2007 Oregon Code - Chapter 468 :: Chapter 468 - Environmental Quality Generally
Chapter 468 —
Environmental Quality Generally
2007 EDITION
ENVIRONMENTAL QUALITY GENERALLY
PUBLIC HEALTH AND SAFETY
GENERAL ADMINISTRATION
468.005Â Â Â Â Definitions
468.010Â Â Â Â Environmental
Quality Commission; appointment; confirmation; term; compensation and expenses
468.015Â Â Â Â Functions
of commission
468.020Â Â Â Â Rules
and standards
468.030Â Â Â Â Department
of Environmental Quality
468.035Â Â Â Â Functions
of department
468.040Â Â Â Â Director;
salary
468.045Â Â Â Â Functions
of director; delegation
468.050Â Â Â Â Deputy
director
468.055Â Â Â Â Contracts
with Department of Human Services
468.060Â Â Â Â Enforcement
of rules by health agencies
468.062Â Â Â Â Authority
of Department of Environmental Quality to require fingerprints
468.065Â Â Â Â Issuance
of permits; content; fees; use
468.067Â Â Â Â Organizational
standing to seek judicial review of final order in Title V permit proceeding
468.070Â Â Â Â Denial,
modification, suspension or revocation of permits
468.073Â Â Â Â Expedited
or enhanced regulatory process; payment; disposition of payments
468.075Â Â Â Â Revolving
fund; uses
UNIFORM TRANSBOUNDARY POLLUTION RECIPROCAL
ACCESS ACT
468.076Â Â Â Â Definitions
for ORS 468.076 to 468.089
468.078Â Â Â Â Action
for pollution originating in
468.079Â Â Â Â Action
for pollution originating in reciprocating jurisdiction
468.080Â Â Â Â Applicability
of
468.081Â Â Â Â Rights
of injured person
468.083Â Â Â Â Right
conferred under ORS 468.076 to 468.087 in addition to other rights
468.085Â Â Â Â Sovereign
immunity defense
468.087Â Â Â Â Application
and construction of ORS 468.076 to 468.087
468.089Â Â Â Â Short
title
ENFORCEMENT
468.090Â Â Â Â Complaint
procedure
468.095Â Â Â Â Investigatory
authority; entry on premises; status of records
468.100Â Â Â Â Enforcement
procedures; powers of regional authorities; status of procedures
468.110Â Â Â Â Appeal;
power of court to stay enforcement
468.115Â Â Â Â Enforcement
in cases of emergency
468.120Â Â Â Â Public
hearings; subpoenas, oaths, depositions
468.126Â Â Â Â Advance
notice
468.130Â Â Â Â Schedule
of civil penalties; rules; factors to be considered in imposing civil penalties
468.135Â Â Â Â Imposition
of civil penalties
468.140Â Â Â Â Civil
penalties for specified violations
POLLUTION CONTROL FACILITIES TAX CREDIT
468.150Â Â Â Â Field
sanitation and straw utilization and disposal methods as “pollution control
facilities”
468.153Â Â Â Â Legislative
findings and declarations
468.155Â Â Â Â Definitions
for ORS 468.155 to 468.190
468.160Â Â Â Â Policy
468.163Â Â Â Â Commencement
of construction or installation of facility
468.165Â Â Â Â Application
for certification of pollution control facilities; rules; fees
468.167Â Â Â Â Application
for precertification
468.170Â Â Â Â Action
on application; rejection; appeal; issuance of certificate; certification
468.172    “Environmental
management system” defined
468.173Â Â Â Â Applicable
percentage of certified cost of facility eligible for tax credit
468.180Â Â Â Â Conditions
for issuance of certificate under ORS 468.170
468.183Â Â Â Â Revocation
of certification for loss of Green Permit
468.185Â Â Â Â Procedure
to revoke certification; reinstatement
468.190Â Â Â Â Allocation
of costs to pollution control; rules
STATE POLLUTION CONTROL BONDS
468.195Â Â Â Â Issuance
of bonds authorized; principal amount
468.215Â Â Â Â Pollution
Control Fund
468.220Â Â Â Â Department
to administer fund; uses; legislative approval of grants; administrative
assessment
468.225Â Â Â Â Investment
of gross proceeds of agency bonds or other obligations
468.230Â Â Â Â Pollution
Control Sinking Fund; use; limitation
468.240Â Â Â Â Remedy
where default occurs on payment to state
468.245Â Â Â Â Acceptance
of federal funds
468.250Â Â Â Â Participation
in matching fund programs with federal government
468.253Â Â Â Â Authority
of director to act to benefit fund
468.255Â Â Â Â Limit
on grants and loans
468.260Â Â Â Â Return
of unexpended funds to state required; use of returned funds
468.263Â Â Â Â Definitions
for ORS 468.263 to 468.272
468.264Â Â Â Â Policy
468.265Â Â Â Â Powers
of county over pollution control facilities; limitations
468.266Â Â Â Â Issuance
of bonds
468.267Â Â Â Â Security
for bonds
468.268Â Â Â Â Enforcement
of bond obligation
468.269Â Â Â Â Trustees;
powers
468.270Â Â Â Â Tax
status of leasehold interest in facilities
468.271Â Â Â Â Effect
on procedure of awarding contracts; construction
468.272Â Â Â Â Application
of other laws relating to bonds
FINANCING TREATMENT WORKS
468.423Â Â Â Â Definitions
for ORS 468.423 to 468.440
468.425Â Â Â Â Policy
468.427Â Â Â Â Water
Pollution Control Revolving Fund; sources
468.428Â Â Â Â Lottery
bonds
468.429Â Â Â Â Uses
of revolving fund
468.431Â Â Â Â Water
Pollution Control Administration Fund; sources; uses
468.433Â Â Â Â Duties
of department; public agency loan program
468.437Â Â Â Â Loan
applications; eligibility; repayment; default remedy
468.439Â Â Â Â Borrowing
authority of public agency
468.440Â Â Â Â Loan
terms and interest rates; considerations; rules
RECLAIMED PLASTIC PRODUCT TAX CREDIT
468.451Â Â Â Â Definitions
for ORS 468.451 to 468.491
468.456Â Â Â Â Policy
468.461Â Â Â Â Application
for certification of investment to collect, transport or process reclaimed
plastic or manufacture reclaimed plastic product; rules; fee
468.466Â Â Â Â Action
on application; rejection; appeal; certification of investment
468.471Â Â Â Â Preliminary
certification of investment
468.476Â Â Â Â Final
certification
468.481Â Â Â Â Revocation
of certificate; consequences
468.486Â Â Â Â Allocation
of costs to collect, transport or process reclaimed plastic or manufacture
reclaimed plastic product; rules
468.491Â Â Â Â Limit
on costs certified by commission for tax credit
GREEN PERMITS
468.501Â Â Â Â Definitions
for ORS 468.501 to 468.521
468.503Â Â Â Â Purpose
of Green Permits
468.506Â Â Â Â Commission
rulemaking to carry out Green Permit program
468.508Â Â Â Â Eligibility
for Green Permit
468.511Â Â Â Â Environmental
laws not applicable to facility operating under Green Permit
468.513Â Â Â Â Judicial
review of agency decision on issuance of Green Permit
468.516Â Â Â Â Termination
of Green Permit
468.518Â Â Â Â Application
for permit or approval affected by termination of Green Permit
468.521Â Â Â Â Recovery
of costs of agency in developing, negotiating and publicizing Green Permit;
disposition of moneys collected
468.531Â Â Â Â Legislative
findings
468.533Â Â Â Â Willamette
River Cleanup Authority; purposes; membership; powers
ENVIRONMENTAL CRIMES
468.920Â Â Â Â Definitions
for ORS 468.922 to 468.956
468.922Â Â Â Â Unlawful
disposal, storage or treatment of hazardous waste in the second degree
468.926Â Â Â Â Unlawful
disposal, storage or treatment of hazardous waste in the first degree
468.929Â Â Â Â Unlawful
transport of hazardous waste in the second degree
468.931Â Â Â Â Unlawful
transport of hazardous waste in the first degree
468.933Â Â Â Â Determination
of number of punishable offenses under ORS 468.922, 468.926, 468.929 and
468.931
468.936Â Â Â Â Unlawful
air pollution in the second degree
468.939Â Â Â Â Unlawful
air pollution in the first degree
468.941Â Â Â Â Determination
of number of punishable offenses under ORS 468.936 and 468.939
468.943Â Â Â Â Unlawful
water pollution in the second degree
468.946Â Â Â Â Unlawful
water pollution in the first degree
468.949Â Â Â Â Determination
of number of punishable offenses under ORS 468.943 and 468.946
468.951Â Â Â Â Environmental
endangerment
468.953Â Â Â Â Supplying
false information to agency
468.956Â Â Â Â Refusal
to produce material subpoenaed by commission
468.959Â Â Â Â Upset
or bypass as affirmative defense
468.961Â Â Â Â Approval
of Attorney General or district attorney before bringing felony charge;
guidelines for bringing felony charge; model guidelines
468.962Â Â Â Â Notice
to Department of Revenue of environmental felony
468.963Â Â Â Â Environmental
audit privilege; exceptions; burden of proving privilege; waiver; disclosure
after in camera review
CIVIL PENALTIES
468.996Â Â Â Â Civil
penalty for intentional or reckless violation; rules
468.997Â Â Â Â Joinder
of certain offenses
GENERAL ADMINISTRATION
     468.005
Definitions. As used in ORS
448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to
454.755 and ORS chapters 468, 468A and 468B, 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) “Order” has the same meaning as given
in ORS 183.310.
     (5) “Person” includes individuals,
corporations, associations, firms, partnerships, joint stock companies, public
and municipal corporations, political subdivisions, the state and any agencies
thereof, and the federal government and any agencies thereof.
     (6) “Rule” has the same meaning as given
in ORS 183.310.
     (7) “Standard” or “standards” means such
measure of quality or purity for air or for any waters in relation to their
reasonable or necessary use as may be established by the commission pursuant to
ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535,
454.605 to 454.755 and ORS chapters 468, 468A and 468B. [Formerly 449.001]
     468.010
Environmental Quality Commission; appointment; confirmation; term; compensation
and expenses. (1) There is
created an Environmental Quality Commission. The commission shall consist of
five members, appointed by the Governor, subject to confirmation by the Senate
as provided in ORS 171.562 and 171.565.
     (2) The term of office of a member shall
be four years, but the members of the commission may be removed by the
Governor. Before the expiration of the term of a member, the Governor shall
appoint a successor to assume the duties of the member on July 1 next
following. A member shall be eligible for reappointment, but no member shall
serve more than two consecutive terms. In case of a vacancy for any cause, the
Governor shall make an appointment to become immediately effective for the
unexpired term.
     (3) A member of the commission is entitled
to compensation and expenses as provided in ORS 292.495. [Formerly 449.016]
     468.015
Functions of commission. It
is the function of the Environmental Quality Commission to establish the
policies for the operation of the Department of Environmental Quality in a
manner consistent with the policies and purposes of ORS 448.305, 454.010 to
454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS
chapters 468, 468A and 468B. In addition, the commission shall perform any
other duty vested in it by law. [1973 c.835 §4]
     468.020
Rules and standards. (1) In
accordance with the applicable provisions of ORS chapter 183, the Environmental
Quality Commission shall adopt such rules and standards as it considers
necessary and proper in performing the functions vested by law in the
commission.
     (2) Except as provided in ORS 183.335 (5),
the commission shall cause a public hearing to be held on any proposed rule or
standard prior to its adoption. The hearing may be before the commission, any
designated member thereof or any person designated by and acting for the
commission. [Formerly 449.173; 1977 c.38 §1]
     468.030
Department of Environmental Quality. There is hereby established in the executive-administrative branch of
the government of the state under the Environmental Quality Commission a
department to be known as the Department of Environmental Quality. The
department shall consist of the Director of the Department of Environmental
Quality and all personnel employed in the department. [Formerly 449.032]
     468.035
Functions of department. (1)
Subject to policy direction by the Environmental Quality Commission, the
Department of Environmental Quality:
     (a) Shall encourage voluntary cooperation
by the people, municipalities, counties, industries, agriculture, and other
pursuits, in restoring and preserving the quality and purity of the air and the
waters of the state in accordance with rules and standards established by the
commission.
     (b) May conduct and prepare, independently
or in cooperation with others, studies, investigations, research and programs
pertaining to the quality and purity of the air or the waters of the state and
to the treatment and disposal of wastes.
     (c) Shall advise, consult, 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
control of air or water pollution or for the formation and submission to the
legislature of interstate pollution control compacts or agreements.
     (d) May employ personnel, including
specialists and consultants, purchase materials and supplies, and enter into
contracts necessary to carry out the purposes set forth in ORS 448.305, 454.010
to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS
chapters 468, 468A and 468B.
     (e) Shall conduct and supervise programs
of air and water pollution control education, including the preparation and
distribution of information regarding air and water pollution sources and
control.
     (f) Shall provide advisory technical
consultation and services to units of local government and to state agencies.
     (g) Shall develop and conduct
demonstration programs in cooperation with units of local government.
     (h) Shall serve as the agency of the state
for receipt of moneys from the federal government or other public or private
agencies for the purposes of air and water pollution control, studies or
research and to expend moneys after appropriation thereof for the purposes
given.
     (i) Shall make such determination of
priority of air or water pollution control projects as may be necessary under
terms of statutes enacted by the Congress of the
     (j) Shall seek enforcement of the air and
water pollution laws of the state.
     (k) Shall institute or cause to be
instituted in a court of competent jurisdiction, proceedings to compel
compliance with any rule or standard adopted or any order or permit, or
condition thereof, issued pursuant to ORS 448.305, 454.010 to 454.040, 454.205
to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A
and 468B.
     (L) Shall encourage the formulation and
execution of plans in conjunction with air and water pollution control agencies
or with associations of counties, cities, industries and other persons who
severally or jointly are or may be the source of air or water pollution, for
the prevention and abatement of pollution.
     (m) May determine, by means of field
studies and sampling, the degree of air or water pollution in various regions
of the state.
     (n) May perform such other and further
acts as may be necessary, proper or desirable to carry out effectively the
duties, powers and responsibilities of the department as set forth in ORS
448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to
454.755 and ORS chapters 468, 468A and 468B.
     (o) Shall coordinate any activities of the
department related to a watershed enhancement project approved by the Oregon
Watershed Enhancement Board under ORS 541.375 with activities of other
cooperating state and federal agencies participating in the project.
     (2) Nothing in this section shall affect
the authority of the Department of Human Services to make and enforce rules:
     (a) Regarding the quality of water for
human or animal consumption pursuant to ORS 448.115 to 448.325, 624.010 to
624.121 and 624.310 to 624.430; and
     (b) Regarding the quality of water for
public swimming places pursuant to ORS 431.110.
     (3) Nothing in this section shall prevent
the State Department of Agriculture or the State Forestry Department from
independently receiving moneys from a public or private agency for the purposes
of preventing or controlling air or water pollution resulting from agricultural
or silvicultural activities or soil erosion, or for research related to such
purposes.
     (4)(a) In awarding a public contract under
ORS 279.835 to 279.855 or ORS chapter 279A, 279B or 279C for a removal or remedial
action pursuant to ORS 465.200 to 465.545, a corrective action or cleanup
action pursuant to ORS 466.005 to 466.385, 466.605 to 466.680 or 466.706 to
466.882 or a removal pursuant to ORS 468B.005 to 468B.030, 468B.035, 468B.048
to 468B.085, 468B.090, 468B.093, 468B.095 and 468B.300 to 468B.500, the
department, and the Oregon Department of Administrative Services, when
administering the establishment of such a contract on behalf of the Department
of Environmental Quality under ORS 279A.050 and 279A.140, shall subtract from
the amount of any bid or proposal the hazardous waste management fees and solid
waste fees that would be required by law to be paid to the department for waste
that would be disposed of at a solid waste disposal site or a hazardous waste
or PCB disposal facility, based on the bid or proposal. The amount to be
subtracted shall be established on the basis of reasonable preprocurement
estimates of the amount of waste that would be disposed of under the contract
and that would be subject to those fees.
     (b) The subtraction for fees under
paragraph (a) of this subsection shall apply only to a contract reasonably
anticipated to involve the disposal of no less than 50 tons of hazardous waste
or no less than 500 tons of solid waste. The Legislative Assembly finds that
making accurate advance estimates of amounts of waste that would be disposed of
in projects of this character is technically challenging and requires the
application of professional discretion. Therefore, no award of a contract under
this subsection shall be subject to challenge, under ORS 279B.410, 279B.415 or
279C.460 or otherwise, on the ground of the inaccuracy or claimed inaccuracy of
any such estimate.
     (c) The subtraction for fees under
paragraph (a) of this subsection shall not apply to the establishment, by or on
behalf of the department, of master contracts by which the department engages
the services of a contractor over a period of time for the purpose of issuing
work orders for the performance of environmental activities on a project or
projects for which the amounts of waste to be disposed of were not reasonably
identified at the inception of the master contracts. However, the department
shall require any contractor under a master contract to apply the subtraction
for fees under paragraph (a) of this subsection in the selection of any
subcontractor to perform the removal of waste in amounts equaling or exceeding
the amounts set forth in paragraph (b) of this subsection. Nothing in this
subsection shall be construed to prohibit the department or the Oregon
Department of Administrative Services from establishing contracts pursuant to
this section through contracting procedures authorized by ORS 279.835 to
279.855 and ORS chapters 279A, 279B and 279C that do not require the solicitation
of bids or proposals. [Formerly 449.082; 1983 c.740 §181; 1987 c.734 §11; 1995
c.536 §1; 1999 c.740 §6; 1999 c.849 §§102,103; 2001 c.495 §§17,18; 2003 c.75 §§42,43;
2003 c.407 §§25,26; 2003 c.794 §§288,289,290,291]
     468.040
Director; salary. The
Environmental Quality Commission shall appoint a director who shall hold office
at the pleasure of the commission. The salary of the Director of the Department
of Environmental Quality shall be fixed by the commission unless otherwise
provided by law. [Formerly 449.026]
     468.045
Functions of director; delegation. (1) Subject to policy direction by the Environmental Quality
Commission, the Director of the Department of Environmental Quality shall:
     (a) Be administrative head of the
Department of Environmental Quality;
     (b) Have power, within applicable
budgetary limitations, and in accordance with ORS chapter 240, to hire, assign,
reassign, and coordinate personnel of the department;
     (c) Administer and enforce the laws of the
state concerning environmental quality; and
     (d) Be authorized to participate in any
proceeding before any public officer, commission or body of the
     (2) In addition to duties otherwise
required by law, the director shall prescribe regulations for the government of
the department, the conduct of its employees, the assignment and performance of
its business and the custody, use and preservation of its records, papers and property
in a manner consistent with applicable law.
     (3) The director may delegate to any of
the employees of the department the exercise or discharge in the directorÂ’s
name of any power, duty or function of whatever character, vested in or imposed
by law upon the director. The official act of any such person so acting in the
directorÂ’s name and by the authority of the director shall be considered to be
an official act of the director. [Formerly 449.028]
     468.050
Deputy director. (1) With
the approval of the commission, the director may appoint a deputy director in
the unclassified service who shall serve at the pleasure of the director. The
deputy director shall have full authority to act for the director, subject to
directions of the director. The appointment of the deputy director shall be by
written order, filed with the Secretary of State.
     (2) The deputy director shall receive such
salary as may be provided by law or, if not so provided, as may be fixed by the
director, and shall be reimbursed for all expenses actually and necessarily
incurred by the deputy director in the performance of the official duties of
the deputy director. [1973 c.291 §2]
     Note: 468.050 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 468 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.055
Contracts with Department of Human Services. In addition to the authority granted under ORS 190.003 to 190.130,
when authorized by the Environmental Quality Commission and the Department of
Human Services, the Director of the Department of Environmental Quality and the
Director of Human Services may contract on behalf of their respective agencies
for the purposes of carrying out the functions of either agency, defining areas
of responsibility, furnishing services or employees by one to the other and
generally providing cooperative action in the interests of public health and
the quality of the environment in Oregon. Each contracting agency is directed
to maintain liaison with the other and to cooperate with the other in all
matters of joint concern or interest. [Formerly 449.062]
     468.060
Enforcement of rules by health agencies. On its own motion after public hearing, the Environmental Quality
Commission may grant specific authorization to the Department of Human Services
or to any county, district or city board of health to enforce any rule of the
commission relating to air or water pollution or solid wastes. [Formerly
449.064]
     468.062
Authority of Department of Environmental Quality to require fingerprints. For the purpose of requesting a state or
nationwide criminal records check under ORS 181.534, the Department of
Environmental Quality may require the fingerprints of a person who:
     (1) Is employed or applying for employment
by the department in the departmentÂ’s laboratory and is expected to be involved
with the receipt, handling or analysis of samples that are associated with a
credible terrorist threat and that might contain chemical agents;
     (2) Provides services or seeks to provide
services to the departmentÂ’s laboratory as a contractor and is expected to be
involved with the receipt, handling or analysis of samples that are associated
with a credible terrorist threat and that might contain chemical agents;
     (3) Is employed or applying for employment
by the department in a position involved with the issuance, review or
administration of permits for the treatment, disposal or storage of chemical
warfare agents; or
     (4) Provides services or seeks to provide
services to the department as a contractor involved with the issuance, review
or administration of permits for the treatment, disposal or storage of chemical
warfare agents. [2005 c.730 §64]
     Note: 468.062 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 468 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.065
Issuance of permits; content; fees; use. Subject to any specific requirements imposed by ORS 448.305, 454.010
to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS
chapters 468, 468A and 468B:
     (1) Applications for all permits
authorized or required by ORS 448.305, 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B
shall be made in a form prescribed by the Department of Environmental Quality.
Any permit issued by the department shall specify its duration, and the conditions
for compliance with the rules and standards, if any, adopted by the
Environmental Quality Commission pursuant to ORS 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters
468, 468A and 468B.
