Bill Text: OR SB941 | 2011 | Regular Session | Engrossed
Bill Title: Relating to the environment; declaring an emergency.
Spectrum: Committee Bill
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB941 Detail]
Download: Oregon-2011-SB941-Engrossed.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2507
A-Engrossed
Senate Bill 941
Ordered by the Senate April 28
Including Senate Amendments dated April 28
Sponsored by COMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Modifies provisions related to imposition of civil penalties by
{ - Water Resources Commission, Department of State Lands, State
Department of Fish and Wildlife, State Department of Geology and
Mineral Industries, Parks and Recreation Department, State
Department of Energy and Department of Environmental Quality - }
{ + Department of State Lands, State Parks and Recreation
Department, Department of Environmental Quality, State Department
of Energy, State Department of Fish and Wildlife, State
Department of Geology and Mineral Industries, State Forestry
Department, Water Resources Department and State Department of
Agriculture + }. Dedicates certain penalties to Department of
Justice Protection and Education Revolving Account.
{ - Repeals provision requiring notice of violation related
to sewage. - }
{ - Modifies definition of 'generator' for purposes of laws
related to hazardous waste. - }
Requires that fine imposed in certain environmental crimes
cases be in form of { - compensatory fine - } { +
restitution + }. Directs court to forward { - compensatory
fine - } { + restitution + } payments to Department of Justice
for deposit in Department of Justice Protection and Education
Revolving Account. Modifies scope of phrase 'state and federal
environmental laws' for purposes of account.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the environment; creating new provisions; amending
ORS 137.103, 137.106, 137.295, 144.275, 180.095, 196.890,
196.895, 390.663, 390.669, 390.674, 390.925, 390.986, 390.992,
419A.004, 468.090, 468.100, 468.135, 468.140, 469.085, 469.563,
496.303, 517.880, 517.992, 520.175, 522.810, 561.280, 568.933,
634.905 and 634.925; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
DEPARTMENT OF JUSTICE PROTECTION AND + }
{ +
EDUCATION REVOLVING ACCOUNT, RESTITUTION, + }
{ +
AND CATEGORIES OF MONETARY OBLIGATIONS + }
SECTION 1. ORS 180.095 is amended to read:
180.095. (1) The Department of Justice Protection and Education
Revolving Account is created in the General Fund. All moneys in
the account are continuously appropriated to the Department of
Justice and may be used to pay for only the following activities:
(a) Restitution and refunds in proceedings described in
paragraph (c) of this subsection;
(b) Consumer and business education relating to the laws
governing antitrust, unlawful trade practices and the
environment; and
(c) Personal services, travel, meals, lodging and all other
costs and expenses incurred by the department in investigating,
preparing, commencing and prosecuting the following actions and
suits, and enforcing judgments, settlements, compromises and
assurances of voluntary compliance arising out of the following
actions and suits:
(A) Actions and suits under the state and federal antitrust
laws;
(B) Actions and suits under ORS 646.605 to 646.656;
(C) Criminal prosecutions under state { - and - }
{ + or + } federal environmental laws { + , including but not
limited to prosecutions for conduct made criminal under ORS
164.775, 164.785, 164.805, 273.990, 274.990, 390.995, 448.992,
448.994, 453.990, 459.992, 466.995, 467.990, 468.922, 468.926,
468.929, 468.931, 468.936, 468.939, 468.943, 468.946, 468.951,
468.953, 468.956, 468A.595, 468A.655, 468A.990, 496.992, 498.222,
506.991, 517.990, 520.991, 522.990, 526.990, 527.990, 537.990,
540.990, 561.990 (2), 564.994, 596.990, 600.990, 609.992,
634.992, 783.990 (8) and 824.992 (7) and (8) + };
(D) Actions commenced under ORS 59.331; { - and - }
(E) Actions and suits under ORS 180.750 to 180.785 { - . - }
{ + ; and
(F) Civil actions under state or federal environmental laws,
including but not limited to actions under ORS 196.870, 196.895,
390.663 (1)(f) and (6), 390.674, 390.925, 390.986, 390.992 (2),
468.090, 468.100, 468.135, 469.085, 469.563, 506.995, 509.910,
517.880 (3), 517.992, 520.175, 522.810, 561.191, 568.933 (8) and
634.905 and sections 20, 22, 28 and 30 of this 2011 Act and
actions under ORS 561.280 that seek to enjoin the violation of
ORS 634.372 or the violation of rules adopted pursuant to ORS
568.912. + }
(2) Moneys in the Department of Justice Protection and
Education Revolving Account are not subject to allotment. Upon
request of the Attorney General, the State Treasurer shall create
subaccounts within the account for the purposes of managing
moneys in the account and allocating those moneys to the
activities described in subsection (1) of this section.
(3) Except as otherwise provided by law, all sums of money
received by the Department of Justice under a judgment,
settlement, compromise or assurance of voluntary compliance,
including damages, restitution, refunds, attorney fees, costs,
disbursements { + , penalties + } and other recoveries, but
excluding civil penalties under ORS 646.642, in proceedings
described in subsection (1)(c) of this section shall, upon
receipt, be deposited with the State Treasurer to the credit of
the Department of Justice Protection and Education Revolving
Account. However, if the action or suit was based on an
expenditure or loss from a public body or a dedicated fund, the
amount of such expenditure or loss, after deduction of attorney
fees and expenses awarded to the department by the court or
agreed to by the parties, if any, shall be credited to the public
body or dedicated fund and the remainder thereof credited to the
Department of Justice Protection and Education Revolving Account.
(4) If the Department of Justice recovers restitution or
refunds in a proceeding described in subsection (1)(c) of this
section, and the department cannot determine the persons to whom
the restitution or refunds should be paid or the amount of the
restitution or refund payable to individual claimants is de
minimis, the restitution or refunds may not be deposited in the
Department of Justice Protection and Education Revolving Account
and shall be deposited in the General Fund.
(5) Before April 1 of each odd-numbered year, the Department of
Justice shall report to the Joint Committee on Ways and Means:
(a) The department's projection of the balance in the
Department of Justice Protection and Education Revolving Account
at the end of the biennium in which the report is made and at the
end of the following biennium;
(b) The amount of the balance held for restitution and refunds;
and
(c) An estimate of the department's anticipated costs and
expenses under subsection (1)(b) and (c) of this section for the
biennium in which the report is made and for the following
biennium.
(6) The Joint Committee on Ways and Means, after consideration
of recommendations made by the Department of Justice, shall use
the information reported under subsection (5) of this section to
determine an appropriate balance for the revolving account.
SECTION 2. ORS 137.103 is amended to read:
137.103. As used in ORS 137.101 to 137.109, 161.675 and
161.685:
(1) 'Criminal activities' means any offense with respect to
which the defendant is convicted or any other criminal conduct
admitted by the defendant.
(2) 'Economic damages':
(a) Has the meaning given that term in ORS 31.710, except that
'economic damages' does not include future impairment of earning
capacity; and
(b) In cases involving criminal activities described in ORS
163.263, 163.264 or 163.266, includes the greater of:
(A) The value to the defendant of the victim's services as
defined in ORS 163.261; or
(B) The value of the victim's services, as defined in ORS
163.261, computed using the minimum wage established under ORS
653.025 and the overtime provisions of the federal Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.).
(3) 'Restitution' means { + :
(a) + } Full, partial or nominal payment of economic damages to
a victim { - . Restitution is independent of and may be awarded
in addition to a compensatory fine awarded under ORS 137.101. - }
{ + ; and + }
{ + (b) In a criminal prosecution described in ORS 180.095
(1)(c)(C), any portion of the fine imposed by the court that is
not ordered paid under ORS 137.101. + }
(4) 'Victim' means:
(a) The person against whom the defendant committed the
criminal offense, if the court determines that the person has
suffered economic damages as a result of the offense.
(b) Any person not described in paragraph (a) of this
subsection whom the court determines has suffered economic
damages as a result of the defendant's criminal activities.
(c) The Criminal Injuries Compensation Account, if it has
expended moneys on behalf of a victim described in paragraph (a)
of this subsection.
(d) An insurance carrier, if it has expended moneys on behalf
of a victim described in paragraph (a) of this subsection.
(5) 'Victim' does not include any coparticipant in the
defendant's criminal activities.
SECTION 2a. ORS 137.106 is amended to read:
137.106. (1) When a person is convicted of a crime, or a
violation as described in ORS 153.008, that has resulted in
economic damages, the district attorney shall investigate and
present to the court, prior to the time of sentencing, evidence
of the nature and amount of the damages. If the court finds from
the evidence presented that a victim suffered economic damages,
in addition to any other sanction it may impose, the court shall
include one of the following in the judgment:
(a) A requirement that the defendant pay the victim restitution
in a specific amount that equals the full amount of the victim's
economic damages as determined by the court.
(b) A requirement that the defendant pay the victim
restitution, and that the specific amount of restitution will be
established by a supplemental judgment based upon a determination
made by the court within 90 days of entry of the judgment. In the
supplemental judgment, the court shall establish a specific
amount of restitution that equals the full amount of the victim's
economic damages as determined by the court. The court may extend
the time within which the determination and supplemental judgment
may be completed for good cause. The lien, priority of the lien
and ability to enforce the specific amount of restitution
established under this paragraph by a supplemental judgment
relates back to the date of the original judgment that is
supplemented.
(c)(A) A requirement that the defendant pay the victim
restitution in a specific amount that is less than the full
amount of the victim's economic damages, with the consent of the
victim.
