The Department must determine the classification of a violation based upon severity and considering the guidelines in this rule. The Department may issue a notice of violation for Class I or Class II violations. The Department may, if special circumstances warrant, determine a classification at variance from the guidelines listed below:

1. (1) In general, the following violations are classified as Class II violations:

   1. (a) Violation of a term or condition of a site certificate;
   2. (b) Violation of an order of the Council;
   3. (c) Violation of any applicable rule in divisions 22 through 27 of this chapter;
   4. (d) Violation of a Department of Energy order as described in OAR 345-027-0230; or
   5. (e) Violation of any applicable provision of ORS Chapter 469.

2. (2) In general, the Department may escalate any Class II violation to a Class I violation. Factors the Department may consider in escalating a Class II violation to Class I include whether the responsible party reported the conditions or circumstances of the violation, the duration of the violation, whether the responsible party implemented prompt and effective corrective actions, the impact on public health and safety or on resources protected by Council standards, and the past performance of the responsible party. To escalate a violation to Class I, the Department must find that the violation meets one of the following criteria:

   1. (a) It is a repeated violation. The Department must consider whether the successive violation could reasonably have been prevented by the responsible party by taking appropriate corrective actions for a prior violation;
   2. (b) It resulted from the same underlying cause or problem as a prior violation;
   3. (c) It is a willful violation; or
   4. (d) The violation results in a significant adverse impact on the health and safety of the public or on the environment.

Statutory/Other Authority

ORS 469.470

Statutes/Other Implemented

ORS 469.085, 469.440 & 469.992

History

EFSC 1-2021, amend filed 02/26/2021, effective 02/26/2021
EFSC 1-2007, f. & cert. ef. 5-15-07
EFSC 1-2000, f. & cert. ef. 2-2-00
EFSC 2-1999, f. & cert. ef. 4-14-99
EFSC 3-1995, f. & cert. ef. 11-16-95
EFSC 1-1995, f. & cert. ef. 5-15-95
EFSC 5-1994, f. & cert. ef. 11-30-94