     (2) By rule and after hearing, the
commission may establish a schedule of fees for permits issued pursuant to ORS
468A.040, 468A.045, 468A.155 and 468B.050. Except as provided in ORS 468A.315
and 468B.051, the fees contained in the schedule shall be based upon the
anticipated cost of filing and investigating the application, of carrying out
applicable requirements of Title V, of issuing or denying the requested permit,
and of an inspection program to determine compliance or noncompliance with the
permit. The fee shall accompany the application for the permit. The fees for a
permit issued under ORS 468A.040 or 468B.050 may be imposed on an annual basis.
     (3) An applicant for certification of a
project under ORS 468B.040 or 468B.045, and any person submitting a notice of
intent to seek reauthorization, a preliminary application or an application for
reauthorization of a water right for a hydroelectric project under ORS
543A.030, 543A.035, 543A.075, 543A.080 or 543A.095 shall pay as a fee all
expenses incurred by the commission and department related to the review and
decision of the Director of the Department of Environmental Quality and
commission. These expenses may include legal expenses, expenses incurred in
evaluating the project, issuing or denying certification and expenses of
commissioning an independent study by a contractor of any aspect of the
proposed project. These expenses shall not include the costs incurred in
defending a decision of either the director or the commission against appeals
or legal challenges. The department shall bill applicants for costs incurred on
a monthly basis, and shall provide a biennial report describing how the moneys
were spent. An applicant may arrange with the department to pay the fee on a
quarterly basis. The department shall not charge a fee under the fee authority
in this subsection if the holder is being charged a fee under ORS 543.088 and
543.090 or 543A.405. In no event shall the department assess fees under this
section and under ORS 543A.405 for performance of the same work.
     (4) The department may require the
submission of plans, specifications and corrections and revisions thereto and
such other reasonable information as it considers necessary to determine the
eligibility of the applicant for the permit.
     (5) The department may require periodic
reports from persons who hold permits under ORS 448.305, 454.010 to 454.040,
454.205 to 454.225, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters
468, 468A and 468B. The report shall be in a form prescribed by the department
and shall contain such information as to the amount and nature or common
description of the pollutant, contaminant or waste and such other information
as the department may require.
     (6) Any fee collected under a schedule of
fees established pursuant to this section or ORS 468A.315 shall be deposited in
the State Treasury to the credit of an account of the department. The fees are
continuously appropriated to meet the expenses of the program for which they
are collected, except as follows:
     (a) The federal operating permit program
shall include a commensurate amount of the fee for any permit specified in this
section for which the department incurs costs associated with the requirements
of Title V and any fees collected under ORS 468A.315. Fees collected for the
federal operating permit program in any biennium that exceed the legislatively
approved budget, including amounts authorized by the Emergency Board for the
federal operating permit program for such biennium, shall be credited toward
the federal operating permit program budget for the following biennium.
     (b) Fees collected for permits issued
under ORS 468B.050 to authorize the discharge of wastes into the waters of the
state may be used to pay the expenses of any of the programs associated with
the issuance of permits under ORS 468B.050 to authorize the discharge of wastes
into the waters of the state.
     (c) The fees collected under a schedule of
fees established pursuant to this section or ORS 468A.315 by a regional air
pollution control authority pursuant to a permit program authorized by the
commission shall be retained by and shall be income to the regional authority
except as provided in ORS 468A.155 (2)(c). Such fees shall be accounted for and
expended in the same manner as are other funds of the regional authority.
However, if the department finds after hearing that the permit program
administered by the regional authority does not conform to the requirements of
the permit program approved by the commission pursuant to ORS 468A.155, such
fees shall be deposited and expended as are permit fees submitted to the
department.
     (7) As used in this section, “Title V” has
the meaning given in ORS 468A.300. [Formerly 449.733; 1975 c.445 §7; 1983 c.144
§2; 1983 c.740 §182; 1989 c.199 §1; 1989 c.833 §77; 1991 c.723 §1; 1991 c.752 §15;
1993 c.790 §2; 1997 c.449 §40b; 1999 c.873 §12; 2005 c.523 §3]
     468.067
Organizational standing to seek judicial review of final order in Title V
permit proceeding. (1)
Notwithstanding ORS 183.480 and 183.484, an association or organization has
standing to seek judicial review of any final order, as defined in ORS 183.310,
of the Department of Environmental Quality or of the Environmental Quality
Commission that relates to a proceeding described in subsection (2) of this
section if:
     (a) One or more members of the association
or organization is adversely affected or aggrieved by the order;
     (b) The interests that the association or
organization seeks to protect are germane to the purpose of the association or
organization; and
     (c) The nature of the claim and the relief
requested do not require that the members of the association or organization
who are adversely affected or aggrieved by the order participate in the
judicial review proceedings.
     (2) Subsection (1) of this section applies
to a permit proceeding pursuant to Title V of the Clean Air Act, 42 U.S.C. 7661
to 7661f, as implemented under ORS chapter 468A. [1999 c.511 §2]
     468.068 [1997 c.569 §§3,4(2); renumbered 468B.047 in
1999]
     468.070
Denial, modification, suspension or revocation of permits. (1) At any time, the Department of
Environmental Quality may refuse to issue, modify, suspend, revoke or refuse to
renew any permit issued pursuant to ORS 468.065 if it finds:
     (a) A material misrepresentation or false
statement in the application for the permit.
     (b) Failure to comply with the conditions
of the permit.
     (c) Violation of any applicable provisions
of ORS 466.605 to 466.680, 466.990 (3) and (4) and 466.995 (2) or ORS chapters
468, 468A and 468B.
     (d) Violation of any applicable rule,
standard or order of the Environmental Quality Commission.
     (2) The department may modify any permit
issued pursuant to ORS 468.065 if it finds that modification is necessary for
the proper administration, implementation or enforcement of the provisions of
ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535,
454.605 to 454.755, 466.605 to 466.680 and ORS chapters 468, 468A and 468B.
     (3) The procedure for modification,
suspension, revocation or refusal to issue or renew shall be the procedure for
a contested case as provided in ORS chapter 183. [1973 c.835 §14; 1979 c.184 §1;
1985 c.733 §22; 1993 c.422 §32]
     468.073
Expedited or enhanced regulatory process; payment; disposition of payments. (1) The Department of Environmental Quality
may enter into an agreement with any applicant, permittee or regulated entity
setting a schedule of payments to the department for the purpose of enabling
the department to expedite or enhance a regulatory process by contracting for
services, hiring additional staff or covering costs of activities not otherwise
provided during the ordinary course of department business. The department may
expend moneys received under the agreements for:
     (a) Activities undertaken by the
department under authority of any provision of ORS chapters 448, 453, 454, 459,
459A, 465, 466, 467, 468, 468A and 468B and ORS 475.405 to 475.495.
     (b) Administering and reviewing activities
described under subsection (3) of this section that are performed by a third
party.
     (2) Payments agreed to under subsection
(1) of this section shall be for services voluntarily requested by the
applicant, permittee or regulated entity. As part of the agreement, the
department may waive all or part of any fee otherwise imposed for those services.
The department shall not alter or establish processing priorities or schedules
based upon an expectation of entering into an agreement under subsection (1) of
this section.
     (3) Not later than July 1, 1998, the
department shall identify department activities or portions thereof suitable
for contracting out to third parties. Failure of the department to identify a
specific activity shall not prevent the expenditure of funds for that activity
or for department administration and review of that activity under an agreement
entered into pursuant to subsection (1) of this section.
     (4) Any moneys received by the department
under an agreement described under subsection (1) of this section shall not
exceed the cost to the department of providing the service to the applicant,
permittee or regulated entity.
     (5) Any payments received under an
agreement described under subsections (1) to (4) of this section shall be
deposited in the State Treasury to the credit of an account of the Department
of Environmental Quality and are continuously appropriated for the purposes
specified in the individual agreements. [1997 c.569 §§2,4(1)]
     468.075
Revolving fund; uses. (1) On
written request of the Director of the Department of Environmental Quality or
the authorized representative of the director, the Oregon Department of
Administrative Services shall draw warrants on amounts appropriated to the
Department of Environmental Quality for operating expenses for use by the
department as a revolving fund. The revolving fund shall not exceed the
aggregate sum of $10,000 including unreimbursed advances. The revolving fund
shall be deposited with the State Treasurer to be held in a special account
against which the department may draw checks.
     (2) The revolving fund may be used by the
department to pay for travel expenses, or advances therefor, for employees of
the department and for any consultants or advisers for whom payment of travel
expenses is authorized by law or for purchases required from time to time or
for receipt or disbursement of federal funds available under federal law.
     (3) All claims for reimbursement of
amounts paid from the revolving fund shall be approved by the department and by
the Oregon Department of Administrative Services. When such claims have been
approved, a warrant covering them shall be drawn in favor of the department and
charged against the appropriate fund or account, and shall be used to reimburse
the revolving fund. [Formerly 449.034; 1977 c.704 §7]
UNIFORM
TRANSBOUNDARY POLLUTION RECIPROCAL ACCESS ACT
     468.076
Definitions for ORS 468.076 to 468.089. As used in ORS 468.076 to 468.089:
     (1) “Person” means an individual,
corporation, business trust, estate, trust, partnership, association, joint
venture, government in its private or public capacity, governmental subdivision
or agency, or any other legal entity.
     (2) “Reciprocating jurisdiction” means a
state of the United States of America, the District of Columbia, the
Commonwealth of Puerto Rico, a territory or possession of the United States of
America or a province or territory of Canada, that has enacted an Act to
provide substantially equivalent access to its courts and administrative
agencies as provided in ORS 468.076 to 468.087. [1991 c.826 §2]
     Note: 468.076 to 468.089 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
468 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.078
Action for pollution originating in
     Note: See note under 468.076.
     468.079
Action for pollution originating in reciprocating jurisdiction. A person who suffers, or is threatened with,
injury to the person or property in a reciprocating jurisdiction caused by
pollution originating, or that may originate, in
     Note: See note under 468.076.
     468.080
Applicability of
     Note: See note under 468.076.
     468.081
Rights of injured person.
ORS 468.076 to 468.087 do not accord a person injured or threatened with injury
in another jurisdiction any rights superior to those that the person would have
if injured or threatened with injury in Oregon. [1991 c.826 §6]
     Note: See note under 468.076.
     468.083
Right conferred under ORS 468.076 to 468.087 in addition to other rights. The right provided in ORS 468.076 to 468.087
is in addition to, and not in derogation of, any other right. [1991 c.826 §7]
     Note: See note under 468.076.
     468.085
Sovereign immunity defense.
The defense of sovereign immunity is applicable in any action or other
proceeding brought under ORS 468.076 to 468.087 only to the extent that it
would apply to a person injured or threatened with injury in
     Note: See note under 468.076.
     468.087
Application and construction of ORS 468.076 to 468.087. ORS 468.076 to 468.087 shall be applied and
construed to carry out the general purpose of ORS 468.076 to 468.089 to make
uniform the law with respect to the subject of ORS 468.076 to 468.089 among the
jurisdictions enacting it. [1991 c.826 §9]
     Note: See note under 468.076.
     468.089
Short title. ORS 468.076 to
468.087 shall be known and may be cited as the “Uniform Transboundary Pollution
Reciprocal Access Act.” [1991 c.826 §1]
     Note: See note under 468.076.
ENFORCEMENT
     468.090
Complaint procedure. (1) In
case any written substantiated complaint is filed with the Department of
Environmental Quality which it has cause to believe, or in case the department
itself has cause to believe, that any person is violating any rule or standard
adopted by the Environmental Quality Commission or any permit issued by the
department by causing or permitting water pollution or air pollution or air
contamination, the department shall cause an investigation thereof to be made.
If it finds after such investigation that such a violation of any rule or
standard of the commission or of any permit issued by the department exists, it
shall by conference, conciliation and persuasion endeavor to eliminate the
source or cause of the pollution or contamination which resulted in such
violation.
     (2) In case of failure to remedy the
violation, the department shall commence enforcement proceedings pursuant to
the procedures set forth in ORS chapter 183 for a contested case and in ORS
468B.032. [Formerly 449.815; 1999 c.975 §3]
     468.095
Investigatory authority; entry on premises; status of records. (1) The Department of Environmental Quality
shall have the power to enter upon and inspect, at any reasonable time, any
public or private property, premises or place for the purpose of investigating
either an actual or suspected source of water pollution or air pollution or air
contamination or to ascertain compliance or noncompliance with any rule or
standard adopted or order or permit issued pursuant to ORS 448.305, 454.010 to
454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS
chapters 468, 468A and 468B. The Environmental Quality Commission shall also
have access to any pertinent records relating to such property, including but
not limited to blueprints, operation and maintenance records and logs,
operating rules and procedures.
     (2) Unless classified by the Director of
the Department of Environmental Quality as confidential, any records, reports
or information obtained under ORS 448.305, 454.010 to 454.040, 454.205 to
454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and
468B 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, other than emission data, if made public, would divulge a secret
process, device or method of manufacturing or production entitled to protection
as trade secrets of such person, the director shall classify such record,
report or information, or particular part thereof, other than emission data,
confidential and such confidential record, report or information, or particular
part thereof, other than emission data, shall not be made a part of any public
record or used in any public hearing unless it is determined by a circuit court
that evidence thereof is necessary to the determination of an issue or issues
being decided at a public hearing. [Formerly 449.169; 1975 c.173 §1]
     468.100
Enforcement procedures; powers of regional authorities; status of procedures. (1) Whenever the Environmental Quality
Commission has good cause to believe that any person is engaged or is about to
engage in any acts or practices which constitute a violation of ORS 448.305,
454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755
and ORS chapters 468, 468A and 468B, or any rule, standard or order adopted or
entered pursuant thereto, or of any permit issued pursuant to ORS 448.305,
454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755
and ORS chapters 468, 468A and 468B, the commission may institute actions or
proceedings for legal or equitable remedies to enforce compliance thereto or to
restrain further violations.
     (2) The proceedings authorized by
subsection (1) of this section may be instituted without the necessity of prior
agency notice, hearing and order, or during said agency hearing if it has been
initially commenced by the commission.
     (3) A regional authority formed under ORS
468A.105 may exercise the same functions as are vested in the commission by
this section insofar as such functions relate to air pollution control and are
applicable to the conditions and situations of the territory within the
regional authority. The regional authority shall carry out these functions in
the manner provided for the commission to carry out the same functions.
     (4) The provisions of this section are in
addition to and not in substitution of any other civil or criminal enforcement
provisions available to the commission or a regional authority. The provisions
of this section shall not prevent the maintenance of actions for legal or
equitable remedies relating to private or public nuisances brought by any other
person, or by the state on relation of any person without prior order of the
commission. [1973 c.826 §2; 1979 c.284 §153]
     468.105 [Repealed by 1974 c.36 §28]
     468.110
Appeal; power of court to stay enforcement. Any person adversely affected or aggrieved by any order of the
Environmental Quality Commission may appeal from such order in accordance with
the provisions of ORS chapter 183. However, notwithstanding ORS 183.482 (3),
relating to a stay of enforcement of an agency order and the giving of bond or
other undertaking related thereto, any reviewing court before it may stay an
order of the commission shall give due consideration to the public interest in
the continued enforcement of the commissionÂ’s order, and may take testimony
thereon. [Formerly 449.090; 2007 c.71 §148]
     468.115
Enforcement in cases of emergency. (1) Whenever it appears to the Department of Environmental Quality
that water pollution or air pollution or air contamination is presenting an
imminent and substantial endangerment to the health of persons, at the
direction of the Governor the department shall, without the necessity of prior
administrative procedures or hearing, enter an order against the person or
persons responsible for the pollution or contamination requiring the person or
persons to cease and desist from the action causing the pollution or
contamination. Such order shall be effective for a period not to exceed 10 days
and may be renewed thereafter by order of the Governor.
     (2) The state and local police shall
cooperate in the enforcement of any order issued pursuant to subsection (1) of
this section and shall require no further authority or warrant in executing and
enforcing such an order.
     (3) If any person fails to comply with an
order issued pursuant to subsection (1) of this section, the circuit court in
which the source of water pollution or air pollution or air contamination is
located shall compel compliance with the order in the same manner as with an
order of that court. [Formerly 449.980]
     468.120
Public hearings; subpoenas, oaths, depositions. (1) The Environmental Quality Commission,
its members or a person designated by and acting for the commission may:
     (a) Conduct public hearings.
     (b) Issue subpoenas for the attendance of
witnesses and the production of books, records and documents relating to
matters before the commission.
     (c) Administer oaths.
     (d) Take or cause to be taken depositions
and receive such pertinent and relevant proof as may be considered necessary or
proper to carry out duties of the commission and Department of Environmental
Quality pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.
     (2) Subpoenas authorized by this section
may be served by any person authorized by the person issuing the subpoena.
Witnesses who are subpoenaed shall receive the fees and mileage provided in ORS
44.415 (2). [Formerly 449.048; 1989 c.980 §14b]
     468.125 [Formerly 449.967; 1977 c.317 §2; 1983 c.703
§17; 1985 c.735 §3; 1987 c.741 §19; repealed by 1991 c.650 §8 (468.126 enacted
in lieu of 468.125)]
     468.126
Advance notice. (1) No civil
penalty prescribed under ORS 468.140 shall be imposed for a violation of an
air, water or solid waste permit issued by the Department of Environmental
Quality until the permittee has received five daysÂ’ advance warning in writing
from the department, specifying the violation and stating that a penalty will
be imposed for the violation unless the permittee submits the following to the
department in writing within five working days after receipt of the advance
warning:
     (a) A response certifying that the
permitted facility is complying with applicable law;
     (b) A proposal to bring the facility into
compliance with applicable law that is acceptable to the department and that
includes but is not limited to proposed compliance dates; or
     (c) For a water quality permit violation,
a request in writing to the department that the department follow the
procedures prescribed under ORS 468B.032. Notwithstanding the requirement for a
response to the department within five working days, the permittee may file a
request under this paragraph within 20 days from the date of service of the
notice.
     (2) No advance notice shall be required
under subsection (1) of this section if:
     (a) The violation is intentional;
     (b) The water or air violation would not
normally occur for five consecutive days;
     (c) The permittee has received prior
advance warning of any violation of the permit within the 36 months immediately
preceding the violation;
     (d) The permittee is subject to the
federal operating permit program under ORS 468A.300 to 468A.320 and violates
any rule or standard adopted or permit or order issued under ORS chapter 468A
and applicable to the permittee; or
     (e) The requirement to provide such notice
would disqualify a state program from federal approval or delegation. [1991
c.650 §9 (enacted in lieu of 468.125); 1993 c.790 §3; 1999 c.975 §4]
     468.130
Schedule of civil penalties; rules; factors to be considered in imposing civil
penalties. (1) The
Environmental Quality Commission shall adopt by rule a schedule or schedules
establishing the amount of civil penalty that may be imposed for a particular
violation. Except as provided in ORS 468.140 (3), no civil penalty shall exceed
$10,000 per day. Where the classification involves air pollution, the
commission shall consult with the regional air quality control authorities
before adopting any classification or schedule.
     (2) In imposing a penalty pursuant to the
schedule or schedules authorized by this section, the commission and regional
air quality control authorities shall consider the following factors:
     (a) The past history of the person
incurring a penalty in taking all feasible steps or procedures necessary or
appropriate to correct any violation.
     (b) Any prior violations of statutes,
rules, orders and permits pertaining to water or air pollution or air
contamination or solid waste disposal.
     (c) The economic and financial conditions of
the person incurring a penalty.
     (d) The gravity and magnitude of the
violation.
     (e) Whether the violation was repeated or
continuous.
     (f) Whether the cause of the violation was
an unavoidable accident, negligence or an intentional act.
     (g) The violator’s cooperativeness and
efforts to correct the violation.
     (h) Any relevant rule of the commission.
     (3) The penalty imposed under this section
may be remitted or mitigated upon such terms and conditions as the commission
or regional authority considers proper and consistent with the public health
and safety.
     (4) The commission may by rule delegate to
the Department of Environmental Quality, upon such conditions as deemed
necessary, all or part of the authority of the commission provided in
subsection (3) of this section to remit or mitigate civil penalties. [Formerly
449.970; 1977 c.317 §3; 1987 c.266 §2; 1991 c.650 §4]
     468.135
Imposition of civil penalties.
(1) Any civil penalty under ORS 468.140 shall be imposed in the manner provided
in ORS 183.745.
     (2) All penalties recovered under ORS
468.140 shall be paid into the State Treasury and credited to the General Fund,
or in the event the penalty is recovered by a regional air quality control
authority, it shall be paid into the county treasury of the county in which the
violation occurred. [Formerly 449.973; 1989 c.706 §17; 1991 c.650 §6; 1991
c.734 §37]
     468.140
Civil penalties for specified violations. (1) In addition to any other penalty provided by law, any person who
violates any of the following shall incur a civil penalty for each day of
violation in the amount prescribed by the schedule adopted under ORS 468.130:
     (a) The terms or conditions of any permit
required or authorized by law and issued by the Department of Environmental
Quality or a regional air quality control authority.
     (b) Any provision of ORS 164.785, 448.305,
454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755,
ORS chapter 467 and ORS chapters 468, 468A and 468B.
     (c) Any rule or standard or order of the
Environmental Quality Commission adopted or issued pursuant to ORS 448.305,
454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755,
ORS chapter 467 and ORS chapters 468, 468A and 468B.
     (d) Any term or condition of a variance
granted by the commission or department pursuant to ORS 467.060.
     (e) Any rule or standard or order of a
regional authority adopted or issued under authority of ORS 468A.135.
     (f) The financial assurance requirement
under ORS 468B.390 and 468B.485 or any rule related to the financial assurance
requirement under ORS 468B.390.
     (2) Each day of violation under subsection
(1) of this section constitutes a separate offense.
     (3)(a) In addition to any other penalty
provided by law, any person who intentionally or negligently causes or permits
the discharge of oil into the waters of the state shall incur a civil penalty
not to exceed the amount of $20,000 for each violation.
     (b) In addition to any other penalty
provided by law, the following persons shall incur a civil penalty not to
exceed the amount of $10,000 for each day of violation:
     (A) Any person who violates the terms or
conditions of a permit authorizing waste discharge into the air or waters of
the state.
     (B) Any person who violates any law, rule,
order or standard in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B
relating to air or water pollution.