(B) If the defendant is convicted of a person felony, as that
term is defined in the rules of the Oregon Criminal Justice
Commission, a requirement that the defendant pay the victim
restitution in a specific amount that is less than the full
amount of the victim's economic damages, only with the written
consent of the victim.
(2) After the district attorney makes a presentation described
in subsection (1) of this section, if the court is unable to find
from the evidence presented that a victim suffered economic
damages, the court shall make a finding on the record to that
effect.
(3) No finding made by the court or failure of the court to
make a finding under this section limits or impairs the rights of
a person injured to sue and recover damages in a civil action as
provided in ORS 137.109.
{ + (4) When the court imposes a fine in a criminal
prosecution described in ORS 180.095 (1)(c)(C), the court shall
include in the judgment a requirement that the defendant pay as
restitution any portion of the fine not ordered paid under ORS
137.101. + }
{ - (4)(a) - } { + (5)(a) + } If a judgment or supplemental
judgment described in { - subsection (1) of - } this section
includes restitution, a court may delay the enforcement of the
monetary sanctions, including restitution, only if the defendant
alleges and establishes to the satisfaction of the court the
defendant's inability to pay the judgment in full at the time the
judgment is entered. If the court finds that the defendant is
unable to pay, the court may establish or allow an appropriate
supervising authority to establish a payment schedule, taking
into consideration the financial resources of the defendant and
the burden that payment of restitution will impose, with due
regard to the other obligations of the defendant. The supervising
authority shall be authorized to modify any payment schedule
established under this section.
(b) As used in this subsection, 'supervising authority ' means
any state or local agency that is authorized to supervise the
defendant.
{ - (5) - } { + (6) + } If the defendant objects to the
imposition, amount or distribution of the restitution, the court
shall allow the defendant to be heard on such issue at the time
of sentencing or at the time the court determines the amount of
restitution.
{ + (7) Restitution is independent of and may be awarded in
addition to a compensatory fine awarded under ORS 137.101. + }
SECTION 2b. ORS 144.275 is amended to read:
144.275. Whenever the State Board of Parole and Post-Prison
Supervision orders the release on parole of an inmate who has
been ordered to pay compensatory fines pursuant to ORS 137.101 or
to make restitution pursuant to ORS 137.106, but with respect to
whom payment of all or a portion of the fine or restitution was
suspended until the release of the inmate from imprisonment, the
board may establish a schedule by which payment of the
compensatory fine or restitution shall be resumed. In fixing the
schedule and supervising the paroled inmate's performance
thereunder, the board shall consider the factors specified in ORS
137.106 { - (4) - } { + (5) + }. The board shall provide to
the sentencing court a copy of the schedule and any modifications
thereof.
SECTION 2c. ORS 419A.004 is amended to read:
419A.004. As used in this chapter and ORS chapters 419B and
419C, unless the context requires otherwise:
(1) 'CASA Volunteer Program' means a program approved or
sanctioned by the juvenile court to recruit, train and supervise
volunteer persons to serve as court appointed special advocates.
(2) 'Child care center' means a residential facility for wards
or youth offenders that is licensed under the provisions of ORS
418.240.
(3) 'Community service' has the meaning given that term in ORS
137.126.
(4) 'Conflict of interest' means a person appointed to a local
citizen review board who has a personal or pecuniary interest in
a case being reviewed by that board.
(5) 'Counselor' means a juvenile department counselor or a
county juvenile probation officer.
(6) 'Court' means the juvenile court.
(7) 'Court appointed special advocate' or 'CASA' means a person
appointed by the court pursuant to a CASA Volunteer Program to
act as special advocate pursuant to ORS 419A.170.
(8) 'Court facility' has the meaning given that term in ORS
166.360.
(9) 'Department' means the Department of Human Services.
(10) 'Detention' or 'detention facility' means a facility
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063 for the detention of children, wards, youths or youth
offenders pursuant to a judicial commitment or order.
(11) 'Director' means the director of a juvenile department
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063.
(12) 'Guardian' means guardian of the person and not guardian
of the estate.
(13) 'Indian child' means any unmarried person less than 18
years of age who is:
(a) A member of an Indian tribe; or
(b) Eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.
(14) 'Juvenile court' means the court having jurisdiction of
juvenile matters in the several counties of this state.
(15) 'Local citizen review board' means the board specified by
ORS 419A.090 and 419A.092.
(16) 'Parent' means the biological or adoptive mother and the
legal father of the child, ward, youth or youth offender. As used
in this subsection, 'legal father' means:
(a) A man who has adopted the child, ward, youth or youth
offender or whose paternity has been established or declared
under ORS 109.070 or 416.400 to 416.465 or by a juvenile court;
and
(b) In cases in which the Indian Child Welfare Act applies, a
man who is a father under applicable tribal law.
(17) 'Permanent foster care' means an out-of-home placement in
which there is a long-term contractual foster care agreement
between the foster parents and the department that is approved by
the juvenile court and in which the foster parents commit to
raise a ward in substitute care or youth offender until the age
of majority.
(18) 'Planned permanent living arrangement' means an
out-of-home placement other than by adoption, placement with a
relative or placement with a legal guardian that is consistent
with the case plan and in the best interests of the ward.
(19) 'Public building' has the meaning given that term in ORS
166.360.
(20) 'Reasonable time' means a period of time that is
reasonable given a child or ward's emotional and developmental
needs and ability to form and maintain lasting attachments.
(21) 'Records' means any information in written form, pictures,
photographs, charts, graphs, recordings or documents pertaining
to a case.
(22) 'Resides' or 'residence,' when used in reference to the
residence of a child, ward, youth or youth offender, means the
place where the child, ward, youth or youth offender is actually
living or the jurisdiction in which wardship or jurisdiction has
been established.
(23) 'Restitution' has the meaning given that term in ORS
137.103 { + (3)(a) + }.
(24) 'Serious physical injury' means:
(a) A serious physical injury as defined in ORS 161.015; or
(b) A physical injury that:
(A) Has a permanent or protracted significant effect on a
child's daily activities;
(B) Results in substantial and recurring pain; or
(C) In the case of a child under 10 years of age, is a broken
bone.
(25) 'Shelter care' means a home or other facility suitable for
the safekeeping of a child, ward, youth or youth offender who is
taken into temporary custody pending investigation and
disposition.
(26) 'Short-term detention facility' means a facility
established under ORS 419A.050 (3) for holding children, youths
and youth offenders pending further placement.
(27) 'Sibling' means one of two or more children or wards
related:
(a) By blood or adoption through a common legal parent; or
(b) Through the marriage of the children's or wards' legal or
biological parents.
(28) 'Substitute care' means an out-of-home placement directly
supervised by the department or other agency, including placement
in a foster family home, group home or other child caring
institution or facility. 'Substitute care' does not include care
in:
(a) A detention facility, forestry camp or youth correction
facility;
(b) A family home that the court has approved as a ward's
permanent placement, when a private child caring agency has been
appointed guardian of the ward and when the ward's care is
entirely privately financed; or
(c) In-home placement subject to conditions or limitations.
(29) 'Surrogate' means a person appointed by the court to
protect the right of the child, ward, youth or youth offender to
receive procedural safeguards with respect to the provision of
free appropriate public education.
(30) 'Tribal court' means a court with jurisdiction over child
custody proceedings and that is either a Court of Indian
Offenses, a court established and operated under the code of
custom of an Indian tribe or any other administrative body of a
tribe that is vested with authority over child custody
proceedings.
(31) 'Victim' means any person determined by the district
attorney, the juvenile department or the court to have suffered
direct financial, psychological or physical harm as a result of
the act that has brought the youth or youth offender before the
juvenile court. When the victim is a minor, 'victim' includes the
legal guardian of the minor. The youth or youth offender may not
be considered the victim. When the victim of the crime cannot be
determined, the people of Oregon, as represented by the district
attorney, are considered the victims.
(32) 'Violent felony' means any offense that, if committed by
an adult, would constitute a felony and:
(a) Involves actual or threatened serious physical injury to a
victim; or
(b) Is a sexual offense. As used in this paragraph, 'sexual
offense' has the meaning given the term 'sex crime' in ORS
181.594.
(33) 'Ward' means a person within the jurisdiction of the
juvenile court under ORS 419B.100.
(34) 'Young person' means a person who has been found
responsible except for insanity under ORS 419C.411 and placed
under the jurisdiction of the Psychiatric Security Review Board.
(35) 'Youth' means a person under 18 years of age who is
alleged to have committed an act that is a violation, or, if done
by an adult would constitute a violation, of a law or ordinance
of the United States or a state, county or city.
(36) 'Youth care center' has the meaning given that term in ORS
420.855.
(37) 'Youth offender' means a person who has been found to be
within the jurisdiction of the juvenile court under ORS 419C.005
for an act committed when the person was under 18 years of age.
SECTION 3. ORS 137.295 is amended to read:
137.295. (1) When a defendant convicted of a crime or violation
in the circuit, justice or municipal court, or allowed diversion
in such a case, makes a payment of money to be credited against
monetary obligations imposed as a result of that conviction or
diversion, the clerk shall distribute the payment as provided in
this section.
(2) There are four categories of monetary obligations. The
categories are as follows:
(a) Category 1 consists of compensatory fines under ORS
137.101.
(b) Category 2 consists of restitution as defined in ORS
137.103 and restitution under ORS 419C.450 and a monetary
obligation imposed under ORS 811.706.
(c) Category 3 consists of the unitary assessment imposed under
ORS 137.290, costs imposed under ORS 151.505 or 161.665 and those
fines, costs, forfeited security amounts and other monetary
obligations payable to the state or to the General Fund of the
state in criminal and quasi-criminal cases for which moneys the
law does not expressly provide other disposition.
