Title15 - Enforcement Procedure And Civil Penalties

Title 15: Enforcement Procedure and Civil Penalties

1. The goals of enforcement are to:

A. Obtain and maintain compliance with the Authority's statutes, rules, permits and orders;

B. Protect the public health and the environment;

C. Deter future violators and violations; and

D. Ensure an appropriate and consistent enforcement program.

2. As required by this Title, the Authority will endeavor by conference, conciliation and persuasion to solicit compliance.

3. The Authority shall address all documented violations in order of seriousness at the most appropriate level of enforcement necessary to achieve the goals set forth in Subsection 1 of this Section.

4. Violators who do not comply with an initial enforcement action shall be subject to increasing levels of enforcement until compliance is achieved.

Section 15-003 Scope of Applicability

These amendments shall apply to violations occurring on or after the effective date of such amendments. They shall not apply to cases pending. For purposes of determining Class and Magnitude of violation, only, LRAPA rules and regulations in effect prior to these amendments shall apply to violations occurring before the effective date of these amendments. For purposes of determining number and gravity of prior violations, these amendments will apply.

Section 15-005 Definitions

Words and terms used in this title are defined as follows, unless the context requires otherwise:

• "Class I (one) Equivalent" or "Equivalent," which is used only for the purposes of determining the value of the "P" factor in the civil penalty formula, means two Class II (two) violations, one Class II and two Class III (three) violations, or three Class III violations.

• "Compliance" means meeting the requirements of the Authority's or Department's, Commission's or EPA's rules, permits or orders.

• "Documented Violation" means any violation which the Authority or other government agency records after observation, investigation or data collection.

• "Enforcement" means any documented action taken to address a violation.

• "Federal Operating Permit Program" means a program approved by the DEQ Administrator under 40 CFR Part 70 (last amended by 57 FR 32295, July 21, 1992).

• "Flagrant" means any documented violation where the respondent had actual knowledge of the law and consciously set out to commit the violation.

• "Formal Enforcement Action" means an administrative action signed by the Director or authorized representative which is issued to a respondent for a documented violation. A formal enforcement action may require the respondent to take specific action within a specified time frame and/or state the consequences for continued non-compliance.

• "Intentional," means conduct by a person with a conscious objective to cause the result of the conduct.

• "Magnitude of the Violation" means the extent of a violator's deviation from federal, state and the Authority's statutes, rules, standards, permits or orders. In determining magnitude, the Authority shall consider available information, including such factors as concentration, volume, percentage, duration, toxicity, and the extent of the effects of the violation. In any case, the Authority may consider any single factor to be conclusive. Deviations shall be categorized as major, moderate or minor.

• "Negligence" or "negligent" means failing to take reasonable care to avoid a foreseeable risk of committing an act or omission constituting a violation.

• "Order" means:
  A. Any action satisfying the definition given in ORS Chapter 183; or
  B. Any other action so designated in ORS Chapter 468 or 468.A.

• "Person" means any individual, public or private corporation, political subdivision, agency, board, department, or bureau of the state, municipality, partnership, association, firm, trust, estate, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties.

• "Prior Violation" means any violation established, with or without admission, by payment of a civil penalty, by an order of default, or by a stipulated or final order of the Authority.

• "Reckless" or "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 a nature and degree that disregard thereof constitutes a gross deviation from the standard of care a reasonable person would observe in that situation.

• "Respondent" means the person to whom a formal enforcement action is issued.

• "Risk of Harm" means the level of risk to public health or the environment created by the likelihood of exposure, either individual or cumulative, or the actual damage, either individual or cumulative, caused by a violation.

• "Violation" means a transgression of any statute, rule, order, license, permit, or any part thereof, and includes both acts and omissions. Violations shall be classed according to risk of harm as follows:
  
  A. "Class I (one)" means any violation which poses a major risk of harm to public health or the environment, or violation of any compliance schedule contained in an agency permit or board order;
  
  B. "Class II (two)" means any violation which poses a moderate risk of harm to public health or the environment;
  
  C. "Class III (three)" means any violation which poses a minor risk of harm to public health or the environment.

Notwithstanding that each and every violation is a separate and distinct offense and that, in cases of continuing violation, each day's continuance is a separate and distinct violation, proceedings for the assessment of multiple civil penalties for multiple violations may be consolidated into a single proceeding.