     (C) Any person who violates the provisions
of a rule adopted or an order issued under ORS 459A.590.
     (4) In addition to any other penalty
provided by law, any person who violates the provisions of ORS 468B.130 shall
incur a civil penalty not to exceed the amount of $500 for each day of
violation.
     (5) Subsection (1)(c) and (e) of this
section does not apply to violations of motor vehicle emission standards which
are not violations of standards for control of noise emissions.
     (6) Notwithstanding the limits of ORS
468.130 (1) and in addition to any other penalty provided by law, any person
who intentionally or negligently causes or permits open field burning contrary
to the provisions of ORS 468A.555 to 468A.620 and 468A.992, 476.380 and 478.960
shall be assessed by the department a civil penalty of at least $20 but not
more than $40 for each acre so burned. Any fines collected by the department
pursuant to this subsection shall be deposited with the State Treasurer to the
credit of the General Fund and shall be available for general governmental
expense. As used in this subsection, “open field burning” does not include
propane flaming of mint stubble. [Formerly 449.993; 1975 c.559 §14; 1977 c.511 §5;
1979 c.353 §1; 1987 c.513 §1; 1989 c.268 §4; 1989 c.1042 §7; 1991 c.764 §6;
1997 c.473 §1; 2001 c.688 §7]
POLLUTION
CONTROL FACILITIES TAX CREDIT
     468.150
Field sanitation and straw utilization and disposal methods as “pollution
control facilities.” After
alternative methods for field sanitation and straw utilization and disposal are
approved by the Department of Environmental Quality, “pollution control
facility,” as defined in ORS 468.155, shall include such approved alternative
methods and persons purchasing and utilizing such methods shall be eligible for
the benefits allowed by ORS 468.155 to 468.190. [1975 c.559 §15; 1999 c.59 §136]
     Note: 468.150 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 468 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.153
Legislative findings and declarations. (1) The Legislative Assembly finds that the concept of environmental
responsibility has matured beyond basic compliance with regulatory requirements
to one in which citizens and businesses voluntarily implement innovative
solutions to achieve shared environmental goals.
     (2) The Legislative Assembly declares that
a pollution control tax credit that shifts the majority of the incentive away
from compensation for basic regulatory compliance and toward encouraging
voluntary investment is an effective way to achieve environmental goals.
     (3) The Legislative Assembly finds and
declares that it is the policy of this state to promote sustainability and
provide incentives for the voluntary prevention, elimination, reduction or
control of air pollution, water pollution, solid waste and hazardous waste
through the voluntary application of innovative solutions to achieve the
environmental goals of this state.
     (4) The Legislative Assembly declares it
to be the policy of this state to promote social, economic and environmental
principles of sustainability by providing incentives to individuals and
businesses that support social, economic and environmental sustainability
goals. [2001 c.928 §9]
     Note: 468.153 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 468 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.155
Definitions for ORS 468.155 to 468.190. (1)(a) As used in ORS 468.155 to 468.190, unless the context requires
otherwise, “pollution control facility” or “facility” means any land,
structure, building, installation, excavation, machinery, equipment or device,
or any addition to, reconstruction of or improvement of, land or an existing
structure, building, installation, excavation, machinery, equipment or device
reasonably used, erected, constructed or installed by any person if:
     (A) The principal purpose of such use,
erection, construction or installation is to comply with a requirement imposed
by the Department of Environmental Quality, the federal Environmental
Protection Agency or regional air pollution authority to prevent, control or
reduce air, water or noise pollution or solid or hazardous waste or to recycle
or provide for the appropriate disposal of used oil; or
     (B) The sole purpose of such use,
erection, construction or installation is to prevent, control or reduce a
substantial quantity of air, water or noise pollution or solid or hazardous
waste or to recycle or provide for the appropriate disposal of used oil.
     (b) Such prevention, control or reduction
required by this subsection shall be accomplished by:
     (A) The disposal or elimination of or
redesign to eliminate industrial waste and the use of treatment works for
industrial waste as defined in ORS 468B.005;
     (B) The disposal or elimination of or
redesign to eliminate air contaminants or air pollution or air contamination
sources and the use of air cleaning devices as defined in ORS 468A.005;
     (C) The substantial reduction or
elimination of or redesign to eliminate noise pollution or noise emission
sources as defined by rule of the Environmental Quality Commission;
     (D) The use of a material recovery process
which obtains useful material from material that would otherwise be solid waste
as defined in ORS 459.005, hazardous waste as defined in ORS 466.005, or used
oil as defined in ORS 459A.555; or
     (E) The treatment, substantial reduction
or elimination of or redesign to treat, substantially reduce or eliminate
hazardous waste as defined in ORS 466.005.
     (2)(a) As used in ORS 468.155 to 468.190, “pollution
control facility” or “facility” includes a nonpoint source pollution control
facility.
     (b) As used in this subsection, “nonpoint
source pollution control facility” means a facility that the Environmental
Quality Commission has identified by rule as reducing or controlling
significant amounts of nonpoint source pollution.
     (3) As used in ORS 468.155 to 468.190, “pollution
control facility” or “facility” does not include:
     (a) Air conditioners;
     (b) Septic tanks or other facilities for
human waste;
     (c) Property installed, constructed or
used for moving sewage to the collecting facilities of a public or quasi-public
sewerage system;
     (d) Any distinct portion of a pollution control
facility that makes an insignificant contribution to the principal or sole
purpose of the facility including the following specific items:
     (A) Office buildings and furnishings;
     (B) Parking lots and road improvements;
     (C) Landscaping;
     (D) External lighting;
     (E) Company or related signs; and
     (F) Automobiles;
     (e) Replacement or reconstruction of all
or a part of any facility for which a pollution control facility certificate
has previously been issued under ORS 468.170, except:
     (A) If the cost to replace or reconstruct
the facility is greater than the like-for-like replacement cost of the original
facility due to a requirement imposed by the department, the federal
Environmental Protection Agency or a regional air pollution authority, then the
facility may be eligible for tax credit certification up to an amount equal to
the difference between the cost of the new facility and the like-for-like
replacement cost of the original facility; or
     (B) If a facility is replaced or
reconstructed before the end of its useful life then the facility may be
eligible for the remainder of the tax credit certified to the original
facility;
     (f) Asbestos abatement; or
     (g) Property installed, constructed or
used for cleanup of emergency spills or unauthorized releases, as defined by
the commission. [Formerly 449.605; 1975 c.496 §1; 1977 c.795 §1; 1979 c.802 §1;
1983 c.637 §1; 1987 c.596 §4; 1989 c.802 §4; 1999 c.826 §1]
     468.160
Policy. In the interest of
the public peace, health and safety, it is the policy of the State of Oregon to
assist in the prevention, control and reduction of air, water and noise
pollution and solid waste, hazardous wastes and used oil in this state by
providing tax relief with respect to Oregon facilities constructed to
accomplish such prevention, control and reduction. [Formerly 449.615; 1975
c.496 §2; 1977 c.795 §2; 1979 c.802 §2]
     468.163
Commencement of construction or installation of facility. For purposes of ORS 468.155 to 468.190, the
construction or installation of a facility is commenced when the person
constructing or installing the facility has obtained all necessary preliminary
approvals and has begun continuous on-site modification, construction,
installation or other activity, the completion of which will cause the person
to be able to obtain certification under ORS 468.155 to 468.190. Interruptions
and delays resulting from natural disasters, strikes, litigation or other
matters beyond the control of the owner shall be disregarded in determining
whether the actions undertaken by the person are continuous. The burden of
demonstrating that construction or installation of a facility is commenced
shall be borne by the person filing an application for certification under ORS
468.165. [2001 c.928 §8a]
     468.165
Application for certification of pollution control facilities; rules; fees. (1) Any person may apply to the
Environmental Quality Commission for certification under ORS 468.170 of a
pollution control facility or portion thereof erected, constructed or installed
by the person in Oregon if:
     (a) The air or water pollution control
facility was erected, constructed or installed on or after January 1, 1967.
     (b) The noise pollution control facility
was erected, constructed or installed on or after January 1, 1977.
     (c) The solid waste facility was under
construction on or after January 1, 1973, the hazardous waste or used oil
facility was under construction on or after October 3, 1979, and if:
     (A) The facility’s principal or sole
purpose conforms to the requirements of ORS 468.155 (1) and (2);
     (B) The facility will utilize material
that would otherwise be solid waste as defined in ORS 459.005, hazardous waste
as defined in ORS 466.005 or used oil as defined in ORS 459A.555 by mechanical
process or chemical process or through the production, processing including
presegregation, or use of, materials which have useful chemical or physical
properties and which may be used for the same or other purposes, or materials
which may be used in the same kind of application as its prior use without change
in identity;
     (C) The end product of the utilization is
an item of real economic value;
     (D) The end product of the utilization,
other than a usable source of power, is competitive with an end product
produced in another state; and
     (E) The
     (d) The hazardous waste control facility
was erected, constructed or installed on or after January 1, 1984, and if:
     (A) The facility’s principal or sole purpose
conforms to the requirements of ORS 468.155 (1) and (2); and
     (B) The facility is designed to treat,
substantially reduce or eliminate hazardous waste as defined in ORS 466.005.
     (2) The application shall be made in
writing in a form prescribed by the Department of Environmental Quality and
shall contain information on the actual cost of the facility, a description of
the materials incorporated therein, all machinery and equipment made a part
thereof, the existing or proposed operational procedure thereof, and a
statement of the purpose of prevention, control or reduction of air, water or
noise pollution or solid or hazardous waste or recycling or appropriate
disposal of used oil served or to be served by the facility and the portion of
the actual cost properly allocable to the prevention, control or reduction of
air, water or noise pollution or solid or hazardous waste or to recycling or
appropriately disposing of used oil.
     (3) The Director of the Department of
Environmental Quality may require any further information the director
considers necessary before a certificate is issued.
     (4) The application shall be accompanied
by a fee established under subsection (5) of this section. The fee may be
refunded if the application for certification is rejected.
     (5) By rule and after hearing the
commission may adopt a schedule of reasonable fees which the department may
require of applicants for certificates issued under ORS 468.167 and 468.170.
Before the adoption or revision of any such fees the commission shall estimate
the total cost of the program to the department. The fees shall be based on the
anticipated cost of filing, investigating, granting and rejecting the
applications and shall be designed not to exceed the total cost estimated by
the commission. Any excess fees shall be held by the department and shall be
used by the commission to reduce any future fee increases. The fee may vary
according to the size and complexity of the facility. The fees may not be
considered by the commission as part of the cost of the facility to be
certified.
     (6) The application shall be submitted
after construction of the facility is substantially completed and the facility
is placed in service and within one year after construction of the facility is
substantially completed. Failure to file a timely application shall make the
facility ineligible for tax credit certification. An application may not be
considered filed until it is complete and ready for processing. The commission
may grant an extension of time to file an application for circumstances beyond
the control of the applicant that would make a timely filing unreasonable.
However, the period for filing an application may not be extended to a date
beyond December 31, 2008. [Formerly 449.625; 1974 c.37 §2; 1975 c.496 §3; 1977
c.795 §3; 1979 c.802 §3; 1981 c.359 §1; 1983 c.637 §2; 1989 c.802 §5; 1995
c.746 §2; 1999 c.826 §2; 2001 c.928 §1]
     468.167
Application for precertification. (1) Any person proposing to apply for certification for tax relief
under ORS 468.155 to 468.190 may apply, before the completion of a pollution
control facility, for precertification of the facility with the Environmental
Quality Commission.
     (2)(a) The application shall be made in
writing in a form prescribed by the Department of Environmental Quality. The
application shall contain the following information:
     (A) A statement of the purpose of
prevention, control or reduction of air, water or noise pollution or solid or
hazardous waste or recycling or appropriate disposal of used oil served or to
be served by the facility.
     (B) A description of the materials for
incorporation into the facility or incorporated into the facility, machinery
and equipment to be made or made a part of the facility and the proposed or
existing operational procedure of the facility.
     (C) Any further information the Director
of the Department of Environmental Quality considers necessary before
precertification is issued.
     (b) The application need not contain
information on the actual cost of the facility or the portion of the actual
cost properly allocable to the prevention, control or reduction of air, water
or noise pollution or solid or hazardous waste or to recycling or appropriately
disposing of used oil.
     (c) The application shall be accompanied
by a fee as provided under ORS 468.165 (5). The fee may be refunded if the
application for preliminary certification is rejected.
     (3) If the commission determines that the
person and the pollution control facility will be eligible for tax relief under
ORS 307.405 or 315.304 if the facility is erected, constructed, reconstructed,
added to, installed, improved or used in accordance with the application for
precertification, the commission shall precertify the facility by approving the
application.
     (4) If the facility is erected,
constructed, reconstructed, added to, installed, improved or used as proposed
in the application for precertification, the commissionÂ’s approval of the
application shall be prima facie evidence that the facility is qualified for
certification for tax relief under ORS 468.170. However, precertification shall
not ensure that a facility erected, constructed, reconstructed, added to,
installed, improved or used by the precertified person will receive
certification under ORS 468.170 or tax relief under ORS 307.405 or 315.304.
     (5) If the commission fails or refuses to
precertify a person and facility, the person may appeal as provided in ORS
468.170 (3). [1995 c.746 §6]
     468.170
Action on application; rejection; appeal; issuance of certificate; certification. (1) The Environmental Quality Commission
shall act on an application for certification before the 120th day after the
filing of the application under ORS 468.165. The action of the commission shall
include certification of the actual cost of the facility and the portion of the
actual cost properly allocable to the prevention, control or reduction of air,
water or noise pollution or solid or hazardous waste or to recycling or
appropriately disposing of used oil. The actual cost or portion of the actual
cost certified may not exceed the taxpayerÂ’s own cash investment in the
facility or portion of the facility. Each certificate shall bear a separate
serial number for each such facility.
     (2) If the commission rejects an
application for certification, or certifies a lesser actual cost of the
facility or a lesser portion of the actual cost properly allocable to the
prevention, control or reduction of air, water or noise pollution or solid or
hazardous waste or to recycling or appropriately disposing of used oil than was
claimed in the application for certification, the commission shall cause
written notice of its action, and a concise statement of the findings and
reasons therefor, to be sent by registered or certified mail to the applicant
before the 120th day after the filing of the application.
     (3) If the application is rejected for any
reason, including the information furnished by the applicant as to the cost of
the facility, or if the applicant is dissatisfied with the certification of
actual cost or portion of the actual cost properly allocable to prevention,
control or reduction of air, water or noise pollution or solid or hazardous
waste or to recycling or appropriately disposing of used oil, the applicant may
appeal from the rejection as provided in ORS 468.110. The rejection or the
certification is final and conclusive on all parties unless the applicant takes
an appeal therefrom as provided in ORS 468.110 before the 30th day after notice
was mailed by the commission.
     (4)(a) The commission shall certify a pollution
control, solid waste, hazardous waste or used oil facility or portion thereof,
for which an application has been made under ORS 468.165, if the commission
finds that the facility:
     (A) Was erected, constructed or installed
in accordance with the requirements of ORS 468.165 (1);
     (B) Is designed for, and is being operated
or will operate in accordance with the requirements of ORS 468.155; and
     (C) Is necessary to satisfy the intents
and purposes of ORS 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535,
454.605 to 454.755, ORS chapters 459, 459A, 466 and 467 and ORS chapters 468,
468A and 468B and rules thereunder.
     (b) No determination of the proportion of
the actual cost of the facility to be certified shall be made until receipt of
the application.
     (c) If one or more facilities constitute
an operational unit, the commission may certify such facilities under one
certificate.
     (d) A certificate under this section is
effective for purposes of tax relief in accordance with ORS 307.405 and 315.304
if, on or before December 31, 2007, erection, construction or installation of
the facility is completed, the facility is placed in service and the
application for certification is filed with the commission under ORS 468.165.
     (5) A person receiving a certificate under
this section may take tax relief only under ORS 315.304, depending upon the tax
status of the personÂ’s trade or business except that:
     (a) A corporation organized under ORS
chapter 65 or any subsequent transferee of the corporation shall take tax
relief only under ORS 307.405; and
     (b)(A) A corporation organized under ORS
chapter 62 or any predecessor to ORS chapter 62 relating to the incorporation
of cooperative associations or the subsequent transferee of the corporation may
make an irrevocable election to take the tax relief under either ORS 315.304 or
307.405. The corporation shall make the election at the time of applying for
the certificate, except that a corporation receiving a certificate prior to
December 31, 1995, may make the election at any time on or before December 31,
1995. If a corporation elects on or before December 31, 1995, to take the tax
relief under ORS 315.304, any income taxes, penalties or interest otherwise
payable by the corporation for improperly taking the tax relief under ORS
315.304 in a taxable year prior to making the election shall be waived.
     (B) In the case of a corporation making
the election under subparagraph (A) of this paragraph, the election applies to:
     (i) All existing or future facilities that
are certified under this section, if the corporation claimed a credit under ORS
315.304 for a tax year beginning prior to December 31, 1995; or
     (ii) All future facilities that are
certified under this section, if the corporation did not claim a credit under ORS
315.304 for a tax year beginning prior to December 31, 1995.
     (6) If the person receiving the
certificate is a partnership, each partner shall be entitled to take tax credit
relief as provided in ORS 315.304, based on that partnerÂ’s pro rata share of the
certified cost of the facility.
     (7) Certification under this section of a
pollution control facility qualifying under ORS 468.165 (1) shall be granted
for a period of 10 consecutive years which 10-year period shall begin with the
tax year of the person in which the facility is certified under this section,
except that if ad valorem tax relief is utilized by a corporation organized
under ORS chapter 62 or 65 the facility shall be exempt from ad valorem
taxation for a period of 20 consecutive years.
     (8) Portions of a facility qualifying
under ORS 468.165 (1)(c) may be certified separately under this section if
ownership of the portions is in more than one person. Certification of such
portions of a facility shall include certification of the actual cost of the
portion of the facility to the person receiving the certification. The actual
cost certified for all portions of a facility separately certified under this
subsection may not exceed the total cost of the facility that would have been
certified under one certificate. The provisions of ORS 315.304 (8) apply to any
sale, exchange or other disposition of a certified portion of a facility.
     (9) A certificate issued under this
section shall state the applicable percentage of the certified cost of the
facility, as determined under ORS 468.173.
     (10) If the construction or installation
of a facility is commenced after December 31, 2005, the facility may be
certified only if the facility or applicant is described in ORS 468.173 (3). A
facility described in ORS 468.173 (2) for which construction or installation is
commenced after December 31, 2005, may not be certified under this section. [Formerly
449.635; 1974 c.37 §3; 1975 c.496 §4; 1977 c.795 §4; 1979 c.531 §6; 1979 c.802 §4;
1981 c.408 §3; 1983 c.637 §3; 1987 c.596 §5; 1989 c.802 §6; 1991 c.877 §37;
1995 c.746 §3; 1999 c.826 §3; 2001 c.928 §2]
     468.172
“Environmental management system” defined. As used in ORS 468.173, “environmental management system” means a
continual cycle of planning, implementing, reviewing and improving the actions
undertaken at the facility to meet environmental obligations and improve
environmental performance that meet:
     (1) The standards established by the
International Organization for Standardization under ISO 14001;
     (2) The standards established in the Green
Permit program established under ORS 468.501 to 468.521; or
     (3) Other standards that meet criteria
established by the Environmental Quality Commission by rule. [2001 c.928 §6a]
     468.173
Applicable percentage of certified cost of facility eligible for tax credit. For purposes of ORS 315.304, the applicable
percentage of the certified cost of a facility shall be one of the following:
     (1) If the facility is certified under ORS
468.155 to 468.190 (1999 Edition) or if construction or installation of the
facility is commenced prior to January 1, 2001, and completed prior to January
1, 2004, 50 percent.
     (2) Except as provided in subsection (1)
or (3) of this section, if the facility is certified pursuant to application
for certification filed on or after January 1, 2002, and:
     (a) Construction or installation of the
facility is commenced on or after January 1, 2001, and on or before December
31, 2003, 25 percent; or
     (b) Construction or installation of the
facility is commenced after December 31, 2003, and on or before December 31,
2005, 15 percent.
     (3) If certified pursuant to application
for certification filed on or after January 1, 2002, 35 percent if:
     (a) The applicant is certified under
International Organization for Standardization standard ISO 14001;
     (b) A Green Permit that applies to the
facility has been issued under ORS 468.501 to 468.521;
     (c) The facility is a nonpoint source or
is regulated as a confined animal feeding operation under ORS 468B.200 to
468B.230;
     (d) The facility is used for material
recovery or recycling, as those terms are defined in ORS 459.005;
     (e) The facility is used in an
agricultural or forest products operation and is used for energy recovery, as
defined in ORS 459.005;
     (f) The certified cost of the facility
does not exceed $200,000;
     (g) Construction or installation of the
facility is entirely voluntary and no portion of it is required in order to
comply with a federal law administered by the United States Environmental
Protection Agency, a state law administered by the Department of Environmental
Quality or a law administered by a regional air pollution authority;
     (h) The facility is, at the time of
certification, located within an enterprise zone established under ORS 285C.050
to 285C.250 or within an area that has been designated a distressed area, as
defined in ORS 285A.010, by the Economic and Community Development Department;
or
     (i) The applicant demonstrates to the
Department of Environmental Quality that the applicant uses an environmental
management system at the facility. In order for the department to determine
that the applicant uses an environmental management system at the facility:
     (A) The applicant must have the
environmental management system used at the facility reviewed by an independent
third party familiar with environmental management systems and submit a report
to the department stating that the provisions of this paragraph have been met.