(d) Category 4 consists of monetary obligations imposed upon
the defendant as a result of the conviction, but which do not
fall under category 1, category 2 or category 3 of the obligation
categories. These include, but are not limited to, fines and
other monetary obligations that the law expressly directs be paid
to an agency, person or political subdivision of the state, and
any other obligation to reimburse for payment of a reward under
ORS 131.897. Notwithstanding paragraph (c) of this subsection,
the portion of assessments collected as required by ORS 137.290
(2)(c) and (d) shall be considered category 4 obligations.
(3) As long as there remains unpaid any obligation under
category 1, the clerk shall credit toward category 1 all of each
payment received.
(4) After the total obligation has been credited under category
1, then as long as there remains unpaid any obligation under both
categories 2 and 3, the clerk shall credit toward each such
category 50 percent of each payment received.
(5) { + (a) + } The clerk shall monthly transfer the moneys
credited under category 1 and under category 2 to the victims for
whose benefit moneys under that category were ordered paid. If
there are multiple victims for whose benefit moneys have been
ordered paid under category 2, the clerk shall first transfer
moneys credited under category 2 to the victim, as defined in ORS
137.103 (4)(a). When the moneys due the victim, as defined in
ORS 137.103 (4)(a), have been fully paid, the clerk shall
transfer moneys credited under category 2 to the Criminal
Injuries Compensation Account if moneys have been ordered paid to
the account under category 2. When the moneys due the account
have been fully paid, the clerk shall transfer moneys credited
under category 2 to any other victims, as defined in ORS 137.103
(4)(b) or (d), for whose benefit moneys under that category were
ordered paid in proportion to the amounts ordered. { + When all
moneys due the victims have been fully paid, the clerk shall
transfer any moneys credited under category 2 that are ordered
paid under ORS 137.106 (4) to the Department of Justice
Protection and Education Revolving Account created pursuant to
ORS 180.095. + }
{ + (b) + }The clerk of a circuit court shall monthly
transfer the moneys credited under category 3 as directed by the
State Court Administrator for deposit in the State Treasury to
the credit of the Criminal Fine and Assessment Account
established under ORS 137.300. The clerk of a justice or
municipal court shall monthly transfer the moneys credited under
category 3 to the Department of Revenue as provided in ORS
305.830.
(6) When the entire amount owing for purposes of either
category 2 or category 3 has been credited, further payments by
the defendant shall be credited by the clerk entirely to the
unpaid balance of whichever of those categories remains unpaid,
until both category 2 and category 3 have been entirely paid.
(7) When category 1, category 2 and category 3 have been
entirely paid and any obligation remains owing under category 4,
the clerk shall credit further payments by the defendant to the
obligations under category 4 and shall monthly transfer the
moneys so received to the appropriate recipient, giving first
priority to counties and cities entitled to revenues generated by
prosecutions in justice and municipal courts and giving last
priority to persons entitled to moneys as reimbursement for
reward under ORS 131.897. The clerk shall monthly transfer the
portion of assessments collected as required by ORS 137.290
(2)(c) and (d) to the county for administration of substance
abuse treatment programs described in ORS 430.420.
(8) Notwithstanding subsection (5) of this section, the clerk
of a circuit court shall monthly transfer the moneys attributable
to parking violations to the State Treasurer for deposit in the
General Fund.
(9) The clerk of a justice or municipal court must make the
transfers required by this section not later than the last day of
the month immediately following the month in which a payment is
made.
{ +
DEPARTMENT OF STATE LANDS + }
SECTION 4. ORS 196.890 is amended to read:
196.890. Any person who violates any provision of ORS 196.600
to 196.905 or any rule, order or permit adopted or issued under
ORS 196.600 to 196.905 shall be subject to a { + :
(1) + } Civil penalty in an amount to be determined by the
Director of the Department of State Lands of not more than
$10,000 per day of violation { - . - } { + ; or
(2) Penalty of not more than $10,000 per day of violation in a
civil action under ORS 196.895 (1)(b). The specific amount of any
such penalty shall be consistent with the amount of civil penalty
that would be awarded for such violation as provided in rules
adopted by the department under ORS 196.900. + }
SECTION 5. ORS 196.895 is amended to read:
196.895. (1) { + (a) Subject to paragraph (b) of this
subsection, + } civil penalties under ORS 196.890 { + (1) + }
shall be imposed as provided in ORS 183.745.
{ + (b) When the Department of State Lands brings a civil
action pursuant to ORS 196.870, in lieu of imposing a civil
penalty under ORS 196.890 (1), the Department of State Lands may
recover a penalty in such civil action in amounts equal to those
provided in ORS 196.890 (2). + }
(2) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the Director of the Department of State Lands
under this section may be joined by the director with any other
action taken against the same person under ORS 196.860 (1)(f).
(3) { + (a) + } Any civil penalty recovered under this section
shall be deposited in the Common School Fund for use by the
Department of State Lands in administration of ORS 196.600 to
196.905, 196.990 and 541.990 and as otherwise required by law.
{ + (b) Any penalty recovered in a civil action under this
section shall be deposited in the Department of Justice
Protection and Education Revolving Account created pursuant to
ORS 180.095. The provisions of this paragraph do not affect the
deposit of compensation amounts into the Common School Fund
pursuant to ORS 196.870 (6). + }
SECTION 6. ORS 196.895, as amended by section 5, chapter 516,
Oregon Laws 2001, is amended to read:
196.895. (1) { + (a) + } Except as provided in { + paragraph
(b) of this subsection and + } subsection (4) of this section,
civil penalties under ORS 196.890 shall be imposed as provided in
ORS 183.745.
{ + (b) When the Department of State Lands brings a civil
action pursuant to ORS 196.870, in lieu of imposing a civil
penalty under ORS 196.890 (1), the Department of State Lands may
recover a penalty in such civil action in amounts equal to those
provided in ORS 196.890 (2). + }
(2) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the Director of the Department of State Lands
under this section may be joined by the director with any other
action taken against the same person under ORS 196.860 (1)(f).
(3) { + (a) + } Any civil penalty recovered under this section
shall be deposited in the Common School Fund for use by the
Department of State Lands in administration of ORS 196.600 to
196.905, 196.990 and 541.990 and as otherwise required by law.
{ + (b) Any penalty recovered in a civil action under this
section shall be deposited in the Department of Justice
Protection and Education Revolving Account created pursuant to
ORS 180.095. The provisions of this paragraph do not affect the
deposit of compensation amounts into the Common School Fund
pursuant to ORS 196.870 (6). + }
(4) Notwithstanding any provision of ORS 183.745, any person
having an interest that is adversely affected or aggrieved by an
alleged violation for which civil penalties are imposed under ORS
196.890 may intervene in a contested case proceeding { + or
civil action + } pertaining to the imposition of civil penalties
under this section.
{ +
STATE PARKS AND RECREATION DEPARTMENT + }
SECTION 7. ORS 390.663 is amended to read:
390.663. (1) If the State Parks and Recreation Director
determines that any improvement is being made on property within
the ocean shore without a permit issued under ORS 390.650, or in
a manner contrary to the conditions set out in the permit, the
director may:
(a) Investigate, hold hearings, make orders and take action, as
provided in ORS 390.620 to 390.676, as soon as possible.
(b) For the purpose of investigating conditions relating to
such improvements, through the employees or the duly authorized
representatives of the State Parks and Recreation Department,
enter at reasonable times upon any private or public property.
(c) Conduct public hearings in accordance with ORS chapter 183.
(d) Publish findings and recommendations as they are developed
relative to public policies and procedures necessary for the
correction of conditions or violations of ORS 390.620 to 390.676.
(e) Give notice of any proposed order relating to a violation
by personal service or by mailing the notice by registered or
certified mail to the person or governmental body affected. Any
person aggrieved by a proposed order of the director may request
a hearing within 20 days of the date of personal service or
mailing of the notice. Hearings shall be conducted under the
provisions of ORS chapter 183 applicable to contested cases, and
judicial review of final orders shall be conducted in the Court
of Appeals according to ORS 183.482. If no hearing is requested
or if the party fails to appear, a final order shall be issued
upon a prima facie case on the record of the department.
(f) Take appropriate action for the enforcement of any rules or
final orders. Any violation of ORS 390.620 to 390.676 or of any
rule or final order of the director under ORS 390.620 to 390.676
may be enjoined in civil abatement proceedings brought in the
name of the State of Oregon. In any such proceedings, the
director may seek and the court may award a sum of money
sufficient to compensate the public for any destruction or
infringement of any public right of navigation, fishery or
recreation resulting from such violation. Proceedings brought by
the director shall set forth, if applicable, the dates of notice
and hearing and the specific rule or order of the director,
together with the facts of noncompliance, the facts giving rise
to the public nuisance and a statement of the damages to any
public right of navigation, fishery or recreation, if any,
resulting from such violation. { + The director may not be
required to furnish a bond in such proceeding. Any action
authorized by this section must be tried in the circuit court of
the county in which the violation occurs or in Marion County. The
State Parks and Recreation Commission, the department, the
director and the employees and duly authorized representatives of
the department may not be held liable for any damages a defendant
may sustain as a result of an injunction, restraining order or
other order issued under this section. + }
(2) In addition to the administrative action the director may
take under subsection (1) of this section, the director may enter
an order requiring any person to cease and desist from any
violation if the director determines that such violation presents
an imminent and substantial risk of injury, loss or damage to the
ocean shore.
(3) An order under subsection (2) of this section:
(a) May be entered without prior notice or hearing.
(b) Shall be served upon the person by personal service or by
registered or certified mail.
