall make that claim of confidentiality to the Environmental Protection Agency for the requested record, report or information. The federal agency shall treat the record, report or information subject to the confidentiality claim as confidential in accordance with applicable federal law. [Formerly 468.910]

 

(Enforcement)

 

      466.805 Site inspection; subpoena or warrant. (1) In order to determine compliance with the provisions of ORS 466.706 to 466.882 and 466.994 and rules adopted under ORS 466.706 to 466.882 and 466.994 and to enforce the provisions of ORS 466.706 to 466.882 and 466.994, any employees of or an authorized and identified representative of the Department of Environmental Quality may:

      (a) Enter at reasonable times any establishment or site where an underground storage tank is located;

      (b) Inspect and obtain samples of a regulated substance contained in an underground storage tank; and

      (c) Conduct an investigation of an underground storage tank, associated equipment, contents or the soil, air or waters of the state surrounding an underground storage tank.

      (2) If any person refuses to comply with subsection (1) of this section, the department or a duly authorized and identified representative of the department may obtain a warrant or subpoena to allow such entry, inspection, sampling or copying. [1987 c.539 §30 (enacted in lieu of 468.907)]

 

      466.810 Investigation on noncompliance; findings and orders; decommissioning tank; hearings; other remedies. (1) Whenever the Department of Environmental Quality has reasonable cause to believe that an underground storage tank or the operation of an underground storage tank violates ORS 466.706 to 466.882 and 466.994 or fails to comply with a rule, order or permit issued under ORS 466.706 to 466.882 and 466.994, the department may investigate the underground storage tank.

      (2) After the department investigates an underground storage tank under subsection (1) of this section, the department may, without notice or hearing, make such findings and issue such orders as it considers necessary to protect the public health, safety, welfare or the environment.

      (3) The findings and orders made by the department under subsection (2) of this section may:

      (a) Require changes in the operation, practices or operating procedures found to be in violation of ORS 466.706 to 466.882 and 466.994 or the rules adopted under ORS 466.706 to 466.882 and 466.994;

      (b) Require the owner or operator to comply with the provisions of a permit;

      (c) Require compliance with a schedule established in the order; and

      (d) Require any other actions considered necessary by the department.

      (4) After the department issues an order under subsection (2) of this section, the department may decommission the underground storage tank or contract with another person to decommission the underground storage tank.

      (5) The department shall serve a certified copy of any order issued by it under subsection (2) of this section to the permittee or the permittee’s duly authorized representative at the address furnished to the department in the permit application or other address as the department knows to be used by the permittee. The order shall take effect 20 days after the date of its issuance, unless the permittee requests a hearing on the order before the Environmental Quality Commission. The request for a hearing shall be submitted in writing within 20 days after the department issues the order.

      (6) All hearings under this section shall be conducted according to applicable provisions of ORS chapter 183 for contested cases.

      (7) Whenever it appears to the department that any person is engaged or about to engage in any act or practice that constitutes a violation of ORS 466.706 to 466.882 and 466.994 or the rules and orders adopted under ORS 466.706 to 466.882 and 466.994 or of the terms of any permit issued under ORS 466.706 to 466.882 and 466.994, the department, without prior administrative hearing, may institute actions or proceedings for legal or equitable remedies to enforce compliance therewith or to restrain further violations thereof. [1987 c.539 §32; 1999 c.849 §101a]

 

      466.815 Financial responsibility of owner or permittee; rules; legislative review. (1) The Environmental Quality Commission may by rule require an owner or permittee to demonstrate and maintain financial responsibility for:

      (a) Taking corrective action;

      (b) Compensating a third party for bodily injury and property damage caused by a release; and

      (c) Compensating the Department of Environmental Quality, or any other person, for expenses incurred by the department or any other person in taking corrective action.

      (2) The financial responsibility requirements established by subsection (1) of this section may be satisfied by insurance, guarantee by third party, surety bond, letter of credit or qualification as a self-insurer or any combination of these methods. In adopting rules under subsection (1) of this section, the commission may specify policy or other contractual terms, conditions or defenses necessary or unacceptable to establish evidence of financial responsibility.