The report shall be accompanied by supporting materials that document
compliance with the provisions of this paragraph. The report shall include
certification from a registered or certified environmental management auditor
employed by, or under contract with, the independent third party that reviewed
the environmental management system; or
     (B) The department shall contract with an
independent third party familiar with environmental management systems to
review the environmental management system employed at the facility. The third
party shall review the environmental management system, and, if the third party
determines that the environmental management system meets the provisions of
this paragraph, a registered or certified environmental management system
auditor employed by, or contracted with, the third party shall certify that
determination to the department. The department shall recover from the
applicant the costs incurred by the department as prescribed in ORS 468.073. An
applicant shall be liable for the costs of the department under this
subparagraph without regard to whether the department certifies the facility as
a pollution control facility. The department may not certify a facility to
which this subparagraph applies until the department has received full payment
from the applicant. [2001 c.928 §6; 2001 c.932 §13]
     468.175 [1973 c.831 §2; 1975 c.496 §5; 1977 c.795 §5;
1979 c.802 §5; repealed by 1989 c.802 §8]
     468.180
Conditions for issuance of certificate under ORS 468.170. (1) No certification shall be issued by the
Environmental Quality Commission pursuant to ORS 468.170 unless the facility,
facilities or part thereof was erected, constructed or installed in accordance
with the applicable provisions of ORS 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755, ORS chapters 459, 459A, 465, 466 and 467
and ORS chapters 468, 468A and 468B and the applicable rules or standards
adopted pursuant thereto.
     (2) Nothing in this section is intended to
apply to erection, construction or installation of pollution control facilities
begun before October 5, 1973. [1973 c.831 §3; 1975 c.496 §6; 1977 c.795 §6;
1979 c.802 §6; 1989 c.802 §7]
     468.183
Revocation of certification for loss of Green Permit. (1) If a person has obtained pollution
control facility certification in which the applicable percentage is 35 percent
because of issuance of a Green Permit described under ORS 468.173 (3)(b) that
applies to the certified facility and the Green Permit is revoked, the
applicable percentage for any remaining tax credit to be claimed under ORS
315.304 shall be the applicable percentage described under ORS 468.173 (2). If
the construction or installation of the facility is commenced on or after
January 1, 2006, the pollution control facility certification shall be revoked.
     (2) The Department of Environmental
Quality shall inform the Department of Revenue of the revocation. [2001 c.928 §7]
     468.185
Procedure to revoke certification; reinstatement. (1) Pursuant to the procedures for a
contested case under ORS chapter 183, the Environmental Quality Commission may
order the revocation of the certification issued under ORS 468.170 of any
pollution control or solid waste, hazardous wastes or used oil facility, if it
finds that:
     (a) The certification was obtained by
fraud or misrepresentation; or
     (b) The holder of the certificate has
failed substantially to operate the facility for the purpose of, and to the
extent necessary for, preventing, controlling or reducing air, water or noise
pollution or solid waste, hazardous wastes or used oil as specified in such
certificate.
     (2) As soon as the order of revocation
under this section has become final, the commission shall notify the Department
of Revenue and the county assessor of the county in which the facility is
located of such order.
     (3) If the certification of a pollution
control or solid waste, hazardous wastes or used oil facility is ordered
revoked pursuant to subsection (1)(a) of this section, all prior tax relief
provided to the holder of such certificate by virtue of such certificate shall
be forfeited and the Department of Revenue or the proper county officers shall
proceed to collect those taxes not paid by the certificate holder as a result
of the tax relief provided to the holder under any provision of ORS 307.405 and
315.304.
     (4) Except as provided in subsection (5)
of this section, if the certification of a pollution control or solid waste,
hazardous wastes or used oil facility is ordered revoked pursuant to subsection
(1)(b) of this section, the certificate holder shall be denied any further
relief provided under ORS 307.405 or 315.304 in connection with such facility,
as the case may be, from and after the date that the order of revocation
becomes final.
     (5) The commission may reinstate a tax
credit certification revoked under subsection (1)(b) of this section if the commission
finds the facility has been brought into compliance. If the commission
reinstates certification under this subsection, the commission shall notify the
Department of Revenue or the county assessor of the county in which the
facility is located that the tax credit certification is reinstated for the
remaining period of the tax credit, less the period of revocation as determined
by the commission. [Formerly 449.645; 1975 c.496 §7; 1977 c.795 §7; 1979 c.802 §7;
1987 c.596 §6]
     468.187 [1981 c.710 §2; repealed by 1984 c.1 §18]
     468.190
Allocation of costs to pollution control; rules. (1) Subject to subsections (2), (3) and (4)
of this section, in establishing the portion of costs properly allocable to the
prevention, control or reduction of air, water or noise pollution or solid or
hazardous waste or to recycling or appropriately disposing of used oil for
facilities qualifying for certification under ORS 468.170, the Environmental
Quality Commission shall consider the following factors:
     (a) If applicable, the extent to which the
facility is used to recover and convert waste products into a salable or usable
commodity.
     (b) The estimated annual percent return on
the investment in the facility.
     (c) If applicable, the alternative
methods, equipment and costs for achieving the same pollution control
objective.
     (d) Any related savings or increase in
costs which occur or may occur as a result of the installation of the facility.
     (e) Any other factors which are relevant
in establishing the portion of the actual cost of the facility properly
allocable to the prevention, control or reduction of air, water or noise
pollution or solid or hazardous waste or to recycling or appropriately
disposing of used oil.
     (2) The portion of actual costs properly
allocable shall be from zero to 100 percent in increments of one percent. If
zero percent, the commission shall issue an order denying certification.
     (3) If the cost of the facility (or
facilities certified under one certificate) does not exceed $50,000, the
portion of the actual costs properly allocable shall be in the proportion that
the ratio of the time the facility is used for prevention, control or reduction
of air, water or noise pollution or solid or hazardous waste or to recycling or
appropriately disposing of used oil bears to the entire time the facility is
used for any purpose.
     (4) In the case of a business described in
ORS 315.304 (4)(a)(C)(i), the Environmental Quality Commission shall consider
the factors listed in subsection (1) of this section as if the person operating
the facility or conducting the trade or business that utilizes property
requiring such a facility were the applicant for the credit, regardless of
whether the person is the lessee or lessor of the facility.
     (5) The commission may adopt rules
establishing methods to be used to determine the portion of costs properly
allocable to the prevention, control or reduction of air, water or noise
pollution or solid or hazardous waste or to recycling or appropriately
disposing of used oil. [Formerly 449.655; 1974 c.37 §4; 1977 c.795 §8; 1983
c.637 §4; 1995 c.746 §4; 1999 c.1101 §2]
STATE
POLLUTION CONTROL BONDS
     468.195
Issuance of bonds authorized; principal amount. In order to provide funds for the purposes
specified in Article XI-H of the Oregon Constitution, the Department of
Environmental Quality may request the State Treasurer to issue bonds in
accordance with the provisions of ORS chapter 286A. The principal amount of the
bonds outstanding at any one time, issued under authority of this section,
shall not exceed $260 million par value. [Formerly 449.672; 1981 c.312 §1; 1981
c.660 §42; 2007 c.783 §204]
     468.200 [Formerly 449.675; repealed by 1981 c.660 §18]
     468.205 [Formerly 449.677; repealed by 1981 c.660 §18]
     468.210 [Formerly 449.680; 1975 c.462 §14; repealed
by 1981 c.660 §18]
     468.215
Pollution Control Fund. The
money realized from the sale of each issue of bonds under ORS 468.195 shall be
credited to a special fund in the State Treasury, separate and distinct from
the General Fund, to be designated the Pollution Control Fund. Moneys in the
Pollution Control Fund are continuously appropriated to the Department of
Environmental Quality for the purpose of carrying out the provisions of ORS
468.195 to 468.260. Moneys in the fund may not be used for any other purpose,
except that these moneys, with the approval of the State Treasurer, may be
invested as provided by ORS 293.701 to 293.820, and the earnings from such
investments shall be credited to the Pollution Control Sinking Fund maintained
under ORS 468.230. [Formerly 449.682; 2005 c.755 §43]
     468.220
Department to administer fund; uses; legislative approval of grants; administrative
assessment. (1) The
Department of Environmental Quality shall be the agency for the State of
     (a) To grant funds not to exceed 30
percent of total project costs for eligible projects as defined in ORS 454.505
or sewerage systems as defined in ORS 468B.005.
     (b) To acquire, by purchase, or otherwise,
general obligation bonds or other obligations of any municipal corporation,
city, county, or agency of the State of
     (c) To acquire, by purchase, or otherwise,
other obligations of any city that are authorized by its charter in an amount
not to exceed 100 percent of the total project costs for eligible projects.
     (d) To grant funds not to exceed 30
percent of the total project costs for facilities for the disposal of solid
waste, including without being limited to, transfer and resource recovery
facilities.
     (e) To make loans or grants to any
municipal corporation, city, county, or agency of the State of Oregon, or
combinations thereof, for planning of eligible projects as defined in ORS
454.505, sewerage systems as defined by ORS 468B.005 or facilities for the
disposal of solid waste, including without being limited to, transfer and
resource recovery facilities. Grants made under this paragraph shall be
considered a part of any grant authorized by paragraph (a) or (d) of this
subsection if the project is approved.
     (f) To acquire, by purchase, or otherwise,
general obligation bonds or other obligations of any municipal corporation,
city, county, or agency of the State of
     (g) To advance funds by contract, loan or
otherwise, to any municipal corporation, city, county or agency of the State of
     (h) To pay compensation required by law to
be paid by the state for the acquisition of real property for the disposal by
storage of environmentally hazardous wastes.
     (i) To dispose of environmentally
hazardous wastes by the Department of Environmental Quality whenever the
department finds that an emergency exists requiring such disposal.
     (j) To acquire for the state real property
and facilities for the disposal by landfill, storage or otherwise of solid
waste, including but not limited to, transfer and resource recovery facilities.
     (k) To acquire for the state real property
and facilities for the disposal by incineration or otherwise of hazardous waste
or PCB.
     (L) To provide funding for the Assessment
Deferral Loan Program Revolving Fund established in ORS 454.436.
     (m) To provide funding for the Orphan Site
Account established in ORS 465.381 but only to the extent that the department
reasonably estimates that debt service from bonds issued to finance such
facilities or activities shall be fully paid from fees collected pursuant to
ORS 453.402 (2)(c), under ORS 459.236 and under ORS 465.101 to 465.131 for the
purpose of providing funds for the Orphan Site Account and other available
funds, but not from repayments of financial assistance under ORS 465.265 to
465.310 or from moneys recovered from responsible parties.
     (n) To advance funds by contract, loan or
otherwise, to any municipal corporation, city, county or agency of this state,
or combination thereof, for facilities or activities related to removal or
remedial action of hazardous substances.
     (o) To provide funding for the Water
Pollution Control Revolving Fund established under ORS 468.427, either as a
grant or an advance. If the funding provided is an advance, the department
shall establish the program described in ORS 468.433 (2) to pay the bonds that
funded the advance.
     (p) To fund loans to or buy debt
obligations of a public agency, as defined in ORS 468.423, that finance the
costs of treatment works, as defined in ORS 468.423, which are funded in part
through the Water Pollution Control Revolving Fund.
     (q) To provide funding for remedial actions
related to contaminated sediment found in the submerged and submersible lands,
as those terms are defined in ORS 274.005, within the Willamette River between
Swan Island and the confluence of the Willamette and Columbia Rivers and
associated remedial actions. The funding provided under this paragraph may be
used for remedial action costs, as defined in ORS 465.200.
     (2) The facilities referred to in
subsection (1)(a) to (c) of this section shall be only such as conservatively
appear to the department to be not less than 70 percent self-supporting and
self-liquidating from revenues, gifts, grants from the federal government, user
charges, assessments and other fees.
     (3) The facilities referred to subsection
(1)(d), (f) and (g) of this section shall be only such as conservatively appear
to the department to be not less than 70 percent self-supporting and
self-liquidating from revenues, gifts, grants from the federal government, user
charges, assessments and other fees.
     (4) The real property and facilities that
receive funding under subsection (1)(j), (k), (o) and (p) of this section shall
be only such as conservatively appear to the department to be not less than 70
percent self-supporting and self-liquidating from revenues, gifts, grants from
the federal government, user charges, assessments and other fees.
     (5) The department may sell or pledge any
bonds, notes or other obligations acquired under subsection (1)(b) of this
section.
     (6) Before making a loan or grant to or
acquiring general obligation bonds or other obligations of a municipal
corporation, city, county or agency for facilities for the disposal of solid
waste or planning for such facilities, the department shall require the
applicant to demonstrate that it has adopted a solid waste management plan that
has been approved by the department. The plan must include a waste reduction
program.
     (7) Any grant authorized by this section
shall be made only with the prior review of the Joint Committee on Ways and
Means during the legislative sessions or the Emergency Board during the interim
period between sessions.
     (8) The department may assess those
entities to whom grants and loans are made under this section to recover
expenses incurred in administering this section. [Formerly 449.685; 1977 c.95 §8;
1977 c.704 §9; 1979 c.773 §9; 1981 c.312 §2; 1985 c.670 §42; 1987 c.695 §10;
1989 c.833 §§114,170; 1991 c.863 §37; 1993 c.18 §121; 1993 c.411 §§3,4; 1995
c.79 §276; 2003 c.696 §2]
     468.225
Investment of gross proceeds of agency bonds or other obligations. All amounts that are treated as gross
proceeds of agency bonds or other obligations, if invested, shall be invested
in compliance with section 148 of the Internal Revenue Code of 1986, and the
amendments thereto in effect on October 23, 1999. [Formerly 449.687; 1999 c.59 §137]
     468.230
Pollution Control Sinking Fund; use; limitation. (1) The Environmental Quality Commission
shall maintain, with the State Treasurer, a Pollution Control Sinking Fund,
separate and distinct from the General Fund. The Pollution Control Sinking Fund
shall provide for the payment of the principal and interest upon bonds issued
under authority of Article XI-H of the Constitution of Oregon and ORS 468.195
to 468.260 and administrative expenses incurred in issuing the bonds. Moneys in
the sinking fund are continuously appropriated to the commission for such
purpose. With the approval of the commission, the moneys in the Pollution
Control Sinking Fund may be invested as provided by ORS 293.701 to 293.820, and
earnings from such investment shall be credited to the Pollution Control
Sinking Fund.
     (2) The Pollution Control Sinking Fund
shall consist of all moneys received from ad valorem taxes levied pursuant to
ORS 291.445 and assessments collected under ORS 468.220 (8), moneys transferred
from the Orphan Site Account under ORS 465.381 (6), moneys transferred from the
Water Pollution Control Revolving Fund under ORS 468.429 (3), all moneys that
the Legislative Assembly may provide in lieu of such taxes, all earnings on the
Pollution Control Fund, Pollution Control Sinking Fund, and all other revenues
derived from contracts, bonds, notes or other obligations, acquired, by the
commission by purchase, loan or otherwise, as provided by Article XI-H of the
Constitution of Oregon and by ORS 468.195 to 468.260.
     (3) The Pollution Control Sinking Fund
shall not be used for any purpose other than that for which the fund was
created. Should a balance remain therein after the purposes for which the fund
was created have been fulfilled or after a reserve sufficient to meet all
existing obligations and liabilities of the fund has been set aside, the
surplus remaining may be transferred to the Pollution Control Fund at the
direction of the commission. [Formerly 449.690; 1981 c.312 §3; 1989 c.833 §115;
1991 c.220 §13; 1993 c.411 §5; 2005 c.755 §44]
     468.235 [Formerly 449.692; repealed by 1991 c.220 §15]
     468.240
Remedy where default occurs on payment to state. If any municipal corporation, city or county
defaults on payments due to the state under ORS 468.195 to 468.260, the state
may withhold any amounts otherwise due to the corporation, city or county to
apply to the indebtedness. [Formerly 449.694]
     468.245
Acceptance of federal funds.
The Environmental Quality Commission may accept assistance, grants and gifts,
in the form of money, land, services or any other thing of value from the
United States or any of its agencies, or from other persons subject to the
terms and conditions thereof, regardless of any laws of this state in conflict
with regulations of the federal government or restrictions and conditions of
such other persons with respect thereto, for any of the purposes contemplated
by Article XI-H of the Constitution of Oregon and by ORS 468.195 to 468.260.
Unless enjoined by the terms and conditions of any such gift or grant, the
commission may convert the same or any of them into money through sale or other
disposal thereof. [Formerly 449.695]
     468.250
Participation in matching fund programs with federal government. (1) The Environmental Quality Commission may
participate on behalf of the State of
     (2) Subject to conditions imposed on
federally granted funds, a municipal corporation, city, county or agency of the
State of Oregon, or combination thereof, who is eligible for federal funds for
a project during its construction or becomes eligible for reimbursement for
funds expended, if the project has been constructed and placed into operation,
shall apply for and pay to the commission such funds so received, or otherwise
made available to it, in such amounts as determined by the commission as just
and necessary, from an agency of the federal government. These funds shall
first be used to reimburse the State of Oregon for the portion of any grant
that was advanced to the municipal corporation, city, county or agency of the
State of Oregon, or combination thereof, for construction of the project that
exceeded the federal requirements for state matching funds and any remainder
thereof shall be used to apply upon the retirement of any principal and
interest indebtedness due and owing to the State of Oregon arising out of funds
loaned for the project prior to federal funds becoming available.
     (3) The refusal of a municipal
corporation, city, county or agency of the State of Oregon, or combinations
thereof, to apply for federal funds in such amounts as determined by the
commission as just and necessary for which it would otherwise be eligible,
shall be sufficient grounds to terminate any further participation in construction
of a facility by the commission.
     (4) The municipal corporation, city,
county or agency of the State of
     468.253
Authority of director to act to benefit fund. (1) Notwithstanding any other provision of law, if the Director of the
Department of Environmental Quality finds that it will benefit the financial
condition of the Pollution Control Sinking Fund, with the approval of the State
Treasurer the director may:
     (a) Sell bonds, notes, contracts or other
obligations acquired by the Environmental Quality Commission by purchase, loan
or otherwise from the proceeds of bonds issued under ORS 468.195 to 468.260,
and pay costs associated with the sale from the proceeds of the sale.
     (b) Pay to an obligor under such bonds,
notes, contracts or other obligations such sums from the proceeds of a sale
authorized by paragraph (a) of this subsection as the director determines, or
hold or deposit such sums in trust for the benefit of such obligor under terms
established by the director.
     (2) Any proceeds of a sale authorized by
subsection (1) of this section which remain after payments authorized by
subsection (1) of this section shall be deposited in the Pollution Control
Sinking Fund.
     (3) An obligor under any bonds, notes,
contracts or other obligations which are proposed to be sold by the director
pursuant to subsection (1) of this section may waive its right to redeem such
obligations prior to maturity, or otherwise renegotiate the terms of such
obligations, if the obligor determines that so altering the terms of its
obligation, together with payments to be received by the obligor under
subsection (1)(b) of this section, will benefit the obligor. [1989 c.731 §4]
     468.255
Limit on grants and loans.
Any funds advanced by the Environmental Quality Commission by grant shall not
exceed 30 percent of the total project costs for eligible projects or for
facilities related to disposal of solid wastes, and any obligation acquired by
the commission by purchase, contract, loan, or otherwise, shall not exceed 100
percent of the total project costs for eligible projects or for facilities
related to disposal of solid wastes. Combinations of funds granted and loaned
by whatever means shall not total more than 100 percent of the eligible project
costs. [Formerly 449.699; 1981 c.312 §4]
     468.260
Return of unexpended funds to state required; use of returned funds. Any proceeds unexpended after a project is
constructed and inspected, and after records relating thereto are audited by
the Environmental Quality Commission, shall be returned to the commission on
behalf of the State of Oregon to apply upon the retirement of principal and
interest indebtedness on obligations acquired by it from a municipal
corporation, city, county or agency of the State of Oregon, or any combinations
thereof. [Formerly 449.701]
     468.263
Definitions for ORS 468.263 to 468.272. As used in ORS 468.263 to 468.272, unless the context requires
otherwise:
     (1) “Bonds” means revenue bonds or other
types of obligations authorized by ORS 468.263 to 468.272.
     (2) “Pollution control facilities” or “facilities”
means any land, building or other improvement, appurtenance, fixture, item of
machinery or equipment, and all other real and personal property, whether or
not in existence or under construction at the time the bonds are issued, which
are to be used in furtherance of the purpose of abating, controlling or
preventing, altering, disposing or storing of solid waste, thermal, noise,
atmospheric or water pollutants, contaminants, or products therefrom.
     (3) “Governing body” means the county
court or board of county commissioners. [1974 c.34 §2]
     Note: 468.263 to 468.272 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
468 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.264
Policy. The Legislative
Assembly finds:
     (1) That control of environmental damage
and general health and welfare of the citizens of the State of
     (2) That the methods of financing provided
in ORS 468.263 to 468.272 will encourage such installation. [1974 c.34 §1]
     Note: See note under 468.263.
     468.265
Powers of county over pollution control facilities; limitations. (1) In addition to any other powers which it
may now have, each county shall have the following powers, together with all
powers incidental thereto or necessary for the performance of the following:
     (a) To acquire, whether by purchase,
exchange, devise, gift or otherwise, establish, construct, improve, maintain,
equip and furnish one or more pollution control facilities or any interest
therein to be located, in whole or in part, within such municipality or in
another municipality, if the other municipality gives written consent.
     (b) To enter into a lease, sublease,
lease-purchase, installment sale, sale, or agreement for any facility upon such
terms and conditions as the governing body may deem advisable, provided the
same shall at least fully cover all debt service requirements with respect to
the facility and shall not conflict with the provisions of ORS 468.263 to
468.272.
     (c) To sell, exchange, donate and convey
to others any or all facilities upon such terms as the governing body may deem
advisable, including the power to receive for any such sale the note or notes
of the purchaser of the facilities or property whenever the governing body
finds any such action to be in furtherance of the purposes of ORS 468.263 to
468.272.
     (d) To issue revenue bonds for the purpose
of carrying out any of its powers under ORS 468.263 to 468.272.
     (e) Whenever the governing body finds such
loans to be in the furtherance of the purposes of ORS 468.263 to 468.272 and
subject always to the limitations contained in ORS 468.266, to make secured or
unsecured loans for the purpose of financing or refinancing the acquisition,
construction, improvement or equipping of a facility and to charge and collect
interest on such loans and pledge the proceeds thereof as security for the
payment of the principal and interest of any bonds issued hereunder and any
agreements made in connection therewith. A facility, in whole or in part, must
be located in the municipality or in another municipality if the other
municipality gives written consent.