Section 15-015 Notice of Violation

When the Director or the Board has cause to believe that a violation has occurred, the Director or authorized representative may document the violation and initiate any of the enforcement actions described in Subsections 15-018 and 15-020 by serving the appropriate notice to the responsible party or respondent according to ORS 183 and these rules and regulations. Cause to believe a violation has occurred can be prima facie evidence based on first-hand observations, reports of observations by citizens or government officials, results of tests, instrument reading or any other evidence which the Director finds, in his discretion, to be sufficient to constitute cause to believe.

Section 15-018 Notice of Permit Violations and Exceptions

1. Prior to assessment of a civil penalty for a violation of the terms or conditions of an Air Contaminant Discharge Permit, the Authority shall provide a Notice of Permit Violation to the permittee. The Notice of Permit Violation shall be in writing, specifying the violation and stating that a civil penalty will be imposed for the permit violation unless the permittee submits one of the following to the Authority within five (5) working days of receipt of the Notice of Permit Violation:

A. A written response from the permittee acceptable to the Authority certifying that the permitted facility is complying with all terms of the permit from which the violation is cited. The certification shall include a sufficient description of the information on which the permittee is certifying compliance to enable the Authority to determine that compliance has been achieved.

B. A written proposal, acceptable to the Authority, to bring the facility into compliance with the permit. An acceptable proposal under this rule shall include at least the following:

(1) Proposed compliance dates;

(2) Proposed date to submit a detailed compliance schedule;

(3) A description of the interim steps that will be taken to reduce the impact of the permit violation until the permitted facility is in compliance with the permit;

(4) A statement that the permittee has reviewed all other conditions and limitations of the permit, and no other violations of the permit were discovered by the permittee.

C. In the event that any compliance schedule to be approved by the Authority, pursuant to Subsection 1.B of this Section, provides for a compliance period of greater than six (6) months, the Authority shall incorporate the compliance schedule into an Order described in LRAPA subsection 15-020-4.A which provides for stipulated penalties in the event of any non-compliance therewith. Stipulated penalties shall not apply to circumstances beyond the reasonable control of the permittee. Stipulated penalties may also be required for compliance periods of less than or equal to six (6) months. The stipulated penalties shall be set at amounts consistent with those established under LRAPA Section 15-045.

D. The certification allowed in Subsection 1.A of this Section shall be signed by a Responsible Official, based on information and belief after making reasonable inquiry. For purposes of this rule, "Responsible Official" of the permitted facility means one of the following:

(1) For a corporation, a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy- or decision-making functions for the corporation; or the manager of one or more manufacturing, production, or operating facilities, if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

(2) For a partnership or sole proprietorship, a general partner or the proprietor, respectively.

(3) For a municipality, state, federal, or other public agency, either a principal executive officer or appropriate elected official.

2. No advance notice prior to assessment of a civil penalty shall be required under Subsection 1 of this Section, and the Authority may issue a Notice of Civil Penalty Assessment, without any preconditions, if:

A. The violation is intentional;

B. The violation would not normally occur for five consecutive days;

C. The permittee has received a Notice of Permit Violation or other formal enforcement action with respect to any violation of the permit within 36 (thirty-six) months immediately preceding the documented violation;

D. The permittee is subject to the Federal Operating Permit Program under ORS 468.A-300 to 468.A-320, OAR 340 Divisions 28 and 32, and violates any rule or standard adopted or permit and/or order issued under ORS 468.A and applicable to the permittee;

E. If EPA notifies the Department that the advance notice provision of ORS 468.126 would disqualify a program from federal approval or delegation; or

F. The permittee has an Air Contaminant Discharge Permit and violates any State Implementation Plan requirement contained in the permit.

For purposes of this Section, "permit" includes permit renewals and modifications, and no such renewal or modification shall result in the requirement that the Authority provide the permittee with an additional advance warning if the permittee has received a Notice of Permit Violation or other formal enforcement action with respect to the permit within 36 (thirty-six) months.