      (3) If an owner or permittee is in bankruptcy, reorganization or arrangement pursuant to the federal bankruptcy law, or if jurisdiction in any state or federal court cannot be obtained over either an owner or a permittee likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the guarantor. In the case of action under subsection (1)(b) of this section, the guarantor is entitled to invoke all rights and defenses that would have been available to the owner or permittee if the action had been brought against the owner or permittee by the claimant and all rights and defenses that would have been available to the guarantor if the action had been brought against the guarantor by the owner or permittee.

      (4) The total liability of a guarantor shall be limited to the aggregate amount the guarantor provided as evidence of financial responsibility to the owner or permittee under subsection (2) of this section. This subsection does not limit any other state or federal statutory, contractual or common law liability of the guarantor for bad faith in negotiating or in failing to negotiate the settlement of any claim. This subsection does not diminish the liability of any person under section 107 or 111 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or other applicable law.

      (5) Corrective action and compensation programs financed by a fee paid by owners and permittees and administered by the department may be used to satisfy all or part of the financial responsibility requirements of this section.

      (6) No rule requiring an owner or permittee to demonstrate and maintain financial responsibility shall be adopted by the commission before review by the appropriate legislative committee as determined by the President of the Senate and the Speaker of the House of Representatives. [1987 c.539 §27]

 

      466.820 Reimbursement to department; procedure for collection; treble damages. (1) The owner and the permittee of an underground storage tank found to be in violation of any provision of ORS 466.706 to 466.882 and 466.994, shall reimburse the Department of Environmental Quality for all costs reasonably incurred by the department, excluding administrative costs, in the investigation of a leak from an underground storage tank. Department costs may include investigation, design engineering, inspection and legal costs necessary to correct the leak.

      (2) Payment of costs to the department under subsection (1) of this section shall be made to the department within 15 days after the end of the appeal period or, if an appeal is filed, within 15 days after the court or the Environmental Quality Commission renders its decision, if the decision affirms the order.

      (3) If such costs are not paid by the owner or the permittee of the underground storage tank to the department within the time provided in subsection (2) of this section, the Attorney General, upon the request of the director, shall bring action in the name of the State of Oregon in the Circuit Court of Marion County or the circuit court of any other county in which the violation may have taken place to recover the amount specified in the order of the department.

      (4) In addition to any other penalty provided by law, if any person is found in violation of any provision of ORS 465.200, 466.706 to 466.882, 466.994 and 478.308, the commission or the court may award damages in the amount equal to three times the amount of all expenses incurred by the department in investigating the violation.

      (5) Moneys reimbursed shall be deposited to the State Treasury to the credit of an account of the department and are continuously appropriated to the department for the purposes of administering ORS 465.200, 466.706 to 466.882, 466.994 and 478.308. [1987 c.539 §34 (enacted in lieu of 468.914)]

 

      466.825 Strict liability of owner or permittee. The owner and permittee of an underground storage tank found to be the source of a release shall be strictly liable to any owner or permittee of a nonleaking underground storage tank in the vicinity, for all costs reasonably incurred by such nonleaking underground storage tank owner or permittee in determining which tank was the source of the release. [1987 c.539 §35]

 

      466.830 Halting tank operation upon clear and immediate danger. (1) Whenever, in the judgment of the Department of Environmental Quality from the results of monitoring or observation of an identified release, there is reasonable cause to believe that a clear and immediate danger to the public health, welfare, safety or the environment exists from the continued operation of an underground storage tank, the department may, without hearing or prior notice, order the operation of the underground storage tank or site halted by service of an order on the owner or permittee of the underground storage tank or site.