     (f) To mortgage and pledge any or all
facilities or any part or parts thereof, whether then owned or thereafter
acquired, and to pledge the revenues, proceeds and receipts or any portion
thereof from a facility as security for the payment of the principal of and
interest on any bonds so issued.
     (g) To refund outstanding obligations
incurred by an enterprise to finance the cost of a facility when the governing
body finds that such refinancing is in the public interest.
     (h) To pay compensation for professional
services and other services as the governing body shall deem necessary to carry
out the purposes of ORS 468.263 to 468.272.
     (i) To acquire and hold obligations of any
kind to carry out the purposes of ORS 468.263 to 468.272.
     (j) To invest and reinvest funds under its
control as the governing body shall direct.
     (k) To enter into contracts and execute
any agreements or instruments and to do any and all things necessary or appropriate
to carry out the purposes of ORS 468.263 to 468.272.
     (L) To acquire, own, sell, assign or
otherwise hold legal or equitable title to or an interest in pollution control
facilities or hold federal tax ownership of pollution control facilities.
     (2) The county shall not have the power to
operate any facility as a business other than as owner pursuant to subsection
(1)(L) of this section or as lessor or seller, nor shall it permit any funds
derived from the sale of bonds to be used by any lessee or purchaser of a
facility as working capital.
     (3) Counties may jointly exercise any
power or authority granted under ORS 468.263 to 468.272, including, without
limitation, the power to borrow money or issue bonds or notes.
     (4) For the purpose of exercising the
power and authority granted under ORS 468.263 to 468.272, a county is not
subject to the requirements of ORS 279.835 to 279.855 or ORS chapter 279A, 279B
or 279C. [1974 c.34 §3; 2001 c.680 §7; 2003 c.794 §292]
     Note: See note under 468.263.
     468.266
Issuance of bonds. (1) All
principal of and interest on bonds issued pursuant to ORS 468.263 to 468.272
shall be payable solely out of the revenues, proceeds and receipts from the
lease or sale of the property, loan repayments, or out of the proceeds of revenue
bonds issued pursuant to ORS 468.263 to 468.272 as shall be specified in the
proceedings of the governing body by which the issuance of bonds shall have
been authorized. The principal and interest shall not constitute nor give rise
to a pecuniary liability of the municipality or a charge against its general
credit or taxing powers, and such limitation shall be plainly stated upon the
face of each bond.
     (2) The bonds:
     (a) May be executed and delivered at any
time and from time to time;
     (b) May be in such form, denomination,
tenor and maturity;
     (c) May be in registered or bearer form
either as to principal or interest or both, and may provide for conversion
between registered and coupon bonds of varying denominations;
     (d) May be payable in such installments
and at such time or times not exceeding 40 years from the date thereof;
     (e) May be payable at such place or places
within or without this state;
     (f) May bear interest at such rate or
rates payable at such time or times and at such place or places;
     (g) May be redeemable prior to maturity
with or without premium;
     (h) May be executed by such officers and
in such manner;
     (i) May contain such provisions not
inconsistent with ORS 468.263 to 468.272;
as shall be
specified in the proceedings of the governing body by which issuance of the
bonds shall have been authorized.
     (3) Bonds may be sold at public or private
sale in such manner and from time to time as may be determined by the governing
body to be most advantageous.
     (4) Issuance by the county of one or more
series of bonds for one or more purposes shall not preclude it from issuing
other bonds in connection with the same purpose or any other purpose, but the
proceedings whereunder any subsequent bonds may be issued shall recognize and
protect any prior pledge or mortgage made for any prior issue of bonds.
     (5) Any bonds of the county at any time
outstanding may be refunded if permitted by the conditions of issuance, at any
time and from time to time by the issuance of its refunding bonds in such amount
as the governing body may deem necessary but not exceeding an amount sufficient
to refund the principal of the bonds so to be refunded, together with any
unpaid interest thereon and any premiums and commissions necessary to be paid
in connection therewith. Any such refunding may be effected whether the bonds
to be refunded shall have then matured or shall thereafter mature, either by
sale of the refunding bonds and the application of the proceeds thereof for the
payment of the bonds to be refunded thereby, or by the exchange of the
refunding bonds for the bonds to be refunded thereby with the consent of the
holders of the bonds so to be refunded, and regardless of whether or not the
bonds to be refunded were issued in connection with the same facilities or
separate facilities, and regardless of whether or not the bonds proposed to be
refunded shall be payable at the same date or different dates or shall be due
serially or otherwise.
     (6) All bonds issued under ORS 468.263 to
468.272 and interest coupons attached thereto shall be construed to be
negotiable instruments. [1974 c.34 §4]
     Note: See note under 468.263.
     468.267
Security for bonds. The
principal of and interest on any bonds shall be secured by a pledge of the
revenues, proceeds and receipts or any portion thereof out of which the
principal and interest are made payable, and may be secured by a mortgage
covering all or any part of the facilities from which the revenues, proceeds or
receipts so pledged may be derived, including any enlargements thereof and
additions thereto, by a pledge or assignment of the lease to such facility or
by such other security as may be deemed to be prescribed in the proceedings of
the governing body and authorizing the issuance of bonds. The proceedings under
which the bonds are authorized to be issued and any mortgage securing such
bonds may contain any agreements and provisions respecting the maintenance of
the facilities and properties covered thereby, the fixing and collection of
rents for any portions thereof leased by the municipality to others, the fixing
and collection of proceeds from the sale of any facilities and properties by
the municipality to others, the creation and maintenance of special funds from
such revenues and the rights and remedies available in the event of default,
and such other provisions not inconsistent with ORS 468.263 to 468.272, all as
the governing body shall deem advisable and not in conflict with the provisions
of ORS 468.263 to 468.272. Each pledge, lease, sublease, agreement and mortgage
made for the benefit or security of any of the bonds shall continue effective
until the principal of and interest on the bonds for the benefit of which the
same were made have been fully paid. [1974 c.34 §5]
     Note: See note under 468.263.
     468.268
Enforcement of bond obligation.
(1) The proceedings authorizing any bonds and any mortgage securing such bonds
may provide that, in the event of a default in the payment of the principal of
or the interest on such bonds or in the performance of any agreement contained
in such proceedings or mortgage, such payment and performance may be enforced
by suit, mandamus or by the appointment of a receiver with power to charge and
collect rents and to apply the revenues from the facilities in accordance with
such proceedings or the provisions of such mortgage by foreclosure of any
mortgage or by any one or more remedies specified in the proceedings.
     (2) Such proceedings or mortgage may also
provide that any trustee under such mortgage or the holder of any of the bonds
secured thereby may become the purchaser at any foreclosure sale if the highest
bidder therefor. [1974 c.34 §6]
     Note: See note under 468.263.
     468.269
Trustees; powers. The
proceedings authorizing the issuance of bonds may provide for the appointment
of one or more trustees for the protection of the holders of the bonds, whether
or not a mortgage is entered into as security for such bonds. A bank with trust
powers or a trust company within or without the State of Oregon may be
appointed as trustee and shall be located in the United States, and shall have
the immunities, powers and duties provided in said proceedings, and may, to the
extent permitted by such proceedings, hold and invest funds deposited with it
in direct obligations of the United States, obligations guaranteed by the
United States or certificates of deposit of a bank, including the trustee,
which are continuously secured by such obligations of or guaranteed by the
United States. Any bank acting as such trustee may, to the extent permitted by
such proceedings, buy bonds issued under ORS 468.263 to 468.272 to the same
extent as if it were not such trustee. The proceedings authorizing the bonds
may provide that some or all of the proceeds of the sale of the bonds, the
revenues of any facilities, the proceeds of the sale of any part of a facility,
or of any insurance policy or of any condemnation award shall be deposited with
the trustee and applied as provided in the proceedings. [1974 c.34 §7]
     Note: See note under 468.263.
     468.270
Tax status of leasehold interest in facilities. Nothing in ORS 468.263 to 468.272 is
intended to exempt from taxation or assessment the leasehold interest of any
lessee in any facility nor are ORS 468.263 to 468.272 intended to affect any
exemption or credit from taxation which might otherwise be available to any
lessee under the laws of the State of
     Note: See note under 468.263.
     468.271
Effect on procedure of awarding contracts; construction. (1) The construction, reconstruction or
improvement of any facilities shall be completed in the manner determined by
the governing body and shall be free from any requirement of competitive
bidding or any other restriction imposed on the procedure for award of
contracts with public bodies.
     (2) Nothing in ORS 468.263 to 468.272 is
intended as a restriction or limitation upon any other powers which a county
might otherwise have under the laws of this state, but shall be construed as
cumulative.
     (3) If any provision of ORS 468.263 to
468.272 or the application thereof to any person or circumstance is held to be
invalid, such invalidity shall not affect other provisions of ORS 468.263 to
468.272 which can be given effect without the invalid provision or application,
and to this end the provisions of ORS 468.263 to 468.272 are declared to be
severable. [1974 c.34 §9]
     Note: See note under 468.263.
     468.272
Application of other laws relating to bonds. Any restrictions, limitations, conditions or procedures provided by
other statutes relating to the issuance and sale of bonds or other obligations
do not apply to the issuance and sale of bonds authorized by ORS 468.263 to
468.272. [1974 c.34 §10; 2005 c.443 §26]
     Note: See note under 468.263.
     468.275 [Formerly 449.760; 1983 c.333 §1; renumbered
468A.005 in 1991]
     468.280 [Formerly 449.765; renumbered 468A.010 in
1991]
     468.285 [Formerly 449.770; renumbered 468A.015 in
1991]
     468.290 [Formerly 449.775; 1975 c.559 §3; 1983 c.333
§2; 1983 c.730 §3; 1991 c.752 §16; renumbered 468A.020 in 1991]
     468.295 [Formerly 449.785; renumbered 468A.025 in
1991]
     468.300 [Formerly 449.825; renumbered 468A.030 in
1991]
     468.305 [Formerly 449.782; renumbered 468A.035 in
1991]
     468.310 [Formerly 449.727; 1991 c.752 §17;
renumbered 468A.040 in 1991]
     468.315 [Formerly 449.731; 1991 c.752 §18;
renumbered 468A.045 in 1991]
     468.320 [Formerly 449.707; renumbered 468A.050 in
1991]
     468.325 [Formerly 449.712; 1985 c.275 §1; renumbered
468A.055 in 1991]
     468.330 [Formerly 449.739; renumbered 468A.060 in
1991]
     468.335 [Formerly 449.722; renumbered 468A.065 in
1991]
     468.340 [Formerly 449.702; 1991 c.67 §129;
renumbered 468A.070 in 1991]
     468.345 [Formerly 449.810; renumbered 468A.075 in
1991]
     468.350 [1975 c.552 §34; renumbered 468A.080 in
1991]
     468.355 [1981 c.765 §2; renumbered 468A.085 in 1991]
     468.357 [1989 c.1070 §9; renumbered 468A.775 in
1991]
     468.358 [1989 c.1070 §12; renumbered 468A.780 in
1991]
     468.359 [1989 c.1070 §11; renumbered 468A.785 in
1991]
     468.360 [Formerly 449.949; 1975 c.670 §4; 1983 c.338
§932; renumbered 468A.350 in 1991]
     468.365 [Formerly 449.951; renumbered 468A.355 in
1991]
     468.370 [Formerly 449.957; 1974 c.73 §1; renumbered
468A.360 in 1991]
     468.375 [Formerly 449.953; 1974 c.73 §2; 1975 c.535 §2;
1977 c.298 §3; 1983 c.196 §1; 1985 c.16 §466; 1989 c.171 §62; renumbered
468A.365 in 1991]
     468.377 [1977 c.298 §2; 1985 c.222 §3; renumbered
468A.370 in 1991]
     468.380 [Formerly 449.963; renumbered 468A.375 in
1991]
     468.385 [Formerly 483.815; repealed by 1983 c.338 §978]
     468.390 [1973 c.835 §72; 1974 c.73 §4; 1983 c.338 §933;
renumbered 468A.380 in 1991]
     468.395 [Formerly 449.955; 1983 c.338 §934; renumbered
468A.385 in 1991]
     468.397 [1985 c.222 §2; renumbered 468A.390 in 1991]
     468.400 [Formerly 449.959; 1983 c.338 §935; 1991
c.331 §68; renumbered 468A.395 in 1991]
     468.405 [Formerly 449.965; 1974 c.73 §5; 1975 c.535 §3;
1977 c.704 §10; 1981 c.294 §1; 1983 c.338 §936; renumbered 468A.400 in 1991]
     468.410 [Formerly 449.747; renumbered 468A.405 in
1991]
     468.415 [Formerly 449.751; renumbered 468A.410 in
1991]
     468.420 [Formerly 449.753; renumbered 468A.455 in
1991]
FINANCING
TREATMENT WORKS
     468.423
Definitions for ORS 468.423 to 468.440. As used in ORS 468.423 to 468.440:
     (1) “Fund” means the Water Pollution
Control Revolving Fund established under ORS 468.427.
     (2) “Public agency” means:
     (a) A state agency, incorporated city,
county, sanitary authority, federally recognized Indian tribal government,
county service district, sanitary district, metropolitan service district or
other special district authorized or required to construct water pollution
control facilities; or
     (b) An intergovernmental entity created by
units of local government under ORS 190.003 to 190.130.
     (3) “Treatment works” means:
     (a) The devices and systems used in the
storage, treatment, recycling and reclamation of municipal sewage or industrial
wastes of a liquid nature, necessary to recycle or reuse water at the most
economical cost over the estimated life of the works. “Treatment works”
includes:
     (A) Intercepting sewers, outfall sewers,
sewage collection systems, pumping power and other equipment, and any
appurtenance, extension, improvement, remodeling, addition or alteration to the
equipment;
     (B) Elements essential to provide a
reliable recycled water supply including standby treatment units and clear well
facilities; and
     (C) Any other acquisitions that will be an
integral part of the treatment process or used for ultimate disposal of
residues resulting from such treatment, including but not limited to land used
to store treated waste water in land treatment systems prior to land
application.
     (b) Any other method or system for
preventing, abating, reducing, storing, treating, separating or disposing of
municipal waste, storm water runoff, industrial waste or waste in combined
storm water and sanitary sewer systems.
     (c) Any other facility that the
Environmental Quality Commission determines a public agency must construct or
replace in order to abate or prevent surface or ground water pollution. [1987
c.648 §1; 1995 c.79 §278; 1995 c.98 §1; 2007 c.783 §232a]
     468.425
Policy. It is declared to be
the policy of this state:
     (1) To aid and encourage public agencies
required to provide treatment works for the control of water pollution in the
transition from reliance on federal grants to local self-sufficiency by the use
of fees paid by users of the treatment works;
     (2) To accept and use any federal grant
funds available to capitalize a perpetual revolving loan fund; and
     (3) To assist public agencies in meeting
treatment worksÂ’ construction obligations in order to prevent or eliminate
pollution of surface and ground water by making loans from a revolving loan
fund at interest rates that are less than or equal to market interest rates. [1987
c.648 §2]
     468.427
Water Pollution Control Revolving Fund; sources. (1) The Water Pollution Control Revolving
Fund is established separate and distinct from the General Fund in the State
Treasury. The moneys in the Water Pollution Control Revolving Fund are
appropriated continuously to the Department of Environmental Quality to be used
for the purposes described in ORS 468.429.
     (2) The Water Pollution Control Revolving
Fund shall consist of:
     (a) All capitalization grants provided by
the federal government under the federal Water Quality Act of 1987 (Public Law
100-4);
     (b) All state matching funds appropriated
or authorized by the legislature;
     (c) Any other revenues derived from gifts,
grants or bequests pledged to the state for the purpose of providing financial
assistance for water pollution control projects;
     (d) All repayments of moneys borrowed from
the fund;
     (e) All interest payments made by
borrowers from the fund; and
     (f) Amounts granted or advanced to the
Water Pollution Control Revolving Fund from the Pollution Control Fund under
ORS 468.220 (1).
     (3) The State Treasurer may invest and
reinvest moneys in the Water Pollution Control Revolving Fund in the manner
provided by law. All earnings from such investment and reinvestment shall be
credited to the Water Pollution Control Revolving Fund. [1987 c.648 §3; 1993
c.411 §6]
     468.428
Lottery bonds. (1) Pursuant
to ORS 286A.560 to 286A.585, lottery bonds may be issued to provide loans and
other financial assistance to public agencies, as defined in ORS 468.423, for
waste water pollution control, reduction or abatement as described in ORS
468.429.
     (2) The use of lottery bond proceeds is
authorized upon the following findings:
     (a) Financial assistance for public agency
waste water pollution control, reduction or abatement activities will result in
additional wastewater treatment capacity in
     (b) Wastewater treatment capacity comprises
a portion of the physical foundation for industrial and commercial activities
and provides a portion of the basic framework for continued and expanded
economic opportunities throughout
     (c) Such financial assistance will
therefore further economic development within this state, making the use of net
proceeds derived from the operation of the Oregon State Lottery to pay debt
service on lottery bonds issued under this section to provide financial
assistance to public agencies for wastewater pollution control, reduction or
abatement activities an authorized use of state lottery funds under section 4,
Article XV of the Oregon Constitution, and ORS 461.510.
     (3) The aggregate principal amount of
lottery bonds issued pursuant to this section to provide financial assistance
for public agency waste water pollution control, reduction or abatement
activities shall not exceed $8 million and an additional amount estimated by
the State Treasurer to be necessary to pay bond-related costs. Lottery bonds authorized
by this section shall be issued only at the request of the Director of the
Department of Environmental Quality.
     (4) The net proceeds of lottery bonds
issued pursuant to this section shall be deposited in the Water Pollution
Control Revolving Fund established by ORS 468.427.
     (5) The proceeds of lottery bonds issued
pursuant to this section shall be used only for the purposes set forth in
subsection (1) of this section and for bond-related costs. [2001 c.942 §3]
     Note: 468.428 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 468 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.429
Uses of revolving fund. (1)
The Department of Environmental Quality shall use the moneys in the Water
Pollution Control Revolving Fund to provide financial assistance:
     (a) To public agencies for the
construction or replacement of treatment works.
     (b) For the implementation of a management
program established under section 319 of the federal Water Quality Act of 1986
relating to the management of nonpoint sources of pollution.
     (c) For development and implementation of
a conservation and management plan under section 320 of the federal Water
Quality Act of 1986 relating to the national estuary program.
     (2) The department may also use the moneys
in the Water Pollution Control Revolving Fund for the following purposes:
     (a) To buy or refinance the treatment
worksÂ’ debt obligations of public agencies if such debt was incurred after
March 7, 1985.
     (b) To guarantee, or purchase insurance
for, public agency obligations for treatment worksÂ’ construction or replacement
if the guarantee or insurance would improve credit market access or reduce
interest rates, or to provide loans to a public agency for this purpose.
     (c) To pay the expenses of the department
in administering the Water Pollution Control Revolving Fund, to make transfers
to the Water Pollution Control Administration Fund, or to pay other
departmental costs including expenses of the program described in ORS 468.433
(2).
     (3) If amounts are advanced to the Water
Pollution Control Revolving Fund from the Pollution Control Fund under ORS
468.220 (1), the department shall transfer from the Water Pollution Control
Revolving Fund to the Pollution Control Sinking Fund amounts sufficient to pay
the bonds that funded the advance. [1987 c.648 §4; 1993 c.411 §7; 1995 c.79 §279]
     468.430 [1983 c.218 §1; repealed by 1985 c.222 §6]
     468.431
Water Pollution Control Administration Fund; sources; uses. (1) The Water Pollution Control
Administration Fund is established separate and distinct from the General Fund
in the State Treasury. Moneys in the Water Pollution Control Administration
Fund are appropriated continuously to the Department of Environmental Quality
to be used for the payment of costs of administering the Water Pollution
Control Revolving Fund, including all costs of staffing for the program
described in ORS 468.433 (2) and all costs of making loans from the Water
Pollution Control Revolving Fund and collecting loan payments.
     (2) The Water Pollution Control
Administration Fund shall consist of:
     (a) Any administrative fee levied by the
department in conjunction with administration of the Water Pollution Control Revolving
Fund.
     (b) Any transfers to the Water Pollution
Control Administration Fund from the Water Pollution Control Revolving Fund.
     (c) Any loans made from the Water
Pollution Control Revolving Fund.
     (d) Any other revenues derived from gifts,
grants or bequests pledged to the state for the purpose of administering the
Water Pollution Control Revolving Fund.
     (3) The State Treasurer may invest and
reinvest moneys in the Water Pollution Control Administration Fund in the
manner provided by law. All earnings from such investment and reinvestment
shall be credited to the Water Pollution Control Administration Fund. [1993
c.411 §2; 1995 c.79 §280]
     468.433
Duties of department; public agency loan program. (1) In administering the Water Pollution
Control Revolving Fund, the Department of Environmental Quality shall:
     (a) Allocate funds for loans in accordance
with procedures adopted by rule by the Environmental Quality Commission.
     (b) Use accounting, audit and fiscal
procedures that conform to generally accepted government accounting standards.
     (c) Prepare any reports required by the
federal government as a condition to awarding federal capitalization grants.
     (d) Seek to maximize the ability of the
Water Pollution Control Revolving Fund to operate on a self-sustaining basis
and maintain a perpetual source of treatment works financing.
     (2) If amounts are advanced to the Water
Pollution Control Revolving Fund from the Pollution Control Fund under ORS
468.220 (1), the department shall develop and administer a program designed to
loan amounts in the Water Pollution Control Revolving Fund to public agencies,
so the loan repayments are sufficient to pay the bonds that funded the advance,
and to further the policies established in ORS 468.425. In connection with the
program, the department may:
     (a) Establish one or more accounts in the
Water Pollution Control Revolving Fund, make covenants for the benefit of
bondowners regarding the deposit of amounts into those accounts and the use of
amounts in those accounts and pledge or reserve all or a portion of the amounts
in the Water Pollution Control Revolving Fund to pay bonds issued to fund
advances to the Water Pollution Control Revolving Fund under ORS 468.220 (1).