Section 15-020 Enforcement Actions

1. Notice of Non-compliance (NON):

A. Informs a person of a violation and the consequences of the violation or continued non-compliance. The notice may state the actions required to resolve the violation and may specify a time by which compliance is to be achieved. The notice may state that further enforcement action may, or will be taken.

B. Shall be issued under the direction of the Director or authorized representative.

C. Shall be issued for, but is not limited to, all classes of documented violations.

D. May be issued prior to issuance of a Notice of Civil Penalty or an Order.

2. Notice of Permit Violation (NPV):

A. Is issued pursuant to Section 15-018.

B. Shall be issued by the Director or authorized representative.

C. Shall be issued for, but is not limited to, the first occurrence of a documented Class I permit violation which is not excepted under Subsection 15-018-2, or the repeated or continuing occurrence of documented Class II or III permit violations not excepted under subsection 15-018-2, or where a NON has failed to achieve compliance or satisfactory progress toward compliance. A permittee shall not receive more than three NONs for Class II violations of the same permit within a 36 (thirty-six)-month period without being issued an NPV.

3. Notice of Civil Penalty Assessment (CPA):

A. Is issued pursuant to ORS 468.130, ORS 468.140, and LRAPA Sections 15-015, 15-025 and 15-030.

B. Shall be issued by the Director or authorized representative.

C. May be issued for, but is not limited to, the occurrence of any class of documented violation that is not limited by the NPV requirement of LRAPA Section 15-018.

4. Order:

A. Is issued pursuant to ORS Chapters 183, 468,or 468A, and LRAPA Title 14.

B. May be in the form of a Board or Director Order or a Stipulation and Final Order (SFO).

(1) Board Orders shall be issued by the Board, or by the Director on behalf of the Board.

(2) Director Orders shall be issued by the Director or authorized representative.

(3) All Other Orders:

(a) May be negotiated;

(b) Shall be signed by the Director or authorized representative and the authorized representative of each other party.

C. May be issued for any class of violations.

5. The enforcement actions described in Subsections 1 through 4 of this Section shall not limit the Director or Board from seeking legal or equitable remedies as provided by ORS Chapters 468 and 468A.

Section 15-025 Civil Penalty Schedule Matrices

1. In addition to any liability, duty or other penalty provided by law, the Director may assess a civil penalty for any violation pertaining to the Board's and Director's authorizing rules, regulations, permits or orders by service of a written Notice of Civil Penalty Assessment upon the Respondent. Except for civil penalties assessed under LRAPA 15-045 and 15-050 (stipulated or intentional/reckless), or Title 16, the amount of any civil penalty shall be determined through the use of the following matrices, in conjunction with the formula contained in Section 15-030:

A. $10,000 Matrix

	$10,000 Matrix - Magnitude of Violation
Class of Violation	Major	Moderate	Minor
Class I	$6,000	$3,000	$1,000
Class II	$2,000	$1,000	$500
Class III	$500	$250	$100

No civil penalty issued by the Director pursuant to the $10,000 matrix shall be less than fifty dollars ($50) or more than ten thousand dollars ($10,000) for each day of each violation. This matrix shall apply to any violation related to air quality statutes, rules, permits or orders, except for the selected open burning violations listed in Subsection 1.B, below.

B. $2,500 Matrix

	$2,500 Matrix - Magnitude of Violation
Class of Violation	Major	Moderate	Minor
Class I	$2,500	$1,000	$500
Class II	$750	$500	$200
Class III	$250	$100	$50

No civil penalty issued by the Director pursuant to the $2,500 matrix shall be less than fifty dollars ($50). The total penalty may exceed twenty-five hundred dollars ($2,500) for each day of each violation, but shall not exceed ten thousand dollars ($10,000) for each day of each violation.

The $2,500 matrix shall be applied to any violation related to violations of the Authority's Title 47 open burning rules, excluding all industrial open burning violations and violations of Section 47-015-1.E, where the volume of the prohibited materials burned is greater than or equal to twenty-five cubic yards. In cases of the open burning of tires, this matrix shall apply only if the number of tires burned is less than fifteen (15). The matrix set forth in Subsection 1A, above, shall be applied to all open burning violations not covered by this Subsection.