      (2) Within 24 hours after the order is served under subsection (1) of this section, the department shall appear in the appropriate circuit court to petition for the equitable relief required to protect the public health, safety, welfare or the environment. [1987 c.539 §36]

 

      466.835 Compliance and correction costs as lien; enforcement. (1) All compliance and corrective action costs, penalties and damages for which a person is liable to the state under ORS 466.706 to 466.882 and 466.994 shall constitute a lien upon any real and personal property owned by the person.

      (2) The Department of Environmental Quality shall file a claim of lien on real property to be charged with a lien under subsection (1) of this section with the recording officer of each county in which the real property is located and shall file a claim of lien on personal property to be charged with a lien under subsection (1) of this section with the Secretary of State. The lien shall attach and become enforceable on the date of the filing. The lien claim shall contain:

      (a) A statement of the demand;

      (b) The name of the person against whose property the lien attaches;

      (c) A description of the property charged with the lien sufficient for identification; and

      (d) A statement of the failure of the person to conduct compliance and corrective actions as required.

      (3) A lien created by this section may be foreclosed by a suit on real and personal property in the circuit court in the manner provided by law for the foreclosure of liens.

      (4) Nothing in this section shall affect the right of the state to bring an action against any person to recover all costs and damages for which a person is liable under the provisions of ORS 466.706 to 466.882 and 466.994. [1987 c.539 §37]

 

      466.837 Noncompliance penalties for specific underground storage tank violations; waiver of right to appeal; advisory committee; rules. (1) Notwithstanding ORS 466.994, the Environmental Quality Commission shall adopt rules for and implement a program for the assessment and expedited imposition of noncompliance penalties for specific underground storage tank violations. The Department of Environmental Quality shall form an advisory committee to assist the commission in the development of the program.

      (2) Permittee participation in the program is voluntary. Participants shall agree to accept the penalty assessed under the program as the final order by the Department of Environmental Quality and shall agree to waive any right to an appeal or any other judicial review of the department’s determination of a violation or assessment of a fine.

      (3) A penalty assessed under this program may not be less than $50 or greater than $500 per individual violation. Penalties imposed in the aggregate may not be more than $1,500 per facility per inspection date.

      (4) The fees collected by the department under this section shall be deposited into the State Treasury to the credit of an account of the department. All fees paid to the department shall be continuously appropriated to the department for the purposes of providing support to the program, technical assistance or operator training or meeting other needs of the department. [2001 c.754 §13; 2007 c.479 §2]

 

(Financial Assistance Programs)

 

      466.840 Legislative findings. The Legislative Assembly finds that:

      (1) The upgrading of underground storage tanks and the improving of such tanks and associated equipment are necessary to protect the public health and safety and the environment.

      (2) The costs of upgrading leaking underground storage tanks, purchasing improved equipment and cleaning up the contamination caused by leaking underground storage tanks, including the costs of disposal, remediation or other treatment of soil contaminated as a result of leaking underground storage tanks, exceed the financial capacity of many owners and operators of underground storage tanks.

      (3) The availability of motor vehicle fuel is necessary to create and retain employment and to encourage tourism in Oregon.

      (4) It is the intent and policy of the Legislative Assembly to:

      (a) Insure the funding and support of remedial action and replacement of leaking underground storage tanks and associated equipment, while allowing the owners and operators to continue to operate their businesses in Oregon; and

      (b) In order to insure such funding and support, prevent a local unit of government from imposing taxes, fees or surcharges on soil generated as a result of remedial action or replacement of leaking underground storage tanks. [1993 c.661 §2]

 

      466.845 Commission authority to accept and expend moneys received for financial assistance programs. (1) The Environmental Quality Commission may accept and expend moneys from any public or private source, including the federal government, made available for the purpose of carrying out financial assistance programs for owners and operators of storage tanks containing motor vehicle fuel.