     (b) Establish requirements for loans made
from the Water Pollution Control Revolving Fund to assure that:
     (A) Adequate funds are available in the
Water Pollution Control Revolving Fund to permit payment of bonds that funded
advances to the Water Pollution Control Revolving Fund; and
     (B) Adequate funds will be available in
the Water Pollution Control Administration Fund to pay for costs of the program
and costs of operating the Water Pollution Control Revolving Fund.
     (c) Exercise any remedies available to the
department in connection with defaults on loans of advanced funds to public
agencies.
     (d) Take any other action reasonably
necessary to develop the program and provide for the payment of bonds issued to
fund advances to the Water Pollution Control Revolving Fund.
     (3) The department may make loans to finance
treatment works that are funded in part from advances or grants to the Water
Pollution Control Revolving Fund, and in part from funds available under ORS
468.220 (1). These loans may have a blended interest rate that reflects their
different sources of funding, and repayments of these loans may be allocated
proportionally between the Water Pollution Control Revolving Fund and the
Pollution Control Sinking Fund. [1987 c.648 §5; 1993 c.411 §8; 1995 c.79 §281]
     468.435 [1983 c.218 §2; repealed by 1985 c.222 §6]
     468.437
Loan applications; eligibility; repayment; default remedy. (1) Any public agency desiring a loan from
the Water Pollution Control Revolving Fund shall submit an application to the
Department of Environmental Quality on the form provided by the department. The
department may require an opinion from the departmentÂ’s bond counsel or other
counsel that the applicant has the legal authority to borrow from the Water
Pollution Control Revolving Fund. If a public agency relies on borrowing authority
granted by charter or law other than ORS 468.439, then with the consent of the
department and notwithstanding any limitation or requirement of the charter or
law, the public agency may borrow directly from the Water Pollution Control
Revolving Fund by issuing revenue bonds to the department. The requirements of
ORS 287A.150 do not apply to revenue bonds that are sold to the department
pursuant to this section.
     (2) Any public agency receiving a loan
from the Water Pollution Control Revolving Fund shall establish and maintain a
dedicated source of revenue or other acceptable source of revenue for the
repayment of the loan.
     (3) If a public agency defaults on
payments due to the Water Pollution Control Revolving Fund, the state may
withhold any amounts otherwise due to the public agency and direct that such
funds be applied to the payments and deposited into the fund. If the department
finds that the loan to the public agency is otherwise adequately secured, the
department may waive this right in the loan agreement or other loan
documentation. [1987 c.648 §6; 1989 c.560 §3; 2007 c.783 §205]
     468.439
Borrowing authority of public agency. Notwithstanding any limitation contained in any other provision of law
or local charter, a public agency may:
     (1) Borrow money from the Water Pollution
Control Revolving Fund through the Department of Environmental Quality;
     (2) Enter into loan agreements and make
related agreements with the department in which the public agency agrees to
repay the borrowed money in accordance with the terms of the loan agreement;
     (3) Covenant with the department regarding
the operation of treatment works and the imposition and collection of rates,
fees and charges for the treatment works;
     (4) Pledge all or part of the revenues of
the treatment works to pay the amount due under the loan agreement and notes in
accordance with ORS chapter 287A; and
     (5) Provide any additional security and
exercise any powers permitted to an issuer of revenue bonds under ORS chapter
287A. [1989 c.560 §2; 1993 c.411 §9; 2007 c.783 §206]
     468.440
Loan terms and interest rates; considerations; rules. (1) The Environmental Quality Commission
shall establish by rule policies for establishing loan terms and interest rates
for loans made from the Water Pollution Control Revolving Fund that ensure that
the objectives of ORS 468.423 to 468.440 are met and that adequate funds are
maintained in the Water Pollution Control Revolving Fund to meet future needs.
In establishing the policy, the commission shall take into consideration at
least the following factors:
     (a) The capability of the project to
enhance or protect water quality.
     (b) The ability of a public agency to
repay a loan.
     (c) Current market rates of interest.
     (d) The size of the community or district
to be served by the treatment works.
     (e) The type of project financed.
     (f) The ability of the applicant to borrow
elsewhere.
     (g) Whether advances have been made to the
Water Pollution Control Revolving Fund from the Pollution Control Fund that
must be repaid to the Pollution Control Sinking Fund.
     (2) The commission may establish an
interest rate ranging from zero to the market rate. The commission may
establish the loan term, provided that the loans must be fully amortized not
later than 20 years after project completion.
     (3) The commission shall adopt by rule any
procedures or standards necessary to carry out the provisions of ORS 468.423 to
468.440. [1987 c.648 §7; 1993 c.411 §10; 1995 c.79 §282; 2005 c.137 §1]
     468.450 [Formerly 449.840; repealed by 1991 c.920 §24]
RECLAIMED
PLASTIC PRODUCT TAX CREDIT
     468.451
Definitions for ORS 468.451 to 468.491. As used in ORS 468.451 to 468.491:
     (1) “Investment” means the amount of money
a person invests to acquire or construct equipment, personal property or
machinery necessary to collect, transport or process reclaimed plastic or
manufacture a reclaimed plastic product.
     (2) “Qualifying business” means a business
in Oregon that collects, transports, processes, reclaims plastic or
manufactures a reclaimed plastic product.
     (3) “Reclaimed plastic” means plastic from
industrial consumers, commercial users or post-consumer waste. “Reclaimed
plastic” includes shredded plastics, regrind, pellets or any similar product
manufactured from
     (4) “Reclaimed plastic product” means a
plastic product for which the majority of the plastic used in the product is
reclaimed plastic. [Formerly 468.925]
     468.453 [1977 c.650 §3; 1979 c.181 §1; renumbered
468A.550 in 1991]
     468.455 [Formerly 449.930; 1975 c.559 §4; 1977 c.650
§4; 1979 c.181 §2; repealed by 1991 c.920 §24]
     468.456
Policy. In the interest of
the public peace, health and safety, it is the policy of the State of
     468.458 [1975 c.559 §2; repealed by 1991 c.920 §24]
     468.460 [Formerly 449.933; 1975 c.559 §5; 1977 c.650
§5; 1979 c.181 §3; 1991 c.920 §19; renumbered 468A.595 in 1991]
     468.461
Application for certification of investment to collect, transport or process
reclaimed plastic or manufacture reclaimed plastic product; rules; fee. (1) Any person may apply to the Environmental
Quality Commission for certification under ORS 468.466 of an investment made by
the person in
     (2) The application shall be made in writing
in a form prescribed by the Department of Environmental Quality and shall
contain information on the actual investment including a description of the
materials incorporated therein, all machinery, personal property and equipment
made a part thereof, the existing or proposed operational procedure thereof,
and a statement of the proposed use of the reclaimed plastic product and the
portion of the actual cost properly allocable to collecting, transporting or
processing reclaimed plastic or to the process of manufacturing such reclaimed
plastic product as set forth in ORS 468.486.
     (3) The Director of the Department of
Environmental Quality may require any further information the director
considers necessary before a certificate is issued.
     (4) The application shall be accompanied
by a fee established under subsection (5) of this section. The fee may be
refunded if the application for certification is rejected.
     (5) By rule and after hearing the
commission may adopt a schedule of reasonable fees which the department may
require of applicants for certificates issued under ORS 468.466. Before the
adoption or revision of any such fees the commission shall estimate the total
cost of the program to the department. The fees shall be based on the
anticipated cost of filing, investigating, granting and rejecting the
applications and shall be designed not to exceed the total cost estimated by
the commission. Any excess fees shall be held by the department and shall be
used by the commission to reduce any future fee increases. The fee may vary
according to the size and complexity of the investment. The fees shall not be
considered by the commission as part of the cost of the investment to be
certified.
     (6) Any application for certification must
be made after the equipment, personal property or machinery necessary to
collect, transport or process reclaimed plastic or manufacture a reclaimed
plastic product is acquired or constructed and on or before December 31, 2001.
Failure to file a timely application shall make the investment cost ineligible
for tax credit certification. An application shall not be considered filed
until it is complete and ready for processing. The commission may grant an
extension of time to file an application for circumstances beyond the control of
the applicant that would make a timely filing unreasonable. However, the period
for filing an application shall not be extended to a date beyond December 31,
2001. [Formerly 468.935; 1995 c.746 §8]
     468.465 [Formerly 449.935; 1975 c.559 §6; repealed
by 1991 c.920 §24]
     468.466
Action on application; rejection; appeal; certification of investment. (1) The Environmental Quality Commission
shall act on an application for certification before the 120th day after the
filing of the application under ORS 468.461. The action of the commission shall
include certification of the actual cost of the investment and the portion of
the actual cost properly allocable to collecting, transporting or processing
reclaimed plastic or to the manufacture of a reclaimed plastic product as set
forth in ORS 468.486. Each certificate shall bear a separate serial number for
each such facility.
     (2) If the commission rejects an
application for certification, or certifies a lesser actual cost of the
investment or a lesser portion of the actual cost properly allocable to
collecting, transporting or processing reclaimed plastic or to the manufacture
of a reclaimed plastic product than was claimed in the application for
certification, the commission shall cause written notice of its action, and a
concise statement of the findings and reasons therefor, to be sent by
registered or certified mail to the applicant before the 120th day after the
filing of the application. Failure of the commission to act constitutes
approval of the application.
     (3) If the application is rejected for any
reason, including the information furnished by the applicant as to the cost of
the investment, or if the applicant is dissatisfied with the certification of
actual cost or portion of the actual cost properly allocable to collecting,
transporting or processing reclaimed plastic or to the manufacture of a
reclaimed plastic product, the applicant may appeal from the rejection as
provided in ORS 468.110. The rejection or the certification is final and
conclusive on all parties unless the applicant takes an appeal therefrom as
provided in ORS 468.110 before the 30th day after notice was mailed by the
commission.
     (4)(a) The commission shall certify an
investment, for which an application has been made under ORS 468.461, if the
commission finds that the investment was made in accordance with the
requirements of ORS 468.461 and 468.471.
     (b) No determination of the proportion of
the actual cost of the investment to be certified shall be made until receipt
of the application.
     (5) A person receiving a certificate under
this section may take tax relief only under ORS 315.324, depending upon the tax
status of the personÂ’s trade or business.
     (6) If the person receiving the
certificate is a partnership, each partner shall be entitled to take tax credit
relief as provided in ORS 315.324, based on that partnerÂ’s pro rata share of
the certified cost of the investment.
     (7) Certification under this section of an
investment qualifying under ORS 468.461 shall be granted for a period of five
consecutive years which five-year period shall begin with the tax year of the
person in which the investment is certified under this section. [Formerly
468.940]
     468.470 [Formerly 449.937; 1974 c.40 §1; 1975 c.559 §7;
1977 c.650 §6; 1979 c.181 §4; repealed by 1991 c.920 §24]
     468.471
Preliminary certification of investment. (1) Any person proposing to apply for certification of an investment
under ORS 468.461, before making the investment, shall file a request for
preliminary certification with the Department of Environmental Quality. The
request shall be in a form prescribed by the department. For investments made,
the Environmental Quality Commission may waive the filing of the application if
it finds the filing inappropriate because special circumstances render the
filing unreasonable and if it finds such investment would otherwise qualify for
tax credit certification pursuant to ORS 468.451 to 468.491.
     (2) Within 30 days of the receipt of a
request for preliminary certification, the department may require, as a
condition precedent to issuance of a preliminary certificate of approval, the
submission of plans and specifications. After examination thereof, the
department may request corrections and revisions to the plans and
specifications. The department may also require any other information necessary
to determine whether the proposed investment is in accordance with the
provisions of ORS chapters 459 and 459A and ORS chapters 468, 468A and 468B and
applicable rules and standards adopted pursuant thereto.
     (3) If the department determines that the
proposed investment is in accordance with the provisions of ORS chapters 459
and 459A and ORS chapters 468, 468A and 468B and applicable rules or standards
adopted pursuant thereto, it shall issue a preliminary certificate approving
the investment. If the department determines that the investment does not
comply with the provisions of ORS chapters 459 and 459A and ORS chapters 468,
468A and 468B and applicable rules or standards adopted pursuant thereto, the
commission shall issue an order denying certification.
     (4) If within 60 days of the receipt of
plans, specifications or any subsequently requested revisions or corrections to
the plans and specifications or any other information required pursuant to this
section, the department fails to issue a preliminary certificate of approval
and the commission fails to issue an order denying certification, the
preliminary certificate shall be considered to have been issued. The investment
must comply with the plans, specifications and any corrections or revisions
thereto, if any, previously submitted.
     (5) Within 20 days from the date of
mailing of the order, any person against whom an order is directed pursuant to
subsection (3) of this section may demand a hearing. The demand shall be in
writing, shall state the grounds for hearing and shall be mailed to the
Director of the Department of Environmental Quality. The hearing shall be
conducted in accordance with the applicable provisions of ORS chapter 183. [Formerly
468.945]
     468.472 [1975 c.559 §9; repealed by 1991 c.920 §24]
     468.474 [1975 c.559 §10; repealed by 1991 c.920 §24]
     468.475 [Formerly 449.939; 1975 c.559 §11; 1977
c.650 §8; 1979 c.181 §5; repealed by 1991 c.920 §24]
     468.476
Final certification. Except
if the Environmental Quality Commission, under ORS 468.471 (1), waives the
requirement for preliminary certification, no final certification shall be
issued by the commission under ORS 468.466 unless the investment was made in
accordance with the requirements of ORS 468.471 and in accordance with the
applicable provisions of ORS chapters 459 and 459A and ORS chapters 468, 468A
and 468B and the applicable rules or standards adopted pursuant thereto. [Formerly
468.950]
     468.480 [Formerly 449.941; 1975 c.559 §12; 1977
c.650 §10; 1979 c.181 §6; repealed by 1991 c.920 §24]
     468.481
Revocation of certificate; consequences. (1) Pursuant to the procedures for a contested case under ORS chapter
183, the Environmental Quality Commission may order the revocation of the
certification issued under ORS 468.466 of any investment, if it finds that:
     (a) The certification was obtained by
fraud or misrepresentation; or
     (b) The holder of the certificate has
failed substantially to operate the qualifying business as specified in such
certificate.
     (2) As soon as the order of revocation
under this section has become final, the commission shall notify the Department
of Revenue of such order.
     (3) If the certification of an investment
is ordered revoked pursuant to subsection (1)(a) of this section, all prior tax
relief provided to the holder of such certificate by virtue of such certificate
shall be forfeited and the Department of Revenue shall proceed to collect those
taxes not paid by the certificate holder as a result of the tax relief provided
to the holder under any provision of ORS 315.324.
     (4) If the certification of an investment
is ordered revoked pursuant to subsection (1)(b) of this section, the
certificate holder shall be denied any further relief provided under ORS
315.324 in connection with such investment, as the case may be, from and after
the date that the order of revocation becomes final. [Formerly 468.955]
     468.485 [Formerly 449.943; 1974 c.36 §15; 1975 c.559
§13; repealed by 1977 c.650 §11]
     468.486
Allocation of costs to collect, transport or process reclaimed plastic or
manufacture reclaimed plastic product; rules. (1) In establishing the portion of costs properly allocable to the
investment costs incurred to allow a person to collect, transport or process
reclaimed plastic or to manufacture a reclaimed plastic product qualifying for
certification under ORS 468.466, the Environmental Quality Commission shall
consider the following factors:
     (a) If applicable, the extent to which the
collection, transportation, processing or manufacturing process for which the
investment is made is used to convert reclaimed plastic into a salable or
usable commodity.
     (b) Any other factors which are relevant
in establishing the portion of the actual cost of the investment except return
on the investment properly allocable to the process that allows a person to
collect, transport or process reclaimed plastic or to manufacture a reclaimed
plastic product.
     (2) The portion of actual costs properly
allocable shall be from zero to 100 percent in increments of one percent. If
zero percent the commission shall issue an order denying certification.
     (3) The commission may adopt rules
establishing methods to be used to determine the portion of costs properly
allocable to the collection, transportation or processing of reclaimed plastic
or to the manufacture of a reclaimed plastic product. [Formerly 468.960]
     468.490 [1977 c.650 §9; repealed by 1991 c.920 §24]
     468.491
Limit on costs certified by commission for tax credit. (1) The total of all costs of investments
that receive a preliminary certification from the Environmental Quality
Commission for tax credits in any calendar year shall not exceed $1,500,000. If
the applications exceed the $1,500,000 limit, the commission, in the commissionÂ’s
discretion, shall determine the dollar amount certified for any investments and
the priority between applications for certification based upon the criteria
contained in ORS 468.451 to 458.491.
     (2) Not less than $500,000 of the
$1,500,000 annual certification limit shall be allocated to investments having
a certified cost of $100,000 or less for any qualifying business.
     (3) With respect to the balance of the
annual certification limit, the maximum cost certified for any investments
shall not exceed $500,000. However, if the applications certified in any
calendar year do not total $1,000,000, the commission may increase the
certified costs above the $500,000 maximum for previously certified
investments. The increases shall be allocated according to the commissionÂ’s
determination of how the previously certified investments meet the criteria of
ORS 468.451 to 468.491. The increased allocation to previously certified
investments under this subsection shall not include any of the $500,000
reserved under subsection (2) of this section. [Formerly 468.965]
     468.495 [1977 c.650 §7; repealed by 1991 c.920 §24]
     468.500 [Formerly 449.850; renumbered 468A.100 in
1991]
GREEN PERMITS
     468.501
Definitions for ORS 468.501 to 468.521. As used in ORS 468.501 to 468.521:
     (1) “Agency” means either the Department
of Environmental Quality or the Lane Regional Air Pollution Authority created
pursuant to ORS 468A.010 to 468A.180, or both, as the context requires.
     (2) “Commission” means the Environmental
Quality Commission.
     (3) “Environmental laws” means ORS 454.605
to 454.755, 459.005 to 459.153, 459.705 to 459.790, 459.992, 459.995, 465.003
to 465.034 and 466.005 to 466.385 and ORS chapters 468, 468A and 468B and rules
adopted thereunder. “Environmental laws” does not include any provision of
Oregon Revised Statutes or of any municipal ordinance or enactment that
regulates the selection of a location for a new facility.
     (4) “Facility” means any site or
contiguous sites, any manufacturing operation or contiguous operations, or any
business or municipal activity regulated under any provision of the
environmental laws.
     (5) “Green Permit” means a permit that
provides administrative benefits or reduces regulatory requirements to
facilities that meet criteria established by the Environmental Quality
Commission.
     (6) “Sponsor” means a person, group or
association that submits a proposal under the Green Permit program. [1997 c.553
§2]
     Note: 468.501 to 468.521 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
468 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.503
Purpose of Green Permits.
The purpose of ORS 468.501 to 468.521 is to authorize:
     (1) The issuance of Green Permits to
persons regulated under the environmental laws of the State of
     (2) The Environmental Quality Commission
to develop Green Permit criteria that will result in the use of innovative
environmental approaches or strategies not otherwise recognized or allowed
under existing regulations, to achieve environmental results that are
significantly better than otherwise required by law.
     (3) An agency to provide or, where
necessary, to seek exemptions or waivers from regulatory requirements as
considered necessary to implement the provisions of ORS 468.501 to 468.521.
     (4) An agency to encourage applications
for Green Permits that promote pollution prevention, source reduction, more
efficient use of natural resources, improvements in technology or practices,
utilization of environmental management systems and creation of public and
private entity partnerships that can achieve environmental results that are
significantly better overall than otherwise required by law. [1997 c.553 §1]
     Note: See note under 468.501.
     468.505 [Formerly 449.855; renumbered 468A.105 in
1991]
     468.506
Commission rulemaking to carry out Green Permit program. The Environmental Quality Commission shall
establish by rule criteria for Green Permits and procedures for the
application, review and public participation in the process of issuance of the
permits. The accepting, processing and issuing of Green Permits is a
discretionary function of the commission. In establishing the criteria for
Green Permits, the commission:
     (1) Shall consider the objectives set
forth in ORS 468.503;
     (2) May establish classes or categories of
Green Permits as the commission considers appropriate; and
     (3) May limit the number and duration of
such permits issued by the agencies for the purpose of evaluating the
effectiveness of the Green Permit program. [1997 c.553 §3; 2003 c.425 §2]
     Note: See note under 468.501.
     468.508
Eligibility for Green Permit.
Any person owning or operating a facility or contiguous facilities subject to
regulation under the environmental laws may act as a sponsor and propose a
Green Permit. [1997 c.553 §4]
     Note: See note under 468.501.
     468.510 [Formerly 449.857; renumbered 468A.110 in
1991]
     468.511
Environmental laws not applicable to facility operating under Green Permit. Notwithstanding any other provision of law,
any requirement under the environmental laws, except those required by treaty
or interstate compact or by a federal law, that is contrary to the terms and
provisions of a Green Permit shall not apply to a facility operating under a
Green Permit. Any prior conflicting permit condition shall be revised by the
agency that has jurisdiction over the Green Permit. Except as specifically
revised in a Green Permit, any existing environmental permit or requirement
shall remain in effect, notwithstanding issuance of a Green Permit. [1997 c.553
§5]
     Note: See note under 468.501.
     468.513
Judicial review of agency decision on issuance of Green Permit. The decision of an agency to refuse to issue
a Green Permit is not subject to judicial review. The decision of an agency to
issue a Green Permit may be appealed in accordance with the provisions of ORS
183.484 pertaining to review of an order in other than a contested case. [1997
c.553 §6]
     Note: See note under 468.501.
     468.515 [Formerly 449.870; renumbered 468A.115 in
1991]
     468.516
Termination of Green Permit.
If a sponsor operating a facility under a Green Permit fails to perform any
term or condition in the Green Permit, the agency may, after written notice to
the permittee, terminate the Green Permit in whole or in part. The permittee
may appeal the agencyÂ’s decision to terminate a Green Permit to the
Environmental Quality Commission. The commissionÂ’s decision on appeal shall be
an order in other than a contested case. [1997 c.553 §7]
     Note: See note under 468.501.