  Section 15-030 Civil Penalty Determination Procedure (Mitigating and Aggravating Factors)

1. When determining the amount of civil penalty to be assessed for any violation, other than violations of LRAPA Title 16 which are determined in Title 16, and of ORS 468.996 which are determined according to the procedure set forth below in Section 15-050, the Director or authorized representative shall apply the following procedures:

A. Determine the class and the magnitude of each violation.

B. Choose the appropriate base penalty (BP) established by the matrices of Section 15-025 after determining the class and magnitude of each violation.

C. Starting with the base penalty (BP), determine the amount of penalty through application of the formula:

BP + [(.1 x BP)(P + H + O + R + C)] + EB where:

(1) "P" is whether the Respondent has any prior violations of statutes, rules, orders and permits pertaining to environmental quality or pollution control. For the purpose of determining "P," Class I equivalent or equivalent means two Class II violations, one Class II and two Class III violations, or three Class III violations. The values for "P" and the finding which supports each are as follows:

(a) 0 if no prior violations or there is insufficient information on which to base a finding;

(b) 1 if the prior violation is one Class II or two Class III's;

(c) 2 if the prior violation(s) are one Class I or equivalent;

(d) 3 if the prior violations are two Class I's or equivalent;

(e) 4 if the prior violations are three Class I's or equivalents;

(f) 5 if the prior violations are four Class I's or equivalents;

(g) 6 if the prior violations are five Class I's or equivalents;

(h) 7 if the prior violations are six Class I's or equivalents;

(i) 8 if the prior violations are seven Class I's or equivalents;

(j) 9 if the prior violations are eight Class I's or equivalents;

(k) 10 if the prior violations are nine or more class I's or equivalents, or if any of the prior violations were issued for any violation of ORS 468.996 (Civil Penalty for Intentional or Reckless Violation).

(l) In determining the appropriate value for prior violations as listed above, the Authority shall reduce the appropriate factor by:

(i) A value of one(1) if the number of prior violations in a particular class falls between corresponding factors;

(ii) A value of two (2) if all the prior violations are greater than three years old but less than five years old;

(iii) A value of four (4) if all the prior violations are greater than five years old;

(iv) In making the above reductions, the value of P shall not be less than 0.

(m) Any prior violation which occurred more than ten (10) years prior to the time of the present violation shall not be included in the above determination.

(2) "H" is past history of the Respondent in taking all feasible steps or procedures necessary or appropriate to correct any prior violations. In no case shall the combination of the "P" factor and the "H" factor be a value less than zero. In such cases where the sum of the "P" and "H" values is a negative numeral, the finding and determination for the combination of these two factors shall be zero. The values for "H" and the finding which supports each are as follows:

(a) -2 if Respondent took all feasible steps to correct each prior violation;

(b) 0 if there is no prior history or if there is insufficient information on which to base a finding;

(c) 2 if the Respondent took no feasible steps to correct each prior violation.

(3) "O" is whether the violation was repeated or continuous. The values for "O" and the finding which supports each are as follows:

(a) 0 if the violation existed for one day or less and did nor recur on the same day;

(b) 2 if the violation recurred on the same day. If the violation occurred on more than one day, and multiple day penalties are determined, "O" shall be 0.

(4) "R" is whether the violation resulted from an unavoidable accident, or a negligent, intentional or flagrant act of the Respondent. The values for "R" and the finding which supports each are as follows:

(a) 0 if an unavoidable accident or there is insufficient information to make any other finding;

(b) 2 if negligent;

(c) 6 if intentional; or

(d) 10 if flagrant.

(5) "C" is the Respondent's cooperativeness and efforts to correct the violation. The values for "C" and the finding which supports each are as follows:

(a) -2 if Respondent was cooperative and took reasonable efforts to correct the violation or minimize the effects of the violation;

(b) 0 if there is insufficient information to make a finding, or if the violation or the effects of the violation could not be corrected;

(c) 2 if Respondent was uncooperative and did not take reasonable efforts to correct the violation or minimize the effects of the violation.