(c) Shall state that a hearing will be held on the order if a
written request for hearing is filed by the person subject to the
order within 10 days after receipt of the order.
(d) Shall not be stayed during the pendency of a hearing
conducted under subsection (4) of this section.
(4) If a person subject to an order under subsection (2) of
this section files a timely demand for hearing, the director
shall hold a contested case hearing according to the applicable
provisions of ORS chapter 183. If the person fails to request a
hearing, the order shall be entered as a final order upon prima
facie case made on the record of the department.
(5) Neither the director nor any duly authorized representative
of the department shall be liable for any damages a person may
sustain as a result of a cease and desist order issued under
subsection (2) of this section.
(6) The state and local police shall cooperate in the
enforcement of any order issued under subsection (2) of this
section and shall require no further authority or warrant in
executing or enforcing such order. If any person fails to comply
with an order issued under subsection (2) of this section, the
circuit court of the county in which the violation occurred or is
threatened shall compel compliance with the director's order in
the same manner as with an order of that court.
(7) As used in this section, 'violation' means making an
improvement on property within the ocean shore without a permit
or in a manner contrary to the conditions set out in a permit
issued under ORS 390.650.
SECTION 8. ORS 390.669 is amended to read:
390.669. (1) In addition to any enforcement action taken under
ORS 390.663, civil proceedings to abate alleged public nuisances
under ORS 390.661 may be instituted in the name of the State of
Oregon upon relation of the State Parks and Recreation Director
or by any person in the person's name.
(2) Before beginning any action under subsection (1) of this
section, a person other than the director shall provide to the
director 60 days' notice of the intended action. A person other
than the director may not begin an action under subsection (1) of
this section if the director has commenced and is diligently
prosecuting civil, criminal or administrative proceedings in the
same matter.
(3) The director may institute an action in the name of the
State of Oregon for a temporary restraining order or preliminary
injunction if a threatened or existing public nuisance under ORS
390.661 creates an emergency that requires immediate action to
protect the public health, safety or welfare. The director shall
not be required to furnish a bond in such proceeding. { + Any
action authorized by this section must be tried in the circuit
court of the county in which the violation occurs or in Marion
County. + }
(4) The State Parks and Recreation Commission, the State Parks
and Recreation Director and the employees or duly authorized
representatives of the State Parks and Recreation Department
shall not be liable for any damages a defendant may sustain as a
result of an injunction, restraining order or abatement order
issued under this section.
(5) A case filed under this section shall be given preference
on the docket over all other civil cases except those given an
equal preference by statute.
(6) In any action brought under this section, the plaintiff may
seek and the court may award a sum of money sufficient to
compensate the public for any destruction or infringement of any
public right of navigation, fishery or recreation resulting from
an existing public nuisance under ORS 390.661. Any money received
by the plaintiff under this subsection shall be deposited in an
account of the State Parks and Recreation Department for use by
the department in administering the ocean shore program.
SECTION 9. ORS 390.674 is amended to read:
390.674. (1) { + (a) Except as provided in paragraph (b) of
this subsection, + } civil penalties under ORS 390.992 shall be
imposed as provided in ORS 183.745.
{ + (b) When the State Parks and Recreation Department brings
a civil action pursuant to ORS 390.663 (1)(f), 390.669 or 390.992
(2), in lieu of imposing a civil penalty under ORS 390.992, the
State Parks and Recreation Department may recover a penalty in
such civil action in amounts equal to those provided for in ORS
390.992 (1)(b). + }
(2) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the State Parks and Recreation Director under
this section may be joined by the director with any other action
taken against the same person under ORS 390.995 (1).
(3) { + (a) + } Any civil penalty recovered under this section
shall be deposited into an account of the State Parks and
Recreation Department for use by the department in administration
of the ocean shore program.
{ + (b) Any penalty recovered in a civil action under ORS
390.992 (1)(b) shall be deposited in the Department of Justice
Protection and Education Revolving Account created pursuant to
ORS 180.095. The provisions of this paragraph do not affect the
deposit of compensation amounts into an account of the State
Parks and Recreation Department pursuant to ORS 390.669 (6). + }
SECTION 10. ORS 390.925 is amended to read:
390.925. In addition to any other penalties provided by law for
violation of ORS 390.805 to 390.925 or rules adopted thereunder,
the State Parks and Recreation Department is vested with power to
obtain injunctions and other appropriate relief against
violations of any provisions of ORS 390.805 to 390.925 and any
rules adopted under ORS 390.805 to 390.925 and agreements made
under ORS 390.805 to 390.925. { + The department may not be
required to furnish a bond in such proceeding. Any action
authorized by this section must be tried in the circuit court of
the county in which the violation occurs or in Marion County. The
State Parks and Recreation Commission, the department, the State
Parks and Recreation Director and the employees and duly
authorized representatives of the department may not be held
liable for any damages a defendant may sustain as a result of an
injunction, restraining order or other order issued under this
section. + }
SECTION 11. ORS 390.986 is amended to read:
390.986. The State Parks and Recreation Department has power to
obtain injunctions against violations of any provisions of ORS
390.950 to 390.989 and any rules and regulations adopted under
ORS 390.950 to 390.989 and agreements made under ORS 390.950 to
390.989. { + The department may not be required to furnish a
bond in such proceeding. Any action authorized by this section
must be tried in the circuit court of the county in which the
violation occurs or in Marion County. The State Parks and
Recreation Commission, the department, the State Parks and
Recreation Director and the employees and duly authorized
representatives of the department may not be held liable for any
damages a defendant may sustain as a result of an injunction,
restraining order or other order issued under this section. + }
SECTION 12. ORS 390.992 is amended to read:
390.992. (1) Any person who violates any provision of ORS
390.610, 390.620 to 390.676, 390.690 and 390.705 to 390.770 or
any rule, order or permit adopted or issued under ORS 390.610,
390.620 to 390.676, 390.690 and 390.705 to 390.770 shall be
subject to a { + :
(a) + } Civil penalty in an amount to be determined by the
State Parks and Recreation Director of not more than $10,000 per
day of violation { - . - } { + ; or
(b) Penalty of not more than $10,000 per day of violation in a
civil action under ORS 390.674 (1)(b). The specific amount of any
such penalty shall be consistent with the amount of civil penalty
that would be awarded for such violation as provided in rules
adopted by the State Parks and Recreation Commission under ORS
390.124 or by the State Parks and Recreation Department under ORS
390.660. + }
(2) In addition to any other penalties provided under
subsection (1) of this section, the State Parks and Recreation
Department is vested with power to obtain injunctions and other
appropriate relief against a person who violates any provisions
of ORS 390.610, 390.620 to 390.676, 390.690 and 390.705 to
390.770 or any rule, order or permit adopted or issued under ORS
390.610, 390.620 to 390.676, 390.690 and 390.705 to 390.770.
{ + The department shall not be required to furnish a bond in
any such action seeking injunctive relief. Any action authorized
by this section shall be tried in the circuit court of the county
in which the violation occurs or in Marion County. The State
Parks and Recreation Commission, the department, the State Parks
and Recreation Director and the employees and duly authorized
representatives of the department shall not be liable for any
damages a defendant may sustain as a result of an injunction,
restraining order or abatement order issued under this
section. + }
{ +
DEPARTMENT OF ENVIRONMENTAL QUALITY + }
SECTION 13. ORS 468.090 is amended to read:
468.090. { - (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 { + :
(1) + } Shall by conference, conciliation and persuasion
endeavor to eliminate the source or cause of the pollution or
contamination which resulted in such violation { - . - } { + ;
and + }
{ - (2) In case of failure to remedy the violation, the
department shall - }
{ + (2)(a) May + } commence enforcement proceedings pursuant
to the procedures set forth in ORS chapter 183 for a contested
case and in ORS 468B.032 { + ; or
(b) May commence a civil action as provided in ORS 468.100 + }.
SECTION 14. ORS 468.100 is amended to read:
468.100. (1) Whenever the { + Department of + } Environmental
Quality
{ - Commission - } has good cause to believe that any person
{ + has engaged, + } is engaged or is about to engage in any
acts or practices which constitute a violation of ORS
{ - 448.305 - } { + 448.410 to 448.430 + }, 454.010 to
454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to
454.755 { + , 454.782 to 454.800, 459.900, 459A.552 to 459A.599,
459A.695, 459A.780, 468A.655, 468B.095, 468B.165 and 783.625 to
783.640 + } and ORS chapters { + 459, 459A. 465, 466, 467, + }
468, 468A and 468B, or any rule, standard or order adopted or
entered pursuant thereto, or of any permit { + or
certificate + } issued pursuant to ORS { - 448.305 - } { +
448.410 to 448.430 + }, 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755 { + , 454.782 to 454.800,
459A.552 to 459A.599 and 468B.095 + } and ORS chapters { + 459,
459A, 465, 466, 467, + } 468, 468A and 468B, the
{ - commission - } { + department + } may institute
{ - actions or proceedings for - } { + a civil action to
recover penalties as described in ORS 468.135, or for such
other + } legal or equitable remedies to enforce compliance
thereto or to restrain further violations. { + The department
may not be required to furnish a bond in any such action seeking
injunctive relief. Any action authorized by this section must be
tried in the circuit court of the county in which the violation
occurs or in Marion County. The Environmental Quality Commission,
the department, the Director of the Department of Environmental
Quality and the employees and duly authorized representatives of
the department may not be liable for any damages a defendant may
sustain as a result of an injunction, restraining order or
abatement order issued under this section. + }
(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 - } { +
department + }.