     468.518
Application for permit or approval affected by termination of Green Permit. After an agency issues a notice of
termination of a Green Permit in the manner provided in ORS 468.516, the operator
of the facility shall have 30 days to apply for any permit or approval affected
by the termination of all or a portion of the Green Permit. An application
filed during the 30-day period shall be considered a timely application for
renewal of a permit under the terms of the applicable law. The terms and
conditions of the Green Permit shall continue in effect until a final permit or
approval is issued or denied. In order to achieve an orderly transition and
compliance with the environmental laws, the agency may issue an order
establishing conditions for the interim operation of the facility. [1997 c.553 §8]
     Note: See note under 468.501.
     468.520 [Formerly 449.865; 1991 c.890 §1; renumbered
468A.120 in 1991]
     468.521
Recovery of costs of agency in developing, negotiating and publicizing Green
Permit; disposition of moneys collected. The agency shall recover the full cost of the agency in developing,
negotiating and publicizing a Green Permit in the following manner:
     (1) The sponsor shall fully reimburse the
agency for the agencyÂ’s full direct, indirect and all associated costs of
conducting the review, negotiating the relevant permit revisions, responding to
public comment, monitoring the provisions in the Green Permit and environmental
outcomes resulting from the Green Permit and publicizing and conducting the
public hearings.
     (2) The agency shall appropriately
document the full direct, indirect and all associated costs of the agency and
collect payment for such costs from the sponsor. The agency shall collect a
deposit from the sponsor, against which the agency shall bill until the deposit
is depleted. When the deposit is depleted, the agency shall collect an
additional deposit. The initial deposit shall accompany the sponsorÂ’s initial
Green Permit proposal and shall be in an amount not to exceed $25,000. The
agency shall deliver to the sponsor an accounting of all charges and the amount
of the deposit remaining at the closure of each monthÂ’s accounting records.
     (3) All moneys collected by the Department
of Environmental Quality pursuant to this section shall be deposited into the
General Fund of the State Treasury to an account of the Department of
Environmental Quality. Such moneys are continuously appropriated to the
Department of Environmental Quality for the payment of expenses of the
Department of Environmental Quality in carrying out the provisions of ORS
468.501 to 468.521. The Director of the Department of Environmental Quality
shall keep a record of all moneys deposited into the State Treasury pursuant to
this section and shall indicate by special cumulative accounts the source from
which moneys are derived and the individual activity against which each
withdrawal is charged. The fees collected under this section by the Lane
Regional Air Pollution Authority shall be retained by and shall be income to
the regional authority. Such fees shall be accounted for and expended in the
same manner as are the funds collected by the Department of Environmental
Quality under this section. [1997 c.553 §9; 2003 c.425 §3]
     Note: See note under 468.501.
     Note: Section 11, chapter 553, Oregon Laws 1997,
provides:
     Sec.
11. An agency may not issue
a Green Permit after January 2, 2008. [1997 c.553 §11; 1999 c.828 §1; 2003
c.425 §1]
     468.525 [Formerly 449.867; 1991 c.890 §2; renumbered
468A.125 in 1991]
     468.530 [Formerly 449.885; 1983 c.233 §1; renumbered
468A.130 in 1991]
     468.531
Legislative findings. (1)
The Legislative Assembly finds that the listing of an area on the National
Priorities List described in 42 U.S.C. 9605, commonly known as establishing a
Superfund site, and the remedial investigations and feasibility studies
undertaken following such a listing identify the presence of pollutants,
hazardous substances and contaminants in the area that are not directly
traceable to a particular responsible party.
     (2) The Legislative Assembly finds that
ORS 465.200 to 465.545 provide for joint and several liability among
potentially responsible parties for the cleanup of Superfund sites. Because
joint and several liability does not identify a potentially responsible partyÂ’s
share of cleanup costs, remedial actions are often delayed as potentially
responsible parties litigate each share of the liability.
     (3) The Legislative Assembly declares that
the state has the authority and the ability to facilitate cleanup of the
submerged and submersible lands in the Willamette River Superfund site.
     (4) The Legislative Assembly finds that
cleanup of the submerged and submersible lands of the Willamette River,
including the Superfund site, will provide benefits to the people of Oregon, to
industries and to living resources, water quality, water uses, recreation,
habitat protection, habitat preservation and other watershed qualities, and will
provide significant economic enhancement to the State of Oregon. [2003 c.696 §1]
     Note: 468.531 and 468.533 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
468 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     468.533
     (a) The Governor;
     (b) Two members of the House of
Representatives, appointed by the Speaker of the House of Representatives; and
     (c) Two members of the Senate, appointed
by the President of the Senate.
     (2) The purpose of the authority is to:
     (a) Receive periodic reports from the
Department of Environmental Quality, the United States Environmental Protection
Agency and potentially responsible parties involved in the remedial
investigation and feasibility study process relating to the listing of the
Willamette River on the National Priorities List described in 42 U.S.C. 9605;
and
     (b) Make recommendations to the
Legislative Assembly on the amount of general obligation bonds or other bonds
that would need to be issued to pay for the implementation of all or a portion
of the record of decision of the remedial investigation and feasibility study
process.
     (3) The Governor shall serve as
chairperson, and a majority of members constitutes a quorum for the transaction
of business.
     (4) All agencies of the state government,
as defined in ORS 174.111, are directed to assist the authority in the
performance of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the members of the authority
consider necessary to perform their duties.
     (5) The authority may hold public meetings
for the transaction of any of its business at the times and places as it may
prescribe. At any such public hearing, any person interested in the matter
being investigated may appear and testify.
     (6) The authority shall establish such
advisory or technical committees as it considers necessary to aid and advise
the authority in the performance of its duties. The authority shall determine
the representation, membership, terms and organization of the committees and
shall appoint committee members, except that at least one advisory committee
shall be composed of representatives of property owners in the area that is the
subject of the remedial investigation and feasibility study, state and local
environmental organizations, the Port of Portland, the City of Portland and
private-sector labor representatives.
     (7) Members of the advisory or technical
committees are not entitled to compensation nor reimbursement for actual and
necessary travel and other expenses. [2003 c.696 §3]
     Note: See note under 468.531.
     468.535 [1973 c.835 §99; 1987 c.660 §28; 1987 c.741 §20;
renumbered 468A.135 in 1991]
     468.540 [Formerly 449.910; renumbered 468A.140 in
1991]
     468.545 [Formerly 449.863; renumbered 468A.145 in
1991]
     468.550 [Formerly 449.890; renumbered 468A.150 in
1991]
     468.555 [Formerly 449.883; 1991 c.752 §19;
renumbered 468A.155 in 1991]
     468.560 [Formerly 449.900; renumbered 468A.160 in
1991]
     468.565 [Formerly 449.905; renumbered 468A.165 in
1991]
     468.570 [Formerly 449.915; renumbered 468A.170 in
1991]
     468.575 [Formerly 449.920; renumbered 468A.175 in
1991]
     468.580 [Formerly 449.923; renumbered 468A.180 in
1991]
     468.600 [1975 c.366 §1; renumbered 468A.650 in 1991]
     468.605 [1975 c.366 §2; 1977 c.18 §1; 1977 c.206 §1;
1983 c.148 §1; renumbered 468A.655 in 1991]
     468.610 [1977 c.206 §4; renumbered 468A.660 in 1991]
     468.612 [1989 c.903 §2; renumbered 468A.625 in 1991]
     468.614 [1989 c.903 §3; renumbered 468A.630 in 1991]
     468.615 [1977 c.206 §2; repealed by 1987 c.414 §172]
     468.616 [1989 c.903 §4; renumbered 468A.635 in 1991]
     468.618 [1989 c.903 §5; renumbered 468A.640 in 1991]
     468.620 [1977 c.206 §3; repealed by 1987 c.414 §172]
     468.621 [1989 c.903 §6; renumbered 468A.645 in 1991]
     468.630 [1983 c.333 §4; renumbered 468A.460 in 1991]
     468.635 [1983 c.333 §8; renumbered 468A.465 in 1991]
     468.640 [1983 c.333 §7; renumbered 468A.470 in 1991]
     468.645 [1983 c.333 §9; repealed by 1991 c.752 §28]
     468.650 [1983 c.333 §10; 1991 c.752 §19a; renumbered
468A.475 in 1991]
     468.655 [1983 c.333 §§5,6; 1991 c.752 §20;
renumbered 468A.480 in 1991]
     468.659 [1989 c.917 §2; 1993 c.742 §106; repealed by
1997 c.82 §7]
     468.660 [1989 c.917 §1; repealed by 1997 c.82 §7]
     468.661 [1989 c.917 §20; 1991 c.67 §131; repealed by
1997 c.82 §7]
     468.662 [1989 c.917 §3; repealed by 1997 c.82 §7]
     468.663 [1989 c.917 §25; 1993 c.742 §107; repealed
by 1997 c.82 §7]
     468.664 [1989 c.917 §4; 1993 c.742 §108; repealed by
1997 c.82 §7]
     468.665 [1989 c.917 §15; 1993 c.742 §109; repealed
by 1997 c.82 §7]
     468.666 [1989 c.917 §5; repealed by 1997 c.82 §7]
     468.667 [1989 c.917 §8; repealed by 1997 c.82 §7]
     468.668 [1989 c.917 §9; 1991 c.67 §132; 1993 c.736 §55;
repealed by 1997 c.82 §7]
     468.669 [1989 c.917 §11; repealed by 1997 c.82 §7]
     468.670 [1989 c.917 §13; repealed by 1997 c.82 §7]
     468.671 [1989 c.917 §16; repealed by 1997 c.82 §7]
     468.672 [1989 c.917 §18; repealed by 1997 c.82 §7]
     468.673 [1989 c.917 §21; repealed by 1997 c.82 §7]
     468.674 [1989 c.917 §24; repealed by 1997 c.82 §7]
     468.675 [1989 c.917 §6; repealed by 1993 c.742 §105]
     468.676 [1989 c.917 §7; repealed by 1993 c.742 §105]
     468.677 [1989 c.917 §10; repealed by 1993 c.742 §105]
     468.678 [1989 c.917 §12; repealed by 1993 c.742 §105]
     468.679 [1989 c.917 §14; repealed by 1993 c.742 §105]
     468.680 [1989 c.917 §17; repealed by 1993 c.742 §105]
     468.681 [1989 c.917 §19; repealed by 1993 c.742 §105]
     468.682 [1989 c.917 §22; repealed by 1993 c.742 §105]
     468.683 [1989 c.917 §23; repealed by 1993 c.742 §105]
     468.685 [1989 c.917 §26; repealed by 1995 c.79 §283]
     468.686 [1989 c.847 §2; renumbered 468B.200 in 1991]
     468.687 [1989 c.847 §3; renumbered 468B.205 in 1991]
     468.688 [1989 c.847 §4; renumbered 468B.210 in 1991]
     468.689 [1989 c.847 §5; renumbered 468B.215 in 1991]
     468.690 [1989 c.847 §6; renumbered 468B.220 in 1991]
     468.691 [1989 c.833 §17; renumbered 468B.150 in
1991]
     468.692 [1989 c.833 §18; renumbered 468B.155 in
1991]
     468.693 [1989 c.833 §19; 1991 c.67 §133; renumbered
468B.160 in 1991]
     468.694 [1989 c.833 §25; renumbered 468B.165 in
1991]
     468.695 [1989 c.833 §27; renumbered 468B.170 in
1991]
     468.696 [1989 c.833 §§31,33; renumbered 468B.175 in
1991]
     468.698 [1989 c.833 §§36,37; renumbered 468B.180 in
1991]
     468.699 [1989 c.833 §29; renumbered 468B.185 in
1991]
     468.700 [Formerly 449.075; renumbered 468B.005 in
1991]
     468.705 [Formerly 449.070; renumbered 468B.010 in
1991]
     468.710 [Formerly 449.077; renumbered 468B.015 in
1991]
     468.715 [Formerly 449.095; renumbered 468B.020 in
1991]
     468.720 [Formerly 449.079; renumbered 468B.025 in
1991]
     468.725 [Formerly 449.081; renumbered 468B.030 in
1991]
     468.730 [1973 c.92 §3; renumbered 468B.035 in 1991]
     468.732 [1985 c.569 §7; renumbered 468B.040 in 1991]
     468.734 [1985 c.569 §8; renumbered 468B.045 in 1991]
     468.735 [Formerly 449.086; 1985 c.673 §178;
renumbered 468B.048 in 1991]
     468.740 [Formerly 449.083; 1989 c.847 §7; renumbered
468B.050 in 1991]
     468.742 [Formerly 454.415; 1979 c.98 §1; 1991 c.735 §27;
renumbered 468B.055 in 1991]
     468.745 [Formerly 449.103; 1979 c.584 §1; renumbered
468B.060 in 1991]
     468.750 [Formerly 449.111; 1975 c.172 §1; renumbered
468B.065 in 1991]
     468.755 [Formerly 449.113; renumbered 468B.070 in
1991]
     468.760 [Formerly 449.137; repealed by 1991 c.764 §8]
     468.765 [Formerly 449.140; renumbered 468B.075 in
1991]
     468.770 [Formerly 449.150; renumbered 468B.080 in
1991]
     468.775 [Formerly 449.109; 1983 c.338 §937;
renumbered 468B.085 in 1991]
     468.777 [1979 c.617 §2; renumbered 468B.090 in 1991]
     468.778 [1983 c.257 §2; renumbered 468B.095 in 1991]
     468.780 [Formerly 449.155; 1989 c.1082 §4; 1991
c.606 §1; 1991 c.651 §3; renumbered 468B.300 in 1991]
     468.785 [Formerly 449.157; renumbered 468B.305 in
1991]
     468.790 [Formerly 449.159; renumbered 468B.310 in
1991]
     468.795 [Formerly 449.161; renumbered 468B.315 in
1991]
     468.800 [Formerly 449.163; renumbered 468B.320 in
1991]
     468.802 [1977 c.222 §§2,3; renumbered 468B.325 in
1991]
     468.805 [Formerly 449.165; renumbered 468B.330 in
1991]
     468.810 [Formerly 449.167; 1977 c.704 §11; repealed
by 1985 c.733 §23]
     468.815 [Formerly 449.175; renumbered 468B.335 in
1991]
     468.817 [1989 c.859 §§3,5; renumbered 468B.450 in
1991]
     468.819 [1989 c.859 §4; renumbered 468B.455 in 1991]
     468.821 [1989 c.859 §2; renumbered 468B.460 in 1991]
     468.823 [1989 c.1042 §2; renumbered 468B.475 in
1991]
     468.825 [1989 c.1042 §3; renumbered 468B.480 in
1991]
     468.827 [1989 c.1042 §4; renumbered 468B.485 in
1991]
     468.829 [1989 c.1042 §5; renumbered 468B.490 in
1991]
     468.831 [1989 c.1082 §§2,5; renumbered 468B.495 in
1991]
     468.833 [1989 c.1082 §3; renumbered 468B.500 in
1991]
     468.850 [1977 c.483 §2; renumbered 459A.555 in 1993]
     468.853 [1977 c.483 §3; renumbered 459A.560 in 1993]
     468.856 [1977 c.483 §4; renumbered 459A.565 in 1993]
     468.859 [1977 c.483 §5; renumbered 459A.570 in 1993]
     468.862 [1977 c.483 §6; renumbered 459A.575 in 1993]
     468.865 [1977 c.483 §7; renumbered 459A.580 in 1993]
     468.868 [1977 c.483 §8; renumbered 459A.585 in 1993]
     468.869 [1989 c.268 §2; renumbered 459A.590 in 1993]
     468.870 [1989 c.268 §3; renumbered 459A.595 in 1993]
     468.871 [1977 c.483 §1; renumbered 459A.599 in 1993]
     468.875 [1987 c.741 §2; renumbered 468A.700 in 1991]
     468.877 [1987 c.741 §3; renumbered 468A.705 in 1991]
     468.879 [1987 c.741 §5; renumbered 468A.710 in 1991]
     468.881 [1987 c.741 §6; renumbered 468A.715 in 1991]
     468.883 [1987 c.741 §7; renumbered 468A.720 in 1991]
     468.885 [1987 c.741 §§8,17; renumbered 468A.725 in
1991]
     468.887 [1987 c.741 §9; renumbered 468A.730 in 1991]
     468.889 [1987 c.741 §10; renumbered 468A.735 in
1991]
     468.891 [1987 c.741 §11; renumbered 468A.740 in
1991]
     468.893 [1987 c.741 §12; 1991 c.650 §7; renumbered
468A.745 in 1991]
     468.895 [1987 c.741 §13; 1989 c.171 §63; renumbered
468A.750 in 1991]
     468.897 [1987 c.741 §14; renumbered 468A.755 in
1991]
     468.899 [1987 c.741 §16; renumbered 468A.760 in
1991]
     468.900 [1977 c.867 §23; 1983 c.740 §183; renumbered
466.505]
     468.901 [1985 c.737 §2; repealed by 1987 c.539 §1
(466.705 enacted in lieu of 468.901)]
     468.902 [1985 c.737 §3; repealed by 1987 c.539 §3
(466.715 enacted in lieu of 468.902)]
     468.903 [1977 c.867 §24; renumbered 466.510]
     468.904 [1985 c.737 §4; repealed by 1987 c.539 §7
(466.725 enacted in lieu of 468.904)]
     468.905 [1985 c.737 §5; repealed by 1987 c.539 §19
(466.765 enacted in lieu of 468.905)]
     468.906 [1977 c.867 §25; renumbered 466.515]
     468.907 [1985 c.737 §6; repealed by 1987 c.539 §29
(466.805 enacted in lieu of 468.907)]
     468.908 [1985 c.737 §7; repealed by 1987 c.539 §12
(466.745 enacted in lieu of 468.908)]
     468.909 [1977 c.867 §26; renumbered 466.520]
     468.910 [1985 c.737 §8; 1987 c. 539 §31; renumbered
466.800 in 1987]
     468.911 [1985 c.737 §9; 1987 c.539 §18; renumbered
466.710 in 1987]
     468.912 [1977 c.867 §27; renumbered 466.525]
     468.913 [1985 c.737 §10; 1987 c.539 §40; renumbered
466.720 (2) in 1987]
     468.914 [1985 c.737 §11; repealed by 1987 c.539 §33;
466.820 enacted in lieu of 468.914]
     468.915 [1977 c.867 §28; repealed by 1979 c.32 §1]
     468.916 [1985 c.737 §12; repealed by 1987 c.539 §45]
     468.917 [1985 c.737 §13; repealed by 1987 c.539 §45]
     468.918 [1977 c.867 §29; repealed by 1979 c.32 §1]
ENVIRONMENTAL
CRIMES
     468.920
Definitions for ORS 468.922 to 468.956. For purposes of ORS 468.922 to 468.956:
     (1) “Knowingly”:
     (a) Has the meaning given that term in ORS
161.085; or
     (b) Means a person acts with a conscious
purpose to avoid knowledge of a conduct or a circumstance in violation of ORS
824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825.
     (2) “Substantial harm to human health or
the environment” means:
     (a) Physical injury, as defined in ORS
161.015, to a human being or demonstrable substantial risk of serious physical
injury, as defined in ORS 161.015, to a human being; or
     (b) Substantial damage to wildlife, flora,
aquatic or marine life, to habitat or to livestock or agricultural crops.
     (3) Except as provided in ORS 161.155 or
161.450, an individual is not criminally liable solely because of the
individualÂ’s status in a business, organization or other public or private
entity nor is knowledge possessed by an individual other than the defendant
attributable to the defendant.
     (4) Nothing in this section is intended to
amend or modify ORS 161.150, 161.155, 161.160, 161.165, 161.170, 161.175,
161.450 or 161.455. [1993 c.422 §16]
     468.921 [1977 c.867 §30; renumbered 466.530]
     468.922
Unlawful disposal, storage or treatment of hazardous waste in the second
degree. (1) A person commits
the crime of unlawful disposal, storage or treatment of hazardous waste in the
second degree if the person, in violation of ORS 466.095 or 466.100 or any
rule, standard, license, permit or order adopted or issued under ORS 466.020,
466.095 or 466.100, knowingly treats, stores or disposes of hazardous waste.
     (2)(a) Subject to ORS 153.022, unlawful
disposal, storage or treatment of hazardous waste in the second degree is a
Class B misdemeanor.
     (b) Notwithstanding ORS 161.635, in
addition to any term of imprisonment that the court may impose under paragraph
(a) of this subsection, the court may impose a fine of up to $10,000. [1993
c.422 §4; 1999 c.1051 §305]
     468.925 [1985 c.684 §3; 1989 c.958 §1; renumbered
468.451 in 1993]
     468.926
Unlawful disposal, storage or treatment of hazardous waste in the first degree. (1) A person commits the crime of unlawful
disposal, storage or treatment of hazardous waste in the first degree if the
person, in violation of ORS 466.095 or 466.100 or any rule, standard, license,
permit or order adopted or issued under ORS 466.020, 466.095 or 466.100,
knowingly disposes of, stores or treats hazardous waste and:
     (a) As a result, recklessly causes
substantial harm to human health or the environment; or
     (b) Knowingly disregards the law in
committing the violation.
     (2) Unlawful disposal, storage or
treatment of hazardous waste in the first degree is a Class B felony.
     (3) Notwithstanding ORS 161.625 and
subsection (2) of this section, upon a second conviction for unlawful disposal,
storage or treatment of hazardous waste in the first degree within a five-year
period, the court may require the defendant to pay an amount, fixed by the
court, not exceeding $200,000 in addition to any other sentence imposed under
subsection (2) of this section. [1993 c.422 §2]
     468.929
Unlawful transport of hazardous waste in the second degree. (1) A person commits the crime of unlawful
transport of hazardous waste in the second degree if the person, in violation
of ORS 466.080, 824.090 or 825.258 or any rule, standard, license, permit or
order adopted or issued under ORS 466.020, 466.080, 824.090 or 825.258,
knowingly transports hazardous waste.
     (2)(a) Subject to ORS 153.022, unlawful
transport of hazardous waste in the second degree is a Class B misdemeanor.