(6) "EB" is the approximated dollar sum of the economic benefit that the Respondent gained through noncompliance. The Director or Board may increase the penalty by the approximated dollar sum of the economic benefit, provided that the sum penalty does not exceed the maximum allowed for the violation by rule or statute. After determining the base penalty and applying the civil penalty formula above to determine the gravity portion of the civil penalty, "EB" is to be determined as follows:

(a) Add to the formula the approximate dollar sum of the economic benefit gained through noncompliance, as calculated by determining both avoided costs and the benefits obtained through any delayed costs, where applicable.

(b) In determining the economic benefit component of a civil penalty, the Authority may use the U. S. Environmental Protection Agency's BEN computer model, as adjusted annually to reflect changes in marginal tax rates, inflation rate and discount rate. With respect to significant or substantial change in the model, the Authority shall use the version of the model that the Authority finds will most accurately calculate the economic benefit gained by Respondent's noncompliance. Upon request of the Respondent, the Authority will provide Respondent the name of the version of the model used and respond to any reasonable request for information about the content or operation of the model. The model's standard values for income tax rates, inflation rate and discount rate shall be presumed to apply to all Respondents unless a specific Respondent can demonstrate that the standard value does not reflect that Respondent's actual circumstance.

(c) As stated above, under no circumstances shall the imposition of the economic benefit component of the penalty result in a penalty exceeding the statutory maximum allowed for the violation by rule or statute. When a violation has extended over more than one calendar day, however, for determining the maximum penalty allowed, the Director may treat the violation as extending over at least as many days as necessary to recover the economic benefit of noncompliance. When the purpose of treating a violation as extending over more than one calendar day is to recover the economic benefit, the Director has the discretion not to impose the gravity and/or magnitude-based portion of the penalty for more than one day.

2. In addition to the factors listed in Subsection 1 of this Section, the Director may consider any other relevant rule of the Authority and shall state the effect the consideration had on the penalty. On review, the Board or hearings officer shall consider the factors contained in Subsection 1 of this Section and any other relevant rule of the Authority.

3. The Director or Board may reduce any penalty based on the Respondent's inability to pay the full penalty amount. If the Respondent seeks to reduce the penalty, the Respondent has the responsibility of providing to the Director or Board documentary evidence concerning Respondent's inability to pay the full penalty amount.

A. When the Respondent is currently unable to pay the full amount, the first option should be to place the Respondent on a payment schedule with interest on the unpaid balance for any delayed payments. The Director or Board may reduce the penalty only after determining that the Respondent is unable to meet a long-term payment schedule.

B. In determining the Respondent's ability to pay a civil penalty, the Authority may use the U. S. Environmental Protection Agency's ABEL computer model to determine a Respondent's ability to pay the full civil penalty amount. With respect to significant or substantial change in the model, the Authority shall use the version of the model that the Authority finds will most accurately calculate the Respondent's ability to pay a civil penalty. Upon request of the Respondent, the Authority will provide Respondent the name of the version of the model used and respond to any reasonable request for information about the content or operation of the model.

C. In appropriate circumstances, the Director or Board may impose a penalty that may result in a Respondent going out of business. Such circumstances may include situations where the violation is intentional or flagrant or situations where the Respondent's financial condition poses a serious concern regarding its ability or incentive to remain in compliance.

Section 15-035 Written Notice of Civil Penalty Assessment--When Penalty Payable

1. A civil penalty shall be due and payable ten (10) days after the order assessing the civil penalty becomes final and the civil penalty is thereby imposed by operation of law or on appeal. A person against whom a civil penalty is assessed shall be served with a notice in the form and manner provided in ORS 183.415 and LRAPA Section 14-170.

2. The written Notice of Civil Penalty Assessment shall comply with ORS 468.135(1) and ORS 183.090, relating to notice and contested case hearing applications, and shall state the amount of the penalty or penalties assessed.

3. The rules prescribing procedure in contested case proceedings contained in LRAPA Title 14 shall apply thereafter.

  Section 15-040 Compromise or Settlement of Civil Penalty by Director

1. Any time after service of the written Notice of Civil Penalty Assessment, the Board or Director may, in their discretion, compromise or settle any unpaid civil penalty at any amount that the Board or Director deems appropriate. A refusal to compromise or settle shall not be subject to review. Any compromise or settlement executed by the Director shall be final, except for major Class I violations with penalties calculated under 15-025-1.A, which must be approved by the board.