      (2) All moneys and the proceeds of all moneys received by the Environmental Quality Commission under this section shall be deposited in the Underground Storage Tank Compliance and Corrective Action Fund to be used for the purposes for which they were made available and shall be expended in accordance with the terms and conditions upon which they were made available. [1993 c.661 §3]

 

      466.850 [1997 c.838 §1; repealed by 1999 c.880 §8]

 

      466.855 [1997 c.838 §2; repealed by 1999 c.880 §8]

 

(Heating Oil Tanks)

 

      466.858 Heating oil tank regulatory program; license to provide heating oil tank services; certification of corrective action. (1) The Environmental Quality Commission shall adopt a heating oil tank program to regulate the decommissioning of heating oil tanks and the corrective action of soil contamination resulting from the release of oil from heating oil tanks.

      (2) The program adopted under subsection (1) of this section shall include:

      (a) A procedure to license persons who demonstrate, to the satisfaction of the Department of Environmental Quality, the ability to provide heating oil tank services.

      (b) An educational pamphlet on the proper procedure to decommission heating oil tanks.

      (c) A certification program that allows the department to certify the voluntary decommissioning of heating oil tanks or to approve a corrective action that is certified to be complete by a person licensed under ORS 466.868 to perform such corrective action. [1999 c.979 §2]

 

      466.860 [1997 c.838 §3; repealed by 1999 c.880 §8]

 

      466.862 License required to provide heating oil tank services. No person shall perform or offer to perform heating oil tank services without first obtaining the license required under ORS 466.868. [1999 c.979 §3]

 

      466.865 [1997 c.838 §4; repealed by 1999 c.880 §8]

 

      466.868 Licensing requirements; annual fee; registry of licensees; revocation of license. (1) In order to obtain a license under the program established pursuant to ORS 466.858, a person shall provide to the Department of Environmental Quality:

      (a) A certificate of insurance in an amount adequate to pay for any additional corrective action necessary as a result of an improper or inadequate decommissioning or corrective action approved by the department.

      (b) A summary of all projects completed since the applicant last applied for a license, including the costs of those projects.

      (c) For each individual license, a demonstration of ability, which may consist of written or field examinations.

      (d) Any other information deemed necessary by the department.

      (e) An annual license fee. The fee shall be:

      (A) $750 for the business, including but not limited to corporations, limited partnerships and sole proprietorships, engaged in the performance of heating oil tank services; and

      (B) $75 for each individual employed by the business and charged with the supervisory responsibility to direct and oversee the performance of tank services at a facility.

      (2) The department shall maintain a registry of all persons licensed under this section, including a summary of the project information required in the application.

      (3) In accordance with ORS chapter 183, the department may revoke a license of any person offering heating oil tank services who commits fraud or deceit in obtaining a license or who demonstrates negligence or incompetence in performing the heating oil tank services. [1999 c.979 §4]

 

      466.870 [1997 c.838 §5; repealed by 1999 c.880 §8]

 

      466.872 Certification of voluntary decommissioning or approval of corrective action; fee. (1) In establishing the requirements to certify a voluntary decommissioning or to approve corrective action on the basis of a certification received from a heating oil tank service provider, the Department of Environmental Quality shall include:

      (a) A process for conducting inspections of sites where a heating oil tank has been decommissioned or where a heating oil tank service provider certifies corrective action is complete;

      (b) The specific information that a person must submit to certify that corrective action is complete;

      (c) Provisions that allow the department to reject certification and require additional corrective action prior to approval by the department that the certification is complete and complies with the standard set forth in ORS 465.315; and

      (d) Provisions to require additional information about a decommissioning before certifying the decommissioning.

      (2) Any person requesting certification of a heating oil tank decommissioning under subsection (1) of this section shall file a request with the department accompanied by a filing fee of $75.

      (3) Any person requesting certification of a heating oil tank corrective action under subsection (1) of this section shall file a request with the department accompanied by a filing fee of $200. [1999 c.979 §6; 2001 c.755 §1; 2007 c.85 §1]

 

      466.878 Required actions when use of underground heating oil tank is terminated; requirements at time of sale of real property containing abandoned heating oil tank. (1) When the use of an underground heating oil tank is terminated because the tank is replaced or an oil-heated building or residence is converted to a different primary source of heat:

      (a) The property owner shall ensure that the underground heating oil tank has been emptied of oil, which shall be appropriately managed.