     (b) Notwithstanding ORS 161.635, in
addition to any term of imprisonment that the court may impose under paragraph
(a) of this subsection, the court may impose a fine of up to $10,000. [1993
c.422 §5; 1999 c.1051 §306]
     468.930 [1985 c.684 §2; 1989 c.958 §2; renumbered
468.456 in 1993]
     468.931
Unlawful transport of hazardous waste in the first degree. (1) A person commits the crime of unlawful
transport of hazardous waste in the first degree if the person, in violation of
ORS 466.080, 824.090 or 825.258 or any rule, standard, license, permit or order
adopted or issued under ORS 466.020, 466.080, 824.090 or 825.258, knowingly
transports hazardous waste, and:
     (a) As a result, recklessly causes
substantial harm to human health or the environment; or
     (b) Knowingly disregards the law in
committing the violation.
     (2) Unlawful transport of hazardous waste
in the first degree is a Class B felony.
     (3) Notwithstanding ORS 161.625 and
subsection (2) of this section, upon a second conviction for unlawful transport
of hazardous waste in the first degree within a five-year period, the court may
require the defendant to pay an amount, fixed by the court, not exceeding
$200,000 in addition to any other sentence imposed under subsection (2) of this
section. [1993 c.422 §3]
     468.933
Determination of number of punishable offenses under ORS 468.922, 468.926,
468.929 and 468.931.
Notwithstanding ORS 161.067, each day on which a violation occurs or continues
under ORS 468.922, 468.926, 468.929 or 468.931 is a separately punishable
offense. [1993 c.422 §6]
     468.935 [1985 c.684 §4; 1989 c.958 §3; renumbered
468.461 in 1993]
     468.936
Unlawful air pollution in the second degree. (1) A person commits the crime of unlawful air pollution in the second
degree if the person knowingly violates any applicable requirement of ORS
chapter 468A or a permit, rule or order adopted or issued under ORS chapter
468A.
     (2) Notwithstanding ORS 161.515 and
subject to ORS 153.022, unlawful air pollution in the second degree is a
criminal offense punishable solely by a fine of up to $10,000. [1993 c.422 §8;
1999 c.1051 §307]
     468.939
Unlawful air pollution in the first degree. (1) A person commits the crime of unlawful air pollution in the first
degree if the person, in violation of ORS chapter 468A or any rule, permit,
order or any applicable requirement adopted or issued under ORS chapter 468A,
knowingly discharges, emits or allows to be discharged or emitted any air
contaminant into the outdoor atmosphere, and:
     (a) As a result, recklessly causes
substantial harm to human health or the environment; or
     (b) Knowingly disregards the law in
committing the violation.
     (2) Unlawful air pollution in the first
degree is a Class B felony.
     (3) Notwithstanding ORS 161.625 and
subsection (2) of this section, upon a second conviction for unlawful air
pollution in the first degree within a five-year period, the court may require
the defendant to pay an amount, fixed by the court, not exceeding $200,000 in
addition to any other sentence imposed under subsection (2) of this section. [1993
c.422 §7]
     468.940 [1985 c.684 §5; 1989 c.958 §4; 1991 c.877 §38;
renumbered 468.466 in 1993]
     468.941
Determination of number of punishable offenses under ORS 468.936 and 468.939. Notwithstanding ORS 161.067, each day on
which a violation occurs or continues under ORS 468.936 or 468.939 is a
separately punishable offense. [1993 c.422 §9]
     468.943
Unlawful water pollution in the second degree. (1) A person commits the offense of unlawful
water pollution in the second degree if the person with criminal negligence
violates ORS chapter 468B or any rule, standard, license, permit or order
adopted or issued under ORS chapter 468B.
     (2) Subject to ORS 153.022, unlawful water
pollution in the second degree is punishable by a fine of up to $25,000 or
imprisonment for not more than one year, or both. [1993 c.422 §11; 1999 c.1051 §308]
     468.945 [1985 c.684 §6; 1989 c.958 §5; renumbered
468.471 in 1993]
     468.946
Unlawful water pollution in the first degree. (1) A person commits the crime of unlawful water pollution in the
first degree if the person, in violation of ORS chapter 468B or any rule,
standard, license, permit or order adopted or issued under ORS chapter 468B, knowingly
discharges, places or causes to be placed any waste into the waters of the
state or in a location where the waste is likely to escape or be carried into
the waters of the state and:
     (a) As a result, recklessly causes
substantial harm to human health or the environment; or
     (b) Knowingly disregards the law in
committing the violation.
     (2) Unlawful water pollution in the first
degree is a Class B felony.
     (3) Notwithstanding ORS 161.625 and
subsection (2) of this section, upon a second conviction for unlawful water
pollution in the first degree within a five-year period, the court may require
the defendant to pay an amount, fixed by the court, not exceeding $200,000 in
addition to any other sentence imposed under subsection (2) of this section. [1993
c.422 §10]
     468.949
Determination of number of punishable offenses under ORS 468.943 and 468.946. Notwithstanding ORS 161.067, each day on
which a violation occurs or continues under ORS 468.943 or 468.946 is a
separately punishable offense. [1993 c.422 §12]
     468.950 [1985 c.684 §7; 1989 c.958 §6; renumbered
468.476 in 1993]
     468.951
Environmental endangerment.
(1) A person commits the crime of environmental endangerment if the person:
     (a) Knowingly commits the crime of
unlawful disposal, storage or treatment of hazardous waste in the first degree,
unlawful transport of hazardous waste in the first degree, unlawful air
pollution in the first degree or unlawful water pollution in the first degree;
and
     (b) As a result, places another person in
imminent danger of death or causes serious physical injury.
     (2) Environmental endangerment is a felony
punishable:
     (a) If the defendant is an individual and
notwithstanding ORS 161.625, by imprisonment of not more than 15 years, a fine
of not more than $1,000,000, or both.
     (b) If the defendant is other than an
individual and notwithstanding ORS 161.625, by a fine of not more than
$2,000,000.
     (c) Notwithstanding ORS 161.625, in the
case of a second or subsequent conviction under this section, by imprisonment
of not more than 30 years, a fine of not more than $5,000,000, or both.
     (3) As used in this section, “serious
physical injury” has the meaning given in ORS 161.015. [1993 c.422 §13]
     468.953
Supplying false information to agency. (1) A person commits the crime of supplying false information to any
agency if the person:
     (a) Makes any false material statement,
representation or certification knowing it to be false, in any application,
notice, plan, record, report or other document required by any provision of ORS
chapter 465, 466, 468, 468A or 468B or any rule adopted pursuant to ORS chapter
465, 466, 468, 468A or 468B;
     (b) Omits any material or required
information, knowing it to be required, from any document described in
paragraph (a) of this subsection; or
     (c) Alters, conceals or fails to file or
maintain any document described in paragraph (a) of this subsection in knowing
violation of any provision of ORS chapter 465, 466, 468, 468A or 468B or any
rule adopted pursuant to ORS chapter 465, 466, 468, 468A or 468B.
     (2) Supplying false information is a Class
C felony. [1993 c.422 §14]
     468.955 [1985 c.684 §8; 1987 c.158 §95; 1989 c.958 §7;
renumbered 468.481 in 1993]
     468.956
Refusal to produce material subpoenaed by commission. Refusal, without good cause, to produce
books, papers or information subpoenaed by the Environmental Quality
Commission, the Department of Environmental Quality or the regional air quality
control authority or any report required by law or by the commission, the
department or a regional authority pursuant to ORS 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters
468, 468A and 468B is a Class A misdemeanor. [1993 c.422 §15]
     468.959
Upset or bypass as affirmative defense. (1) It is an affirmative defense to any offense under ORS 468.922 to
468.946 that the alleged violation was the result of an upset or bypass.
     (2) For purposes of this section:
     (a) “Bypass” means the temporary discharge
of waste or an air contaminant in violation of ORS chapter 465, 466, 468, 468A
or 468B or any rule adopted or order or permit issued thereunder, under
circumstances in which the defendant reasonably believed that the discharge was
necessary to prevent loss of life, personal injury or severe property damage,
or to minimize environmental harm.
     (b) “Upset” includes an exceptional and
unexpected occurrence in which there is unintentional and temporary violation
of the requirements of ORS 824.050 to 824.110 or ORS chapter 465, 466, 468,
468A, 468B or 825 or of any rule adopted or permit or order issued under ORS
824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B, or 825 because of
factors beyond the reasonable control of the regulated person or entity. “Upset”
does not include a violation caused by:
     (A) Operational error;
     (B) Improperly designed facilities;
     (C) Lack of preventive maintenance; or
     (D) Careless or improper operation.
     (3) To establish the affirmative defense
of upset or bypass, the defendant must prove the occurrence of an upset or
bypass and that the defendant:
     (a) Reported the upset or bypass to the
Department of Environmental Quality or other appropriate agency within 24 hours
or as required by statute, rule, permit or order, whichever is sooner, and, if
the original notice was oral, delivered written notice to the Department of
Environmental Quality or other agency with regulatory jurisdiction within four
calendar days;
     (b) Submitted complete documentation of
the upset or bypass to the Department of Environmental Quality or other agency
with regulatory jurisdiction as required by statute, rule, order or permit; and
     (c) Took appropriate corrective action,
including action to minimize damage, as soon as reasonably possible.
     (4) It is an affirmative defense to an
offense under ORS 468.922 to 468.946 that the defendant:
     (a) Did not cause or create the condition
or occurrence that constitutes the offense;
     (b) Reported the condition or occurrence
to the Department of Environmental Quality or other agency with regulatory
jurisdiction as soon as practicable after the defendant discovered it; and
     (c) Took reasonable steps to correct the
violation. [1993 c.422 §17]
     468.960 [1985 c.684 §9; 1989 c.958 §8; renumbered
468.486 in 1993]
     468.961
Approval of Attorney General or district attorney before bringing felony
charge; guidelines for bringing felony charge; model guidelines. (1) Except in exigent circumstances, no
person shall be charged with a felony under ORS 468.922 to 468.956 without the
personal approval of the district attorney of the county or the Attorney
General of the State of
     (2) In order to promote consistency in
bringing criminal prosecutions under ORS 468.922 to 468.956, the district
attorney of each county shall adopt written guidelines for filing felony criminal
charges under ORS 468.922 to 468.956. The written guidelines, at a minimum,
shall require the district attorney to consider and apply the following factors
in determining whether to file criminal charges:
     (a) The complexity and clarity of the
statute or regulation violated;
     (b) The extent to which the person was or
should have been aware of the requirement violated;
     (c) The existence and effectiveness of the
personÂ’s program to promote compliance with environmental regulations;
     (d) The magnitude and probability of the
actual or potential harm to humans or to the environment;
     (e) The need for public sanctions to
protect human health and the environment or to deter others from committing
similar violations;
     (f) The person’s history of repeated violations
of environmental laws after having been given notice of those violations;
     (g) The person’s false statements,
concealment of misconduct or tampering with monitoring or pollution control
equipment;
     (h) The person’s cooperation with
regulatory authorities, including voluntary disclosure and prompt subsequent
efforts to comply with applicable regulations and to remedy harm caused by the
violation;
     (i) The appropriate regulatory agency’s
current and past policy and practice regarding the enforcement of the
applicable environmental law; and
     (j) The person’s good faith effort to
comply with the law to the extent practicable.
     (3) In order to promote consistency and
uniformity in prosecutorial policies, the Attorney General, in consultation
with the Oregon District Attorneys Association, and after appropriate
opportunity for public comment, shall adopt model guidelines for prosecution of
environmental crimes. The Attorney GeneralÂ’s model guidelines shall provide for
consideration and application of the factors described in subsection (2) of
this section. A district attorney may fulfill the district attorneyÂ’s
responsibility under subsection (2) of this section by adopting the Attorney
GeneralÂ’s model guidelines.
     (4) Prior to or in conjunction with the
filing of felony charges under ORS 468.922 to 468.956, the district attorney or
the Attorney General shall file a certification with the court that the
guidelines described in subsections (2) and (3) of this section have been
applied and that, in the opinion of the district attorney or Attorney General,
as the case may be, the criminal charges are being filed in accordance with the
guidelines. [1993 c.422 §19]
     Note: Legislative Counsel has substituted “ORS
468.922 to 468.956” for the words “this 1993 Act” in sections 19 and 20,
chapter 422, Oregon Laws 1993, compiled as 468.961 and 468.963. Other ORS
references have not been substituted, pursuant to 173.160. These sections may
be determined by referring to the 1993 Comparative Section Table located in
Volume 20 of ORS.
     468.962
Notice to Department of Revenue of environmental felony. If a person is convicted of a felony under
ORS 468.922 to 468.956, the county district attorney or the Attorney General,
whichever was the prosecuting officer, shall give notice of the conviction to
the Department of Revenue. [2001 c.928 §8]
     468.963
Environmental audit privilege; exceptions; burden of proving privilege; waiver;
disclosure after in camera review. (1) In order to encourage owners and operators of facilities and persons
conducting other activities regulated under ORS 824.050 to 824.110 or ORS
chapter 465, 466, 468, 468A, 468B or 825, or the federal, regional or local
counterpart or extension of such statutes, both to conduct voluntary internal
environmental audits of their compliance programs and management systems and to
assess and improve compliance with such statutes, an environmental audit
privilege is recognized to protect the confidentiality of communications
relating to such voluntary internal environmental audits.
     (2) An Environmental Audit Report shall be
privileged and shall not be admissible as evidence in any civil or
administrative proceeding, except as provided in subsections (3) and (4) of
this section. The privilege provided in this subsection does not apply to a
criminal investigation or proceeding. When an Environmental Audit Report is
obtained in connection with a criminal investigation or proceeding, the
privilege provided in this subsection related to civil or administrative
proceedings is not waived.
     (3)(a) The privilege described in
subsection (2) of this section does not apply to the extent that it is waived
expressly or by implication by the owner or operator of a facility or persons
conducting an activity that prepared or caused to be prepared the Environmental
Audit Report. The release of an Environmental Audit Report by the owner or
operator of a facility to any party or to any public body for purposes of
negotiating, arranging or facilitating the sale, lease or financing of a
property or a facility, or a portion of a property or facility:
     (A) Is not a waiver of the privilege; and
     (B) Does not create a right for a public
body to require the release of an Environmental Audit Report.
     (b) In a civil or administrative
proceeding, a court of record, after in camera review consistent with the
Oregon Rules of Civil Procedure, shall require disclosure of material for which
the privilege described in subsection (2) of this section is asserted, if such
court determines that:
     (A) The privilege is asserted for a
fraudulent purpose;
     (B) The material is not subject to the
privilege; or
     (C) Even if subject to the privilege, the
material shows evidence of noncompliance with ORS 824.050 to 824.110 or ORS
chapter 465, 466, 468, 468A, 468B or 825, or with the federal, regional or
local counterpart or extension of such statutes, appropriate efforts to achieve
compliance with which were not promptly initiated and pursued with reasonable
diligence.
     (c) A party asserting the environmental
audit privilege described in subsection (2) of this section has the burden of
proving the privilege, including, if there is evidence of noncompliance with
ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or the
federal, regional or local counterpart or extension of such statutes, proof
that appropriate efforts to achieve compliance were promptly initiated and
pursued with reasonable diligence. A party seeking disclosure under subsection
(3)(b)(A) of this section has the burden of proving that the privilege is
asserted for a fraudulent purpose.
     (4)(a) A district attorney, the Attorney
General or a governmental agency having probable cause to believe an offense
has been committed under ORS 468.922 to 468.956 based upon information obtained
from a source independent of an Environmental Audit Report, may obtain an
Environmental Audit Report for which a privilege is asserted under subsection
(2) of this section pursuant to search warrant, criminal subpoena or discovery
as allowed by ORS 135.835. The district attorney, Attorney General or
governmental agency shall immediately place the report under seal and shall not
review or disclose its contents.
     (b) Within 30 days of the district
attorneyÂ’s, Attorney GeneralÂ’s or governmental agencyÂ’s obtaining an
Environmental Audit Report, the owner or operator who prepared or caused to be
prepared the report may file with the appropriate court a petition requesting
an in camera hearing on whether the Environmental Audit Report or portions
thereof are privileged under this section or subject to disclosure. Failure by
the owner or operator to file such petition shall waive the privilege.
     (c) Upon filing of such petition, the
court shall issue an order scheduling an in camera hearing, within 45 days of
the filing of the petition, to determine whether the Environmental Audit Report
or portions thereof are privileged under this section or subject to disclosure.
Such order further shall allow the district attorney, Attorney General or
governmental agency to remove the seal from the report to review the report and
shall place appropriate limitations on distribution and review of the report to
protect against unnecessary disclosure. The district attorney, Attorney General
or governmental agency may consult with enforcement agencies regarding the
contents of the report as necessary to prepare for the in camera hearing.
However, the information used in preparation for the in camera hearing shall
not be used in any investigation or in any proceeding against the defendant,
and shall otherwise be kept confidential, unless and until such information is
found by the court to be subject to disclosure.
     (d) The parties may at any time stipulate
to entry of an order directing that specific information contained in an
Environmental Audit Report is or is not subject to the privilege provided under
subsection (2) of this section.
     (e) Upon making a determination under
subsection (3)(b) of this section, the court may compel the disclosure only of
those portions of an Environmental Audit Report relevant to issues in dispute
in the proceeding.
     (5) The privilege described in subsection
(2) of this section shall not extend to:
     (a) Documents, communications, data,
reports or other information required to be collected, developed, maintained,
reported or otherwise made available to a regulatory agency pursuant to ORS
824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or other
federal, state or local law, ordinance, regulation, permit or order;
     (b) Information obtained by observation,
sampling or monitoring by any regulatory agency; or
     (c) Information obtained from a source
independent of the environmental audit.
     (6) As used in this section:
     (a) “Environmental audit” means a
voluntary, internal and comprehensive evaluation of one or more facilities or
an activity at one or more facilities regulated under ORS 824.050 to 824.110 or
ORS chapter 465, 466, 468, 468A, 468B or 825, or the federal, regional or local
counterpart or extension of such statutes, or of management systems related to
such facility or activity, that is designed to identify and prevent
noncompliance and to improve compliance with such statutes. An environmental
audit may be conducted by the owner or operator, by the ownerÂ’s or operatorÂ’s
employees or by independent contractors.
     (b) “Environmental Audit Report” means a
set of documents, each labeled “Environmental Audit Report: Privileged Document”
and prepared as a result of an environmental audit. An Environmental Audit
Report may include field notes and records of observations, findings, opinions,
suggestions, conclusions, drafts, memoranda, drawings, photographs,
computer-generated or electronically recorded information, maps, charts, graphs
and surveys, provided such supporting information is collected or developed for
the primary purpose and in the course of an environmental audit. An
Environmental Audit Report, when completed, may have three components:
     (A) An audit report prepared by the
auditor, which may include the scope of the audit, the information gained in
the audit, conclusions and recommendations, together with exhibits and
appendices;
     (B) Memoranda and documents analyzing
portions or all of the audit report and potentially discussing implementation
issues; and
     (C) An implementation plan that addresses
correcting past noncompliance, improving current compliance and preventing
future noncompliance.
     (7) Nothing in this section shall limit,
waive or abrogate the scope or nature of any statutory or common law privilege,
including the work product doctrine and the attorney-client privilege. [1993
c.422 §20; 1997 c.320 §1; 2001 c.630 §1]
     Note: See note under 468.961.
     468.965 [1985 c.684 §10; 1989 c.958 §9; renumbered
468.491 in 1993]
     468.967 [1989 c.1072 §1; renumbered 459A.775 in
1991]
     468.968 [1989 c.1072 §§2,3,4; renumbered 459A.780 in
1991]
     468.969 [1989 c.1072 §5; renumbered 459A.785 in
1991]
     468.970 [1987 c.695 §1; 1989 c.958 §9; renumbered
454.430 in 1989]
     468.973 [1987 c.695 §2; renumbered 454.433 in 1989]
     468.975 [1987 c.695 §§3,11; renumbered 454.436 in
1989]
     468.977 [1987 c.695 §§4,5,8; renumbered 454.439 in
1989]
     468.980 [1987 c.695 §6; renumbered 454.442 in 1989]
     468.983 [1987 c.695 §7; renumbered 454.445 in 1989]
     468.990 [1973 c.835 §28; subsection (5) formerly
part of 448.990, enacted as 1973 c.835 §177a; 1989 c.859 §6; 1991 c.764 §7;
renumbered 468B.990 in 1991]
     468.992 [1973 c.835 §26; repealed by 1993 c.422 §35]
     468.995 [1973 c.835 §27; subsection (6) enacted as
1975 c.366 §3; 1983 c.338 §938; 1991 c.920 §20; renumbered 468A.990 in 1991]
CIVIL
PENALTIES
     468.996
Civil penalty for intentional or reckless violation; rules. (1) In addition to any other penalty
provided by law, any person who intentionally or recklessly violates any
provision of ORS 164.785, 459.205 to 459.426, 459.705 to 459.790, ORS chapters
465, 466 or 467 or 468, 468A and 468B or any rule or standard or order of the
Environmental Quality Commission adopted or issued pursuant to ORS 459.205 to
459.426, 459.705 to 459.790, ORS chapters 465, 466 or 467 or 468, 468A and
468B, which results in or creates the imminent likelihood for an extreme hazard
to the public health or which causes extensive damage to the environment shall
incur a civil penalty not to exceed $100,000. The Environmental Quality
Commission shall adopt by rule a schedule and the criteria for determining the
amount of a civil penalty that may be imposed for an extreme violation.
     (2) As used in this section:
     (a) “Intentionally” means conduct by a
person with a conscious objective to cause the result of the conduct.
     (b) “Recklessly” means conduct by a person
who is aware of and consciously disregards a substantial and unjustifiable risk
that the result will occur or that the circumstance exists. The risk must be of
such nature and degree that disregard thereof constitutes a gross deviation
from the standard of care a reasonable person would observe in that situation. [1991
c.650 §2]
     468.997
Joinder of certain offenses.
Where any provision of ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505
to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B provides
that each day of violation of ORS 448.305, 454.010 to 454.040, 454.205 to
454.255, 454.505 to 454.535, 454.605 to 454.755 or a section of ORS chapters
468, 468A and 468B constitutes a separate offense, violations of that section
that occur within the same court jurisdiction may be joined in one indictment,
or complaint, or information, in several counts. [Formerly 449.992]
_______________
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