(3) A regional authority formed under ORS 468A.105 may exercise
the same functions as are vested in the { - commission - }
{ + department + } 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 - }
{ + department + } 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 - }
{ + department + } 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 - } { + department + }.
SECTION 15. ORS 468.135 is amended to read:
468.135. (1) { + (a) + } Any civil penalty under ORS 468.140
shall be imposed in the manner provided in ORS 183.745.
{ + (b) If the Department of Environmental Quality institutes
a civil action as provided in ORS 468.100, in lieu of imposing a
civil penalty under ORS 466.992 and 468.140, the department may
recover a penalty in such civil action in an amount equal to the
amount of civil penalty that would be recovered as provided in
ORS 466.992 and 468.140. + }
(2) { + Except as otherwise provided by law and by subsection
(3) of this section, + } 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.
{ + (3) Any penalty recovered in a civil action under this
section shall be deposited in the Department of Justice
Protection and Education Revolving Account created pursuant to
ORS 180.095. + }
SECTION 16. ORS 468.140, as amended by section 9, chapter 267,
Oregon Laws 2009, is amended to read:
468.140. (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 - } { +
448.410 to 448.430 + }, 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755 { + , 454.782 to 454.800,
459.900, 459A.552 to 459A.599, 459A.695, 459A.780, 468A.655,
468B.095, 468B.165 + } and 783.625 to 783.640 and { - ORS
chapter 467 and - } ORS chapters { + 459, 459A, 465, 466,
467, + } 468, 468A and 468B.
(c) Any rule or standard or order of the Environmental Quality
Commission adopted or issued pursuant to ORS { - 448.305, - }
{ + 448.410 to 448.430, + } 454.010 to 454.040, 454.205 to
454.255, 454.505 to 454.535, 454.605 to 454.755 { + , 454.782 to
454.800, 459A.552 to 459A.599, 468B.095, 468B.165 + } and 783.625
to 783.640 and { - ORS chapter 467 and - } ORS chapters
{ + 459, 459A, 465, 466, 467, + } 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 or hazardous material into the waters of the
state or intentionally or negligently fails to clean up a spill
or release of oil or hazardous material into the waters of the
state as required by ORS 466.645 shall incur a civil penalty not
to exceed the amount of $100,000 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 $25,000 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 - } { + 448.410 to 448.430 + }, 454.010 to
454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to
454.755 { + , 454.782 to 454.800, 459.900, 459A.552 to 459A.599,
459A.695, 459A.780, 468A.655, 468B.095, 468B.165 + } and 783.625
to 783.640 and ORS chapters { + 459, 459A, 465, 466, 467, + }
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 $1,000 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.
{ +
STATE DEPARTMENT OF ENERGY + }
SECTION 17. ORS 469.085 is amended to read:
469.085. (1) Except as otherwise provided in this section,
civil penalties under ORS 469.992 shall be imposed as provided in
ORS 183.745.
(2) Notwithstanding ORS 183.745 (2), the notice to the person
against whom a civil penalty is to be imposed shall reflect a
complete statement of the consideration given to the factors
listed in subsection (7) of this section. The notice may be
served by either the Director of the State Department of Energy
or the Energy Facility Siting Council.
(3) Notwithstanding ORS 183.745, if a hearing is not requested
or if the person requesting a hearing fails to appear, a final
order shall be entered upon a prima facie case made on the record
of the agency.
(4) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the director or the council under this section
may be joined by the director or the council with any other
action against the same person under this chapter.
(5) Any civil penalty recovered under this section shall be
paid into the General Fund.
(6) The director or the council shall adopt by rule a schedule
of the amount of civil penalty that may be imposed for a
particular violation.
(7) In imposing a penalty under ORS 469.992, the director or
the council shall consider:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct or prevent any violation;
(b) Any prior violations of ORS chapter 469 or rules, orders or
permits relating to the alleged violation;
(c) The impact of the violation on public health and safety or
public interests in fishery, navigation and recreation;
(d) Any other factors determined by the director or the council
to be relevant; and
(e) The alleged violator's cooperativeness and effort to
correct the violation.
(8) The penalty imposed under ORS 469.992 may be remitted or
mitigated upon such terms and conditions as the director or
council determines to be proper. Upon the request of the person
incurring the penalty, the director or council shall consider
evidence of the economic and financial condition of the person in
determining whether a penalty shall be remitted or mitigated.
{ + (9)(a) Notwithstanding any other provision of this
section, when the State Department of Energy brings a civil
action pursuant to ORS 469.563, in lieu of imposing civil
penalties under ORS 469.992, the State Department of Energy may
recover a penalty in such civil action in an amount equal to the
amount of civil penalty that would be recovered as provided in
ORS 469.992.
(b) Any penalty recovered in a civil action under this section
shall be deposited in the Department of Justice Protection and
Education Revolving Account created pursuant to ORS 180.095. + }
SECTION 18. ORS 469.563 is amended to read:
469.563. Without prior administrative proceedings, a circuit
court may issue such restraining orders, and such temporary and
permanent injunctive relief as is necessary to secure compliance
with ORS 469.320, 469.405 (3), 469.410, 469.421, 469.430,
469.440, 469.442, 469.507, 469.525 to 469.559, 469.560, 469.561,
469.562, 469.590 to 469.619, 469.930 and 469.992 or with the
terms and conditions of a site certificate. { + The State
Department of Energy may not be required to furnish a bond in
such proceeding. Any action authorized by this section must be
tried in the circuit court of the county in which the violation
occurs or in Marion County. The State Department of Energy, the
Director of the State Department of Energy, the employees and
duly authorized representatives of the department, and the Energy
Facility Siting Council may not be liable for any damages a
defendant may sustain as a result of an injunction, restraining
order or other order issued under this section. + }
{ +
STATE DEPARTMENT OF FISH AND WILDLIFE + }
SECTION 19. { + Section 20 of this 2011 Act is added to and
made a part of ORS chapter 496. + }
SECTION 20. { + In addition to any other remedies provided by
law, the State Department of Fish and Wildlife may institute a
civil action in circuit court to enjoin or abate any violation of
wildlife laws or any rule promulgated by the State Fish and
Wildlife Commission in carrying out the wildlife laws. The
department may not be required to furnish a bond in such
proceeding. Any action authorized by this section must be tried
in the circuit court of the county in which the violation occurs
or in Marion County. The commission, the department, the State
Fish and Wildlife Director and the employees and duly authorized
representatives of the department may not be held liable for any
damages a defendant may sustain as a result of an injunction,
restraining order or abatement order issued under this
section. + }
SECTION 21. { + Section 22 of this 2011 Act is added to and
made a part of ORS chapter 506. + }
SECTION 22. { + (1) In addition to any other remedies provided
by law, the State Department of Fish and Wildlife may institute a
civil action in circuit court to enjoin or abate any violation of
any provision of the commercial fishing laws or of any rule
promulgated by the State Fish and Wildlife Commission in carrying
out the commercial fishing laws. The department shall not be
required to furnish a bond in such proceeding.
(2) Any action authorized by this section shall be tried in the
circuit court of the county in which the violation occurs or in
Marion County.
(3) The commission, the department, the State Fish and Wildlife
Director and the employees and duly authorized representatives of
the department may not be held liable for any damages a defendant
may sustain as a result of an injunction, restraining order or
abatement order issued under this section.
(4) When the department brings a civil action under this
section, in lieu of imposing a civil penalty under ORS 506.995,
the department may recover a penalty in such civil action in an
amount equal to the amount of civil penalty that would be
recovered as provided in ORS 506.995 (2). Any such penalty
recovered in a civil action shall be deposited in the Department
of Justice Protection and Education Revolving Account created
pursuant to ORS 180.095. + }
{ +
STATE DEPARTMENT OF GEOLOGY AND MINERAL INDUSTRIES + }
SECTION 23. ORS 517.880 is amended to read:
517.880. (1) When the State Department of Geology and Mineral
Industries finds that an operator is conducting a surface mining
operation for which an operating permit is required by ORS
517.702 to 517.989 or by rules adopted by the department, but has
not been issued by the department, the department may issue an
order to the operator to suspend the operation until an operating
permit has been issued by the department for the surface mining
operation or until the department is assured that the operator
will comply with the requirement to obtain a permit.
(2) The department may issue an order to an operator to suspend
operations if the operator has not complied with or is not
complying with the operating permit, reclamation plan, this
chapter or rules of the department. Failure to comply includes,
but is not limited to, disturbing land within the permit boundary
that has not been approved by the department for excavation,
placement of debris or removal of vegetation.
(3) If the operator fails or refuses to comply with a
suspension order, the Attorney General, at the request of the
department, shall initiate any necessary legal proceeding to
enjoin the surface mining operation and to provide for completion
of the reclamation of the lands affected by the operation,
including the restoration of buffers, setbacks or other areas not
approved for disturbance. { + The department may not be required
to furnish a bond in such proceeding. Any action authorized by
this section must be tried in the circuit court of the county in
which the violation occurs or in Marion County. The governing
board of the department, the department, the State Geologist and
the employees and duly authorized representatives of the
department may not be liable for any damages a defendant may
sustain as a result of an injunction, restraining order or other
order issued under this section. + }
SECTION 24. ORS 517.992 is amended to read:
517.992. (1) In addition to any other sanction authorized by
law, the governing board of the State Department of Geology and
Mineral Industries may impose a civil penalty of not less than
$200 per day and not more than $50,000 per day for any violation
of ORS 517.702 to 517.989 related to a chemical process mine, of
any rules adopted under those provisions related to a chemical
process mine, of any orders issued under those provisions related
to a chemical process mine or of any conditions of a permit
issued under those provisions related to a chemical process mine.