      (b) The vent line shall be left in place if the tank is not decommissioned.

      (c) The person installing the new heating equipment shall advise the property owner that it is illegal to disconnect a heating oil tank without pumping out the tank and that there are practices recommended by the Department of Environmental Quality for decommissioning a heating oil tank.

      (2) When real property is sold, the seller shall ensure that any abandoned heating oil tank that is known to be on the property has been emptied of oil, which shall be appropriately managed, and the seller shall provide to the buyer documentation showing that the tank has been emptied. [1999 c.880 §6]

 

      466.880 [Formerly 459.995; (3) and (4) enacted by 1985 c.733 §17; 1987 c.266 §1; 1991 c.734 §35; renumbered 466.990 in 1997]

 

      466.882 Rules. The Environmental Quality Commission shall adopt rules necessary to carry out ORS 466.858 to 466.878. The rules shall include but need not be limited to:

      (1) A voluntary process for certifying the decommissioning of an abandoned underground heating oil tank;

      (2) Information required to be submitted by a licensed heating oil tank service provider or homeowner to allow the Department of Environmental Quality to approve a heating oil tank corrective action;

      (3) Requirements for the approval of decommissioning;

      (4) Standards to define adequate tank decommissioning; and

      (5) Requirements for the approval by the Department of Environmental Quality of decommissioning of underground heating oil tanks that were decommissioned before August 17, 1999. [1999 c.979, §7; 1999 c.979 §16]

 

      466.890 [1985 c.685 §2; renumbered 466.992 in 1997]

 

      466.895 [1987 c.539 §39; 1989 c.171 §61; 1991 c.734 §36; renumbered 466.994 in 1997]

 

      466.900 [1987 c.735 §23; renumbered 465.900 in 1989]

 

UNDERGROUND STORAGE TANKS HOLDING AIRCRAFT OR MARINE FUEL

 

      466.901 Definitions for ORS 466.901 to 466.915. As used in ORS 466.901 to 466.915:

      (1) “Commission” means the Environmental Quality Commission.

      (2) “Corrective action” means remedial action taken to protect the present or future public health, safety or welfare or the environment from a release of aircraft or marine fuel. “Corrective action” includes but is not limited to:

      (a) The prevention, elimination, removal, abatement, control, minimization, investigation, assessment, evaluation or monitoring of a hazard or potential hazard or threat, including migration of released aircraft or marine fuel; or

      (b) Transportation, storage, treatment or disposal of aircraft or marine fuel or contaminated material from a site.

      (3) “Department” means the Department of Environmental Quality.

      (4) “Facility” means any one or combination of fuel tanks and pipes connected to the tanks, used to contain an accumulation of aircraft or marine fuel including gasoline or diesel oil, that are located at one contiguous geographical site.

      (5) “Fuel tank” means an underground storage tank, as defined in ORS 466.706, used to contain an accumulation of aircraft or marine fuel.

      (6) “Investigation” means monitoring, surveying, testing or other information gathering.

      (7) “Owner” means the owner of a fuel tank.

      (8) “Port” has the meaning given that term in ORS 777.005. ”Port” includes an airport, as defined in ORS 836.005, that is owned by a port.

      (9) “Release” means the discharge, deposit, injection, dumping, spilling, emitting, leaking or placing of aircraft or marine fuel from a fuel tank into the air or into or on land or the waters of the state, other than as authorized by a permit issued under state or federal law.

      (10) “Stage I vapor collection system” means a system where fuel vapors are forced from a tank into a vapor-tight holding system or vapor control system through direct displacement by the fuel being loaded.

      (11) “Stage II vapor collection system” means a system where at least 90 percent, by weight, of the fuel vapors that are displaced or drawn from a fuel tank during refueling are transferred to a vapor-tight holding system or vapor control system.