2. In determining whether a penalty should be compromised or settled, the Board or Director may take into account the following:

A. New information obtained through further investigation or provided by Respondent which relates to the penalty determination factors contained in LRAPA Section 15-030.

B. The effect of compromise or settlement on deterrence;

C. Whether Respondent has or is willing to employ extraordinary means to correct the violation or maintain compliance;

D. Whether Respondent has had any previous penalties which have been compromised or settled;

E. Whether the compromise or settlement would be consistent with the Authority's goal of protecting the public health and environment;

F. The relative strength or weakness of the Authority's case.

Section 15-045 Stipulated Penalties

Nothing in Title 15 shall affect the ability of the Board or Director to include stipulated penalties in a Stipulation and Final Order, Consent Order, Consent Decree or any other agreement issued pursuant to ORS Chapter 468, 468.A or these rules and regulations.

  Section 15-050 Additional Civil Penalties

In addition to any other penalty provided by law, the following violations are subject to the civil penalties specified below.

Any person who intentionally or recklessly violates any provision of ORS 468, 468A, or any rule or standard or order of the Director or Board 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 penalty up to $100,000. When determining the civil penalty sum to be assessed under this section, the Director shall apply the following procedures.

1. The base penalties listed in 15-050-2 are to be used in lieu of the penalty method in 15-025-1.A and B.

2. Select one of the following base penalties after determining the cause of the violation:

A. $50,000 if the violation was caused recklessly;

B. $75,000 if the violation was caused intentionally;

C. $100,000 is the violation was caused flagrantly.

3. Then determine the civil penalty through application of the formula:

BP + (.1 x BP)(P + H + O + C) + EB, in accordance with the applicable subsections of Section 15-030

Section 15-055 Air Quality Classification of Violation

Violations pertaining to air quality shall be classified as follows:

1. Class I (One)

A. Violating conditions or terms of an order or variance;

B. Violating a compliance schedule or condition in a permit (except as defined in 15-055-3.B);

C. Exceeding an emission or opacity permit limitation for a criteria pollutant, by a factor of greater than or equal to two (2) times the limitation, within ten (10) kilometers of either a Non-Attainment Area or a Class I Area for that criteria pollutant (if greater than 10 kilometers from either a Non-Attainment Area or a Class I Area, see 15-055-2.C);

D. Exceeding the annual emission limitations of a permit, rule or order;

F. Exceeding operating restrictions which limit a synthetic minor source's potential to emit and which result in emissions above the thresholds which define a major source, under the Federal Operating Permit program, pursuant to 340-28-110(57);

G. Causing emissions that are potentially a hazard to public health and welfare;

H. Failure to comply with Emergency Action Plans or allowing excessive emissions during emergency episodes;

I. Constructing or operating a source without a valid Air Contaminant Discharge Permit and/or Federal Operating Permit;

J. Modifying a source with an Air Contaminant Discharge Permit and/or Federal Operating Permit without first notifying and receiving approval from the Authority;

K. Failing to perform testing, monitoring, or record keeping required by a permit, rule or order;

L. Failing to submit semi-annual compliance certifications;

M. Failing to file a timely application for a Federal Operating Permit pursuant toOAR 340-28-2120;

N. Violating a work practice requirement for asbestos abatement projects which causes a potential for public exposure to asbestos or release of asbestos into the environment;

O. Storing or accumulating friable asbestos material or asbestos-containing waste material from an asbestos abatement project which causes a potential for public exposure to asbestos or release of asbestos into the environment;

P. Visible emissions of asbestos during an asbestos abatement project or during collection, processing, packaging, transportation or disposal of asbestos-containing waste material;

Q. Conduct of an asbestos abatement project by a person not licensed as an asbestos abatement contractor;

R. Violating a disposal requirement for asbestos-containing waste material which causes a potential for public exposure to asbestos or release of asbestos into the environment;

S. Illegal open burning of materials prohibited by Subsection 47-015-1.E;

T. Failing to provide access to premises or records when required by law, rule, permit or order;

U. Submitting falsified actual or calculated emission data;

V. Any other violation related to air quality which causes a major harm or poses a major risk of harm to public health or the environment.