A penalty may be imposed under this section without regard to
whether the violation occurs on property covered by a permit
issued under ORS 517.702 to 517.989.
(2)(a) In addition to any other sanction authorized by law, and
subject to the limitations of paragraph (b) of this subsection,
the governing board of the State Department of Geology and
Mineral Industries may impose a civil penalty of not more than
$10,000 per day for any violation of ORS 517.702 to 517.740,
517.750 to 517.901 and 517.905 to 517.951 not related to a
chemical process mine, of any rules adopted under those
provisions not related to a chemical process mine, of any orders
issued under those provisions not related to a chemical process
mine or of any conditions of a permit issued under those
provisions not related to a chemical process mine.
(b) A penalty may be imposed under this subsection only if a
landowner or operator fails to complete erosion stabilization as
required by ORS 517.775 or board rules adopted to implement that
section, if the operator has failed to comply with an order
issued under ORS 517.860 or 517.880, if the operation is being
conducted in violation of conditions imposed on an operating
permit or reclamation plan pursuant to ORS 517.835 or if the
operation is being conducted:
(A) Without a permit;
(B) Outside the permit boundary; or
(C) Outside a permit condition regarding boundaries, setbacks,
buffers or the placement of surface mining refuse.
(3) { + (a) Except as provided in paragraph (b) of this
subsection, + } civil penalties under this section shall be
imposed in the manner provided by ORS 183.745.
{ + (b) When the State Department of Geology and Mineral
Industries brings a civil action pursuant to ORS 517.860 (3) or
517.880 (3), in lieu of imposing a civil penalty under this
section, the State Department of Geology and Mineral Industries
may recover a penalty in such civil action in an amount equal to
the amount of the civil penalty that would be awarded as provided
in the rules adopted under subsection (8) of this section. + }
(4) Failure to pay a civil penalty that has become final under
this section shall be grounds for revocation of any permit issued
under ORS 517.702 to 517.989 to the person against whom the
penalty has been assessed.
(5) { + (a) + } Any civil penalty received by the State
Treasurer under this section shall be deposited in the General
Fund to the credit of the Geology and Mineral Industries Account
and is continuously appropriated to the State Department of
Geology and Mineral Industries to the extent necessary for the
administration and enforcement of the laws, rules and orders
under which the penalty was assessed.
{ + (b) Any penalty recovered in a civil action under this
section shall be deposited in the Department of Justice
Protection and Education Revolving Account created pursuant to
ORS 180.095. + }
(6) A reclamation fund shall be established into which funds
not used as described in subsection (5) of this section shall be
deposited. This money shall be used by the State Department of
Geology and Mineral Industries for the purpose of the reclamation
of abandoned mine and drill sites.
(7) When a single incident violates statutes, rules, board
orders or permit conditions administered by more than one agency,
the department shall coordinate with the other agencies having
civil penalty authority before imposing a civil penalty.
(8) In implementing this section, the department shall adopt
rules that provide civil penalties that are commensurate with the
severity of violations.
(9) A civil penalty may be imposed against the board of
directors and high managerial agents of a corporation if those
persons engage in, authorize, solicit, request, command or
knowingly tolerate the conduct for which the penalty is to be
imposed. As used in this subsection, 'agent' and 'high managerial
agent' have the meanings given those terms in ORS 161.170.
SECTION 25. ORS 520.175 is amended to read:
520.175. (1) Whenever it appears that any person is violating
or threatening to violate any provision of this chapter or any
rule adopted or order issued under this chapter, the governing
board of the State Department of Geology and Mineral Industries
may bring an action against such person in the circuit court of
any county where the violation occurs or is threatened, to
restrain such person from continuing such violation. In any such
action, the court shall have jurisdiction to grant to the board,
without bond or other undertaking, such temporary restraining
orders or final prohibitory and mandatory injunctions as the
facts may warrant, including any such orders restraining the
movement or disposition of oil or gas. { + The governing board
of the State Department of Geology and Mineral Industries may not
be required to furnish a bond in such proceeding. The governing
board of the State Department of Geology and Mineral Industries,
the State Department of Geology and Mineral Industries, the State
Geologist and the employees and duly authorized representatives
of the State Department of Geology and Mineral Industries may not
be held liable for any damages a defendant may sustain as a
result of an injunction, restraining order or other order issued
under this section. + }
(2) If the board fails to bring an action to enjoin a violation
or threatened violation of any provision of this chapter or any
rule adopted or order issued under this chapter, within 60 days
after receipt of a written request to do so by any person who is
or will be adversely affected by such violation, then the person
making such request may bring an action to restrain such
violation or threatened violation in any court in which the board
might have brought such action. The board shall be made a party
defendant in such action in addition to the person or persons
bringing the action and the action shall proceed and injunctive
relief may be granted without bond in the same manner as if the
action had been brought by the board.
SECTION 26. ORS 522.810 is amended to read:
522.810. Whenever it appears that any person is violating or
threatening to violate any provision of this chapter or any rule
or order of the governing board of the State Department of
Geology and Mineral Industries made thereunder, or is threatening
to or committing waste, the board may bring suit against such
person in the circuit court of any county where the violation or
waste occurs or is threatened, to restrain such person from
continuing such violation or waste. In any such suit, the court
shall have jurisdiction to grant to the board, without bond or
other undertaking, such temporary restraining orders or final
prohibitory and mandatory injunctions as the facts may warrant,
including any such orders restraining the movement, disposition
or waste of geothermal resources. { + The board may not be
required to furnish a bond in such proceeding. The board, the
State Department of Geology and Mineral Industries, the State
Geologist and the employees and duly authorized representatives
of the department may not be held liable for any damages a
defendant may sustain as a result of an injunction, restraining
order or other order issued under this section. + }
{ +
STATE FORESTRY DEPARTMENT + }
SECTION 27. { + Section 28 of this 2011 Act is added to and
made a part of ORS 527.610 to 527.770. + }
SECTION 28. { + (1) In addition to any other remedies provided
by law, the State Forester may institute a civil action in
circuit court to enjoin or abate any violation described in ORS
527.992 (1). The State Forester may not be required to furnish a
bond in such proceeding.
(2) When the State Forester brings a civil action under this
section, in lieu of imposing a civil penalty under ORS 527.992,
the State Forestry Department may recover a penalty in such civil
action an amount equal to the amount of civil penalty that would
be recovered as provided in ORS 527.992 (1). Any such penalty
recovered in a civil action shall be deposited in the Department
of Justice Protection and Education Revolving Account created
pursuant to ORS 180.095.
(3) Any action authorized by this section shall be tried in the
circuit court of the county in which the violation occurs or in
Marion County.
(4) The State Board of Forestry, the State Forestry Department,
the State Forester and the employees and duly authorized
representatives of the department may not be liable for any
damages a defendant may sustain as a result of an injunction,
restraining order or abatement order issued under this
section. + }
{ +
WATER RESOURCES DEPARTMENT + }
SECTION 29. { + Section 30 of this 2011 Act is added to and
made a part of ORS chapter 536. + }
SECTION 30. { + (1) In addition to any other remedies provided
by law, the Water Resources Department may institute a civil
action in circuit court to enjoin or abate any violation
described in ORS 536.900 (1). The department shall not be
required to furnish a bond in such proceeding.
(2) When the Water Resources Department brings a civil action
under this section, in lieu of imposing a civil penalty under ORS
536.900 to 536.920, the Water Resources Department may recover a
penalty in such civil action in an amount equal to the amount of
civil penalty that would be recovered as provided in ORS 536.900
to 536.920. Any such penalty recovered in a civil action shall be
deposited in the Department of Justice Protection and Education
Revolving Account created pursuant to ORS 180.095.
(3) When the Water Resources Department brings a civil action
under this section, the department also may recover in such civil
action the damages provided for in ORS 536.930. Any damages
recovered in a civil action under this subsection shall be
deposited as provided in ORS 536.935.
(4) Any action authorized by this section shall be tried in the
circuit court of the county in which the violation occurs or in
Marion County.
(5) The Water Resources Commission, the Water Resources
Department, the Water Resources Director and the employees and
duly authorized representatives of the commission and the
department shall not be liable for any damages a defendant may
sustain as a result of an injunction, restraining order or
abatement order issued under this section. + }
SECTION 31. ORS 496.303 is amended to read:
496.303. (1) The Fish and Wildlife Account is established in
the State Treasury, separate and distinct from the General Fund.
All moneys in the account are continuously appropriated to the
State Fish and Wildlife Commission. The Fish and Wildlife Account
shall consist of the moneys in its various subaccounts and any
moneys transferred to the account by the Legislative Assembly.
Unless otherwise specified by law, interest earnings on moneys in
the account shall be paid into the State Treasury and credited to
the State Wildlife Fund.
(2)(a) The Fish Screening Subaccount is established in the Fish
and Wildlife Account. The subaccount shall consist of:
(A) All penalties recovered under ORS 536.900 to 536.920 { + ,
except those required to be deposited in the Department of
Justice Protection and Education Revolving Account pursuant to
section 30 of this 2011 Act + }.
(B) All moneys received pursuant to ORS 498.306.
(C) All gifts, grants and other moneys from whatever source
that may be used to carry out the provisions of ORS 498.306.
(D) All moneys received from the surcharge on angling licenses
imposed by ORS 497.124.
(b) All moneys in the subaccount shall be used to carry out the
provisions of ORS 315.138, 498.306 and 509.620. However, moneys
received from the surcharge on angling licenses imposed by ORS
497.124 shall be expended only to carry out the provisions of law
relating to the screening of water diversions.