      (12) “Waters of the state” has the meaning given that term in ORS 468B.005. [1997 c.788 §1]

 

      Note: 466.901 to 466.920 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 466 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      466.903 Financial assistance program for fuel tanks holding aircraft or marine fuel; application; fees. (1) The Department of Environmental Quality shall conduct a financial assistance program as described in this section and ORS 466.905, for the purpose of upgrading or replacing fuel tanks, conducting corrective action or installing stage I and II vapor collection system underground piping, hoses and nozzles at a fuel tank facility holding an accumulation of aircraft or marine fuel for resale.

      (2) An applicant for financial assistance shall submit an application for financial assistance to bring the applicant’s fuel tank facility into compliance with any applicable technical and financial responsibility requirements.

      (3) An applicant under subsection (2) of this section shall sign a consent agreement with the department to bring the applicant’s fuel tank facility into compliance with all applicable technical and financial responsibility requirements. In the consent agreement, the department may require the applicant to conduct daily inventory control and reconciliation, investigate a suspected release, report a confirmed release within 24 hours, determine whether an imminent hazard exists through adequate investigation and testing and conduct other reasonable fuel tank facility management activities that do not require capital investment.

      (4) An applicant who the department determines is eligible for financial assistance shall not be subject to enforcement action under ORS 466.706 to 466.882 and 466.994 if the applicant is making a good faith effort to:

      (a) Bring the applicant’s fuel tank facility into compliance with all technical and financial responsibility requirements on or before December 22, 1998; or

      (b) Permanently close the fuel tank facility in accordance with applicable fuel tank requirements on or before December 22, 1998.

      (5) In order to manage the funds available in the Fuel Tank Compliance and Corrective Action Fund, and to process the projected number of financial assistance applications, the department may establish a schedule for starting construction of the projects receiving financial assistance under this section and ORS 466.905. If the department finds that it is necessary to adjust an applicant’s schedule, the department shall consult with the applicant in establishing the new schedule. The applicant’s financial assistance from the department shall not be adversely affected by a schedule change imposed by the department.

      (6) Any port that does not submit an application for financial assistance shall comply with all applicable technical and financial responsibility requirements. Any port that receives financial assistance shall comply with all applicable technical and financial responsibility requirements within 60 days after completing the upgrade or replacement project.

      (7) An applicant for financial assistance shall:

      (a) Hold a valid underground storage tank permit for the facility for which the applicant is requesting the assistance;

      (b) Pay all annual underground storage tank compliance fees, including any fees currently due;

      (c) Take appropriate corrective action in accordance with rules of the Environmental Quality Commission in the event of an imminent hazard involving ground water contamination or a threat of fire and explosion from a spill or release of fuel; and

      (d) If the applicant closes a fuel tank facility, conduct closure operations in accordance with requirements established by rule by the commission. [1997 c.788 §2]

 

      Note: See note under 466.901.

 

      466.905 Eligibility for financial assistance; amount of grants. (1) Any port that owns or is responsible for a fuel tank holding an accumulation of aircraft or marine fuel for resale may be eligible for the financial assistance program established pursuant to this section and ORS 466.903. The financial assistance may be used to upgrade or replace a fuel tank, conduct corrective action or install stage I and II vapor collection system underground piping, hoses and nozzles at a fuel tank facility in conformity with applicable state and federal fuel tank, air quality and corrective action rules. If the port owns or is responsible for more than one fuel tank facility, the port is eligible for all applicable financial assistance for each facility.

      (2) Any port owning or responsible for 12 or fewer tanks, and meeting the criteria in subsection (3) of this section, may be eligible for a fuel tank essential services grant. The grant may be for an amount of 75 percent of eligible project costs but shall not exceed $75,000.

      (3) An applicant for a fuel tank essential services grant also shall be the sole supplier of aircraft or marine fuel for the port. [1997 c.788 §3]

 

      Note: See note under 466.901.