2. Class II (Two)

A. Violating standards in permits or rules for fugitive dust, particulate deposition or odors;

B. Illegal open burning of commercial, construction and/or demolition waste;

C. Exceeding emission limitations or opacity limitations in permits or air quality regulations by more than 5 percent (if within 10 kilometers of either a Non-Attainment Area or a Class I Area, see 15-055-1.C);

D. Failing to report excess emissions due to upset or breakdown of air pollution control equipment;

E. Violation of a work practice requirement for asbestos abatement projects which are not likely to result in public exposure to asbestos or release of asbestos into the environment;

F. Under-reporting of the amount of asbestos involved in an asbestos abatement project;

G. Improper storage of friable asbestos material or asbestos-containing waste material from an asbestos abatement project which is not likely to result in public exposure to asbestos or release of asbestos into the environment;

H. Violation of a disposal requirement for asbestos-containing waste material which is not likely to result in public exposure to asbestos or release of asbestos to the environment;

I. Failure to comply with asbestos abatement licensing, certification, or accreditation requirements;

J. Failure to provide notification of an asbestos abatement project;

K. Operating a vapor recovery system without first obtaining a piping test performed by a licensed service provider as required by Chapter 340, Division 160;

L. Any other violation related to air quality which poses a moderate risk of harm to public health or the environment.

M. Failing to submit a complete Air Contaminant Discharge Permit application 60 (sixty) days prior to permit expiration or prior to modifying a source;

N. Exceeding operating restrictions which limit a synthetic minor source's potential to emit, but which does not result in emissions above the thresholds which define a major source, under the Federal Operating Permit program, pursuant to OAR 340-28-110(57);

O. Failure to pay a fee required by the Federal Operating Permit Program.

P. Substantial underpayment of a fee required by the Federal Operating Permit Program.

Q. Submitting inaccurate actual or calculated emission data.

R. Installing, servicing, repairing, disposing of or otherwise treating automobile air conditioners without recovering and recycling chlorofluorocarbons using approved recovery and recycling equipment;

S. Selling, or offering to sell, or giving as a sales inducement any aerosol spray product which contains as a propellant any compound prohibited under ORS 468A.655;

T. Selling any chlorofluorocarbon- or halon-containing product prohibited under ORS 468A.635.

3. Class III (Three)

A. Failing to file a Notice of Construction;

B. Failing to report as a condition of a rule, compliance order or permit;

C. Improper notification of an asbestos abatement project;

D. Illegal residential open burning;

E. Any other violation related to air quality which poses a minor risk of harm to public health or the environment.

Section 15-060 Selected Magnitude Categories

Magnitudes for selected violations may be determined as follows:

1. Opacity limitation violations:

A. Major--opacity measurements or readings of more than 25 percent opacity over the applicable limitation;

B. Moderate--opacity measurements or readings from greater than 10 percent to 25 percent or less opacity over the applicable limitation;

C. Minor--opacity measurements or readings of 10 percent or less opacity over the applicable limitation.

2. Steaming rates and fuel usage limitations:

A. Major--greater than 1.3 times any applicable limitation;

B. Moderate--from 1.1 to and including 1.3 times any applicable limitation;

C. Minor--less than 1.1 times any applicable limitation.

3. Magnitude determinations for Air Contaminant Discharge Permit emission limitation violations for selected air pollutants shall be made based upon the following table:

POLLUTANT	AMOUNT
Carbon Monoxide	100 tons
Nitrogen Oxides	40 tons
Particulate Matter   A. TSP   B. PM10	5 tons 5 tons
Sulfur Dioxide	40 tons
Volatile Organic Compounds	40 tons
Lead	1200 lbs.
Mercury	200 lbs.
Beryllium	0.8 lbs
Asbestos	14 lbs.
Vinyl Chloride	1 ton
Fluorides	3 tons
Sulfuric Acid Mist	7 tons
Hydrogen Sulfide	10 tons
Total Reduced Sulfur (including hydrogen sulfide)	10 tons
Reduced Sulfur Compounds (including hydrogen sulfide)	10 tons

A. Major:

(1) Exceeding the annual amount, as established by permit, rule or order, by more than the above amount;

(2) Exceeding the monthly amount, as established by permit, rule or order, by more than 10 percent of the above amount;

(3) Exceeding the daily amount, as established by permit, rule or order, by more than 0.5 percent of the above amount;

(4) Exceeding the hourly amount, as established by permit, rule or order, by more than 0.1 percent of the above amount.