(3) The Fish Endowment Subaccount is established in the Fish
and Wildlife Account. The subaccount shall consist of transfers
of moneys authorized by the Legislative Assembly from the State
Wildlife Fund and gifts and grants of moneys from whatever source
for the purpose of paying the expense of maintaining fish
hatcheries operated by the department.
(4) The Migratory Waterfowl Subaccount is established in the
Fish and Wildlife Account. All moneys received by the commission
from the sale of art works and prints related to the migratory
waterfowl stamp shall be deposited in the subaccount. Moneys in
the subaccount may be expended only for activities that promote
the propagation, conservation and recreational uses of migratory
waterfowl and for activities related to the design, production,
issuance and arrangements for sale of the migratory waterfowl
stamps and related art works and prints. Expenditures of moneys
in the subaccount may be made within this state, in other states
or in foreign countries, in such amounts as the commission
determines appropriate. Expenditures in other states and foreign
countries shall be on such terms and conditions as the commission
determines will benefit most directly the migratory waterfowl
resources of this state.
(5) The Halibut Research Subaccount is established in the Fish
and Wildlife Account. Based on the annual number of recreational
halibut anglers, a portion of the moneys derived from the sale of
the salmon, steelhead trout, sturgeon and halibut tag pursuant to
ORS 497.121 shall be credited to the subaccount. Moneys in the
subaccount may be expended only for halibut population studies
and other research.
(6) The Upland Bird Subaccount is established in the Fish and
Wildlife Account. All moneys received by the State Fish and
Wildlife Commission from the sale of upland bird stamps, from the
sale of any art works and prints related to the upland bird stamp
and from private hunting preserve permit fees shall be deposited
in the subaccount. Moneys in the subaccount may be expended only
for promoting the propagation and conservation of upland birds
and the acquisition, development, management, enhancement, sale
or exchange of upland bird habitat, and for activities related to
the design, production, issuance and arrangements for sale of the
upland bird stamps and related art works and prints. Expenditures
of moneys in the subaccount shall be made for the benefit of
programs within this state in such amounts and at such times as
the commission determines appropriate to most directly benefit
the upland bird resources of the state.
(7)(a) The Fish and Wildlife Deferred Maintenance Subaccount is
established in the Fish and Wildlife Account. Interest earnings
on moneys in the subaccount shall be credited to the subaccount.
The subaccount shall consist of moneys authorized by the
Legislative Assembly from the State Wildlife Fund and moneys
obtained by gift, grant, bequest or donation from any other
public or private source.
(b) The principal in the subaccount may be utilized only as
provided in paragraph (c) of this subsection. Interest earnings
on the moneys in the subaccount may be expended only for the
maintenance of fish hatcheries and State Department of Fish and
Wildlife facilities other than administrative facilities located
in Salem.
(c) The department may borrow funds from the principal of the
subaccount to maintain adequate cash flow requirements. However,
moneys borrowed from the principal must be repaid to the
subaccount:
(A) Within six months from the date on which the moneys were
borrowed.
(B) With interest at the standard rate that the State Treasurer
charges to state agencies for other loans. Interest paid under
this subparagraph shall be paid to the subaccount.
(d) For purposes of this subsection, 'principal' means moneys
authorized by the Legislative Assembly for transfer to the
subaccount from the State Wildlife Fund, including any assignment
of earnings on moneys in the fund and other moneys obtained by
gift, grant, bequest or donation deposited into the subaccount.
(8) The Access and Habitat Board Subaccount is established in
the Fish and Wildlife Account. The subaccount shall consist of
moneys transferred to the subaccount pursuant to ORS 496.242.
Moneys in the subaccount may be used for the purposes specified
in ORS 496.242.
(9) The Marine Shellfish Subaccount is established in the Fish
and Wildlife Account. Interest earnings on moneys in the
subaccount shall be credited to the subaccount. All moneys
received by the commission from the sale of resident and
nonresident shellfish licenses pursuant to ORS 497.121 shall be
deposited in the subaccount. Moneys in the subaccount shall be
used for the protection and enhancement of shellfish for
recreational purposes, including shellfish sanitation costs and
the cost of enforcement of wildlife laws pertaining to the taking
of shellfish. The State Fish and Wildlife Director, or a
designee, the Director of Agriculture, or a designee, and the
Superintendent of State Police, or a designee, shall jointly make
a recommendation to the Governor for inclusion in the Governor's
budget beginning July 1 of each odd-numbered year.
(10)(a) The Mountain Sheep Subaccount is established in the
Fish and Wildlife Account, consisting of moneys collected under
ORS 497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of mountain sheep, for research,
development, management, enhancement and sale or exchange of
mountain sheep habitat and for programs within the state that in
the discretion of the commission most directly benefit mountain
sheep resources of this state.
(11)(a) The Antelope Subaccount is established in the Fish and
Wildlife Account, consisting of moneys collected under ORS
497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of antelope, for research,
development, management, enhancement and sale or exchange of
antelope habitat and for programs within the state that in the
discretion of the commission most directly benefit antelope
resources of this state.
(12)(a) The Mountain Goat Subaccount is established in the Fish
and Wildlife Account, consisting of moneys collected under ORS
497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of mountain goats for research,
development, management, enhancement and sale or exchange of
mountain goat habitat and for programs within the state that in
the discretion of the commission most directly benefit mountain
goat resources of this state.
(13)(a) The commission shall keep a record of all moneys
deposited in the Fish and Wildlife Account. The record shall
indicate by separate cumulative accounts the sources from which
the moneys are derived and the individual activity or programs
against which each withdrawal is charged.
(b) Using the record created pursuant to paragraph (a) of this
subsection, the commission shall report, in the budget documents
submitted to the Legislative Assembly, on the application of
investment and interest earnings to the maintenance of fish
hatcheries and other State Department of Fish and Wildlife
facilities.
SECTION 32. ORS 496.303, as amended by section 14, chapter 625,
Oregon Laws 2007, is amended to read:
496.303. (1) The Fish and Wildlife Account is established in
the State Treasury, separate and distinct from the General Fund.
All moneys in the account are continuously appropriated to the
State Fish and Wildlife Commission. The Fish and Wildlife Account
shall consist of the moneys in its various subaccounts and any
moneys transferred to the account by the Legislative Assembly.
Unless otherwise specified by law, interest earnings on moneys in
the account shall be paid into the State Treasury and credited to
the State Wildlife Fund.
(2)(a) The Fish Screening Subaccount is established in the Fish
and Wildlife Account. The subaccount shall consist of:
(A) All penalties recovered under ORS 536.900 to 536.920 { + ,
except those required to be deposited in the Department of
Justice Protection and Education Revolving Account pursuant to
section 30 of this 2011 Act + }.
(B) All moneys received pursuant to ORS 498.306.
(C) All gifts, grants and other moneys from whatever source
that may be used to carry out the provisions of ORS 498.306.
(D) All moneys received from the surcharge on angling licenses
imposed by ORS 497.124.
(b) All moneys in the subaccount shall be used to carry out the
provisions of ORS 498.306 and 509.620. However, moneys received
from the surcharge on angling licenses imposed by ORS 497.124
shall be expended only to carry out the provisions of law
relating to the screening of water diversions.
(3) The Fish Endowment Subaccount is established in the Fish
and Wildlife Account. The subaccount shall consist of transfers
of moneys authorized by the Legislative Assembly from the State
Wildlife Fund and gifts and grants of moneys from whatever source
for the purpose of paying the expense of maintaining fish
hatcheries operated by the department.
(4) The Migratory Waterfowl Subaccount is established in the
Fish and Wildlife Account. All moneys received by the commission
from the sale of art works and prints related to the migratory
waterfowl stamp shall be deposited in the subaccount. Moneys in
the subaccount may be expended only for activities that promote
the propagation, conservation and recreational uses of migratory
waterfowl and for activities related to the design, production,
issuance and arrangements for sale of the migratory waterfowl
stamps and related art works and prints. Expenditures of moneys
in the subaccount may be made within this state, in other states
or in foreign countries, in such amounts as the commission
determines appropriate. Expenditures in other states and foreign
countries shall be on such terms and conditions as the commission
determines will benefit most directly the migratory waterfowl
resources of this state.
(5) The Halibut Research Subaccount is established in the Fish
and Wildlife Account. Based on the annual number of recreational
halibut anglers, a portion of the moneys derived from the sale of
the salmon, steelhead trout, sturgeon and halibut tag pursuant to
ORS 497.121 shall be credited to the subaccount. Moneys in the
subaccount may be expended only for halibut population studies
and other research.
(6) The Upland Bird Subaccount is established in the Fish and
Wildlife Account. All moneys received by the State Fish and
Wildlife Commission from the sale of upland bird stamps, from the
sale of any art works and prints related to the upland bird stamp
and from private hunting preserve permit fees shall be deposited
in the subaccount. Moneys in the subaccount may be expended only
for promoting the propagation and conservation of upland birds
and the acquisition, development, management, enhancement, sale
or exchange of upland bird habitat, and for activities related to
the design, production, issuance and arrangements for sale of the
upland bird stamps and related art works and prints. Expenditures
of moneys in the subaccount shall be made for the benefit of
programs within this state in such amounts and at such times as
the commission determines appropriate to most directly benefit
the upland bird resources of the state.
(7)(a) The Fish and Wildlife Deferred Maintenance Subaccount is
established in the Fish and Wildlife Account. Interest earnings
on moneys in the subaccount shall be credited to the subaccount.
The subaccount shall consist of moneys authorized by the
Legislative Assembly from the State Wildlife Fund and moneys
obtained by gift, grant, bequest or donation from any other
public or private source.