 

      466.907 Rules. The Environmental Quality Commission may adopt rules to implement the financial assistance program established by ORS 466.903 and 466.905. However, to the maximum extent possible, the Department of Environmental Quality shall rely on existing rules adopted by the commission to carry out other programs providing financial assistance to owners or operators of underground storage tank facilities. [1997 c.788 §4]

 

      Note: See note under 466.901.

 

      466.910 Sources of funds; disposition. (1) The Environmental Quality Commission may accept and expend moneys from any public or private source, including the federal government, made available for the purpose of carrying out the financial assistance program established by ORS 466.903 and 466.905.

      (2) All moneys and the proceeds of all moneys received by the commission under this section shall be deposited in the Fuel Tank Compliance and Corrective Action Fund to be used for the purposes for which they were made available and shall be expended in accordance with the terms and conditions upon which they were made available. [1997 c.788 §5]

 

      Note: See note under 466.901.

 

      466.913 Fuel Tank Compliance and Corrective Action Fund. (1) The Fuel Tank Compliance and Corrective Action Fund is established separate and distinct from the General Fund in the State Treasury.

      (2) The following moneys, as they pertain to a fuel tank facility, shall be deposited into the State Treasury and credited to the Fuel Tank Compliance and Corrective Action Fund:

      (a) Moneys recovered or otherwise received from responsible parties for corrective action related to a fuel tank facility;

      (b) Moneys allocated to the fund from the Administrative Services Economic Development Fund;

      (c) Any penalty or damages recovered under ORS 466.770 pertaining to a fuel tank facility; and

      (d) Any moneys received pursuant to ORS 466.910.

      (3) The State Treasurer may invest and reinvest moneys in the fund in the manner provided by law.

      (4) The moneys in the fund are appropriated continuously to the Department of Environmental Quality to be used as provided in subsection (5) of this section.

      (5) Moneys in the fund may be used by the department for administration and funding of the essential services grant program established under ORS 466.903 and 466.905. [1997 c.788 §6; 2011 c.597 §207]

 

      Note: See note under 466.901.

 

      466.915 Memorandum of understanding with State Marine Board or Department of Transportation. The Department of Environmental Quality may enter into a memorandum of understanding with the State Marine Board or the Department of Transportation that provides for the State Marine Board or the Department of Transportation to manage essential services grants awarded to eligible ports, as determined by the Department of Environmental Quality under ORS 466.903 and 466.905. [1997 c.788 §7]

 

      Note: See note under 466.901.

 

      466.917 Priority of financial assistance granted by Director of Transportation. In rendering financial assistance under ORS 836.015, the Director of Transportation shall give priority to any applicant who requests financial aid to cover those costs of upgrading or replacing fuel tanks that exceed the amount of a grant awarded to the applicant under ORS 466.903 and 466.905. In order to receive priority under this section, the applicant shall:

      (1) Otherwise meet eligibility requirements for financial assistance under ORS 836.015; and

      (2) Be a recipient of a grant under ORS 466.903 and 466.905. [1997 c.788 §8]

 

      Note: See note under 466.901.

 

      466.920 Priority for distribution of funds by State Marine Board. Notwithstanding ORS 830.150 (2)(a), in distributing funds under ORS 830.150 (1), the State Marine Board shall give priority to any applicant who applies for funds to cover those costs of upgrading or replacing fuel tanks that exceed the amount of a grant awarded to the applicant under ORS 466.903 and 466.905. In order to receive priority under this section, the applicant shall:

      (1) Otherwise meet eligibility requirements for receipt of funds distributed under ORS 830.150; and

      (2) Be a recipient of a grant under ORS 466.903 and 466.905. [1997 c.788 §9]

 

      Note: See note under 466.901.

 

CIVIL PENALTIES

 

      466.990 Civil penalties generally. (1) In addition to any other penalty provided by law, any person who violates ORS 466.005 to 466.385 and 466.992, a license condition or any Environmental Quality Commission rule or any order of the commission or Department of Environmental Quality pertaining to the generation, treatment, storage, disposal or transportation by air or water of hazardous waste, as defined by ORS 466.005, shall incur a civil penalty not to exceed $25,000 for each day of the violation.