B. Moderate:

(1) Exceeding the annual amount, as established by permit, rule or order, by an amount from 50 up to and including 100 percent of the above amount;

(2) Exceeding the monthly amount, as established by permit, rule or order, by an amount from 5 up to and including 10 percent of the above amount;

(3) Exceeding the daily amount, as established by permit, rule or order, by an amount from 0.25 up to and including 0.50 percent of the above amount;

(4) Exceeding the hourly amount, as established by permit, rule or order, by an amount from 0.05 up to and including 0.10 percent of the above amount.

C. Minor:

(1) Exceeding the annual amount, as established by permit, rule or order, by an amount from 5 up to and including 50 percent of the above amount;

(2) Exceeding the monthly amount, as established by permit, rule or order, by an amount from 0.25 up to and including 5 percent of the above amount;

(3) Exceeding the daily amount, as established by permit, rule or order, by an amount from 0.05 up to and including 0.25 percent of the above amount;

(4) Exceeding the hourly amount, as established by permit, rule or order, by an amount of 0.05 percent or less of the above amount.

4. Hazardous Air Pollutant violations:

A. Major--exceeding the applicable emissions limit by two (2) times the de minimus rate;

B. Moderate--exceeding the applicable emissions limit by one and a half (1-1/2) up to two (2) times the de minimus rate;

C. Minor--exceeding the applicable emissions limit by less than one and a half (1-1/2) times the de minimus rate.

5. Federal Operating Permit Program violations:

A. Major--missing filing deadline by thirty (30) calendar days or more; filing false or misleading information in application;

B. Moderate--missing filing deadline by seven (7) to twenty-nine (29) calendar days;

C. Minor--missing filing deadline by less than seven (7) calendar days.

6. Asbestos violations:

A. Major--more than 260 lineal feet or more than 160 square feet or more than 35 cubic feet of asbestos-containing material;

B. Moderate--from 40 lineal feet up to and including 260 lineal feet or from 80 square feet up to and including 160 square feet or from 17 cubic feet up to and including 35 cubic feet of asbestos-containing material;

C. Minor--less than 40 lineal feet or 80 square feet or less than 17 cubic feet of asbestos-containing material.

D. The magnitude of the asbestos violation may be increased by one level if the material was comprised of more than 5 percent asbestos.

7. Asbestos air clearance violations:

A. Major--more than .1 fibers per cubic centimeter;

B. Moderate--more than .05 fibers per cubic centimeter up to and including .1 fibers per cubic centimeter;

C. Minor--more than .01 fibers per cubic centimeter up to and including .05 fibers per cubic centimeter.

8. Open burning violations:

A. Major--open burning of material constituting more than 5 cubic yards in volume;

B. Moderate--open burning of material constituting from 1 up to and including 5 cubic yards in volume;

C. Minor--open burning of material constituting less than 1 cubic yard in volume. Section 15-065 Appeals

1. Any person who is issued a corrective action order or who is assessed with a civil penalty under Title 15 may appeal such order or penalty to the Authority within twenty-one (21) days of the date of mailing of the notice. The hearing and appeal shall be conducted according to Title 14 of these rules.

2. In reviewing the order or the penalty assessed by the Director, the Hearings Officer shall consider the factors set forth in Section 15-030, the findings of the Director and the evidence and argument presented at the hearing. The Hearings Officer shall make findings as to those factors deemed to be significant.

3. Unless the issue is raised in respondent's answer to the order or notice of assessment of civil penalty, the Hearings Officer may presume that the economic and financial conditions of respondent would allow imposition of the penalty assessed by the Director. At the hearing, the burden of proof and the burden of coming forward with evidence regarding the respondent's economic and financial condition shall be upon the respondent.

4. If a timely request for a hearing is not received by the Authority, the Director may issue a final order upon default based upon a prima facie case as provided in Sections 14-175.4.C and 14-205.2. If the penalty is not paid within ten (10) days of issuance of the final order, the order shall constitute a judgement and may be filed as provided in ORS 468.135(4).