(b) The principal in the subaccount may be utilized only as
provided in paragraph (c) of this subsection. Interest earnings
on the moneys in the subaccount may be expended only for the
maintenance of fish hatcheries and State Department of Fish and
Wildlife facilities other than administrative facilities located
in Salem.
(c) The department may borrow funds from the principal of the
subaccount to maintain adequate cash flow requirements. However,
moneys borrowed from the principal must be repaid to the
subaccount:
(A) Within six months from the date on which the moneys were
borrowed.
(B) With interest at the standard rate that the State Treasurer
charges to state agencies for other loans. Interest paid under
this subparagraph shall be paid to the subaccount.
(d) For purposes of this subsection, 'principal' means moneys
authorized by the Legislative Assembly for transfer to the
subaccount from the State Wildlife Fund, including any assignment
of earnings on moneys in the fund and other moneys obtained by
gift, grant, bequest or donation deposited into the subaccount.
(8) The Access and Habitat Board Subaccount is established in
the Fish and Wildlife Account. The subaccount shall consist of
moneys transferred to the subaccount pursuant to ORS 496.242.
Moneys in the subaccount may be used for the purposes specified
in ORS 496.242.
(9) The Marine Shellfish Subaccount is established in the Fish
and Wildlife Account. Interest earnings on moneys in the
subaccount shall be credited to the subaccount. All moneys
received by the commission from the sale of resident and
nonresident shellfish licenses pursuant to ORS 497.121 shall be
deposited in the subaccount. Moneys in the subaccount shall be
used for the protection and enhancement of shellfish for
recreational purposes, including shellfish sanitation costs and
the cost of enforcement of wildlife laws pertaining to the taking
of shellfish. The State Fish and Wildlife Director, or a
designee, the Director of Agriculture, or a designee, and the
Superintendent of State Police, or a designee, shall jointly make
a recommendation to the Governor for inclusion in the Governor's
budget beginning July 1 of each odd-numbered year.
(10)(a) The Mountain Sheep Subaccount is established in the
Fish and Wildlife Account, consisting of moneys collected under
ORS 497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of mountain sheep, for research,
development, management, enhancement and sale or exchange of
mountain sheep habitat and for programs within the state that in
the discretion of the commission most directly benefit mountain
sheep resources of this state.
(11)(a) The Antelope Subaccount is established in the Fish and
Wildlife Account, consisting of moneys collected under ORS
497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of antelope, for research,
development, management, enhancement and sale or exchange of
antelope habitat and for programs within the state that in the
discretion of the commission most directly benefit antelope
resources of this state.
(12)(a) The Mountain Goat Subaccount is established in the Fish
and Wildlife Account, consisting of moneys collected under ORS
497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of mountain goats for research,
development, management, enhancement and sale or exchange of
mountain goat habitat and for programs within the state that in
the discretion of the commission most directly benefit mountain
goat resources of this state.
(13)(a) The commission shall keep a record of all moneys
deposited in the Fish and Wildlife Account. The record shall
indicate by separate cumulative accounts the sources from which
the moneys are derived and the individual activity or programs
against which each withdrawal is charged.
(b) Using the record created pursuant to paragraph (a) of this
subsection, the commission shall report, in the budget documents
submitted to the Legislative Assembly, on the application of
investment and interest earnings to the maintenance of fish
hatcheries and other State Department of Fish and Wildlife
facilities.
{ +
STATE DEPARTMENT OF AGRICULTURE + }
SECTION 33. ORS 561.280 is amended to read:
561.280. In addition to the other remedies provided by law, the
State Department of Agriculture may apply to the circuit court
for, and such court shall have jurisdiction upon a summary
hearing and for cause shown to grant, a temporary or permanent
injunction restraining any person from violating any provision of
a law under the jurisdiction of the department. { + The
department may not be required to furnish a bond in such
proceeding. Any action authorized by this section must be tried
in the circuit court of the county in which the violation occurs
or in Marion County. The State Board of Agriculture, the
department, the Director of Agriculture and the employees and
duly authorized representatives of the department may not be held
liable for any damages a defendant may sustain as a result of an
injunction, restraining order or other order issued under this
section. + }
SECTION 34. ORS 568.933 is amended to read:
568.933. (1) In addition to any other liability or penalty
provided by law, the State Department of Agriculture may impose a
civil penalty on a landowner of lands within an agricultural or
rural area subject to a water quality management plan for failure
to comply with rules implementing the plan.
(2) The department may not impose a civil penalty on a
landowner for a first violation under this section unless the
department:
(a) Has notified the landowner of the violation in a writing
that describes, with reasonable specificity, the factual basis
for the department's determination that a violation has occurred;
and
(b) Has prescribed a reasonable time for the landowner to
correct the violation that may not exceed 30 days after the first
notice of a violation, unless the violation requires more than 30
days to correct, in which case the department shall specify a
reasonable period of time to correct the violation in a plan of
correction issued to the landowner.
(3) A civil penalty imposed under this section may not exceed:
(a) $2,500 for a first violation; or
(b) $10,000 for a second or subsequent violation.
(4) For purposes of this section, each day of a violation
continuing after any period of time of correction set by the
department is a separate violation unless the department finds
that a different period of time is more appropriate to describe a
specific violation event.
(5) The landowner to whom a notice of violation or a notice of
civil penalty is addressed shall have 30 days from the date of
receipt of the notice in which to make written application for a
hearing before the department.
(6) In imposing a penalty under this section, the department
shall consider the following factors:
(a) The past history of the landowner incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct a violation.
(b) Any prior violations of rules, regulations or statutes
pertaining to a water quality management plan.
(c) The gravity and magnitude of the violation.
(d) Whether the violation was repeated or continuous.
(e) Whether the cause of the violation was an unavoidable
accident, negligence or an intentional act.
(f) The violator's efforts to correct the violation.
(g) The immediacy and extent to which the violation threatens
the public health or safety.
(7) A notice of violation or period to comply shall not be
required under subsection (2) of this section if:
(a) The violation is intentional; or
(b) The landowner has received a previous notice of the same or
similar violation.
{ + (8) When the State Department of Agriculture brings a
civil action pursuant to ORS 561.280 to enjoin the violation of
any rules adopted under ORS 561.191 or 568.912, in lieu of
imposing civil penalties under this section, the State Department
of Agriculture may recover a penalty in such civil action in an
amount equal to the amount of civil penalty that would be
recovered as provided in this section. + }
{ - (8) - } { + (9)(a) Except as provided in paragraph (b)
of this subsection, + } the department shall deposit any civil
penalty recovered under this section into a special subaccount in
the Department of Agriculture Service Fund. Moneys in the
subaccount are continuously appropriated to the department to be
used for educational programs on water quality management and to
provide funding for water quality management demonstration
projects.
{ + (b) Any penalty recovered in a civil action under this
section shall be deposited in the Department of Justice
Protection and Education Revolving Account created pursuant to
ORS 180.095. + }
{ - (9) - } { + (10) + } The State Department of
Agriculture shall reduce the amount of any civil penalty imposed
under this section by the amount of any civil penalty imposed by
the Environmental Quality Commission or the Department of
Environmental Quality for violations of water quality rules or
standards, if the latter penalty is imposed on the same person
and is based on the same violation.
SECTION 35. ORS 634.905 is amended to read:
634.905. (1) { - Any civil penalty - } { + Subject to
subsection (3) of this section, civil penalties + } under ORS
634.900 shall be imposed as provided in ORS 183.745.
(2) Notwithstanding ORS 183.745, the person to whom the notice
is addressed shall have 10 days from the date of service of the
notice in which to make written application for a hearing before
the Director of Agriculture.
{ + (3) When the State Department of Agriculture brings a
civil action pursuant to ORS 561.280 to enjoin the violation of
ORS 634.372, in lieu of imposing civil penalties under ORS
634.900, the department may recover a penalty in such civil
action in an amount equal to the amount of civil penalty
authorized to be recovered under ORS 634.900. In setting the
amount of a penalty for a particular violation, the circuit court
shall consider any schedule adopted under ORS 634.915 (1) and the
factors described in ORS 634.915 (2). + }
SECTION 36. ORS 634.925 is amended to read:
634.925. { + (1) Except as provided in subsection (2) of this
section, + } all penalties recovered under ORS 634.900 to 634.915
shall be deposited by the State Treasurer in the Department of
Agriculture Service Fund. Such moneys are continuously
appropriated to the State Department of Agriculture to be used
for information and education related to pesticide application.
{ + (2) Any penalty recovered in a civil action under ORS
634.905 (3) shall be deposited in the Department of Justice
Protection and Education Revolving Account created pursuant to
ORS 180.095. + }
{ +
MISCELLANEOUS + }
SECTION 37. { + (1) The amendments to ORS 137.103, 137.106 and
137.295 by sections 2, 2a and 3 of this 2011 Act apply to crimes
committed on or after the effective date of this 2011 Act.
(2) Sections 20, 22, 28 and 30 of this 2011 Act and the
amendments to ORS 196.890, 196.895, 390.674, 390.992, 468.135,
469.085, 517.992, 568.933 and 634.905 by sections 4 to 6, 9, 12,
15, 17, 24, 34 and 35 of this 2011 Act apply to violations
occurring on or after the effective date of this 2011 Act.
(3) The amendments to ORS 468.090 by section 13 of this 2011
Act apply to complaints filed with the Department of
Environmental Quality on or after the effective date of this 2011
Act. + }
SECTION 38. { + The unit captions used in this 2011 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act. + }
SECTION 39. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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