      (2) The civil penalty authorized by subsection (1) of this section shall be imposed in the manner provided by ORS 468.135.

      (3) In addition to any other penalty provided by law, any person who violates a provision of ORS 466.605 to 466.680, or any rule or order entered or adopted under ORS 466.605 to 466.680, shall incur a civil penalty not to exceed $25,000. Each day of violation shall be considered a separate offense.

      (4) The civil penalty authorized by subsection (3) of this section shall be imposed in the manner provided by ORS 468.135, except that a penalty collected under this section shall be deposited to the fund established in ORS 466.670. [Formerly 466.880; 2009 c.267 §4]

 

      466.992 Civil penalties for damage to wildlife resulting from contamination of food or water supply. (1) Any person who has care, custody or control of a hazardous waste or a substance that would be a hazardous waste except for the fact that it is not discarded, useless or unwanted shall incur a civil penalty according to the schedule set forth in ORS 496.705 for the destruction, due to contamination of food or water supply by such waste or substance, of any of the wildlife referred to in ORS 496.705 that are the property of the state.

      (2) The civil penalty imposed under this section shall be in addition to other penalties prescribed by law. [Formerly 466.890; 2009 c.267 §5]

 

      466.994 Civil penalties for violations of underground storage tank regulations. (1) Any person who violates any provision of ORS 466.706 to 466.882 and this section, a rule adopted under ORS 466.706 to 466.882 and this section or the terms or conditions of any order or permit issued by the Department of Environmental Quality under ORS 466.706 to 466.882 and this section shall be subject to a civil penalty not to exceed $25,000 per violation per day of violation.

      (2) Each violation may be a separate and distinct offense and in the case of a continuing violation, each day’s continuance thereof may be deemed a separate and distinct offense.

      (3) The civil penalties authorized under this section shall be imposed in the manner provided by ORS 468.135 except that a penalty collected under subsection (1) of this section shall be deposited to the fund established in ORS 466.791. [Formerly 466.895; 2001 c.754 §7; 2009 c.267 §6]

 

CRIMINAL PENALTIES

 

      466.995 Criminal penalties. (1) Penalties provided in this section are in addition to and not in lieu of any other remedy specified in ORS 459.005 to 459.105, 459.205 to 459.385, 466.005 to 466.385 or 466.992.

      (2) Subject to ORS 153.022, violation by any person of a provision of ORS 466.605 to 466.680 or of any rule or order entered or adopted under ORS 466.605 to 466.680 is a Class A misdemeanor. Notwithstanding ORS 161.635, the maximum fine for a violation is $25,000. Each day of violation shall be considered a separate offense.

      (3) Subject to ORS 153.022, any person who knowingly violates any provision of ORS 466.706 to 466.882 and 466.994 or the rules adopted under ORS 466.706 to 466.882 and 466.994 commits a Class A misdemeanor. Notwithstanding ORS 161.635, the maximum fine for a violation is $25,000. Each day of violation shall be deemed a separate offense.

      (4) Subject to ORS 153.022, any person who knowingly violates any provision of ORS 465.200 to 465.545 or any rule or order adopted or issued under ORS 465.200 to 465.545 commits a Class A misdemeanor. Notwithstanding ORS 161.635, the maximum fine for a violation is $25,000. Each day of violation shall be deemed a separate offense.

      (5) Notwithstanding ORS 161.655, if a person incurring a fine under this section is a corporation, the corporation shall pay the fine provided for under this section. [Formerly 459.992; (3) enacted by 1985 c.733 §18; 1987 c.158 §93; subsection (4) enacted as 1987 c.539 §38; subsection (5) enacted as 1987 c.735 §24; 1993 c.422 §18; 1999 c.1051 §304; 2009 c.267 §7; 2011 c.597 §208]

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