Confidentiality and Inadmissibility of Mediation Communications


Published: 2015

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DEPARTMENT OF ENVIRONMENTAL QUALITY

 

DIVISION 11
RULES OF GENERAL APPLICABILITYAND ORGANIZATION
Confidentiality and Inadmissibility of Mediation Communications

340-011-0003
Confidentiality and Inadmissibility of Mediation Communications
(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.
(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in 192.410 to 192.505.
(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.
(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.
(5) Mediations Excluded. Sections (6)-(10) of this rule do not apply to:
(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed; or
(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters;
(c) Mediation in which the only parties are public bodies;
(d) Mediation involving two or more public bodies and a private party if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential; or
(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.
(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:
(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) - (d), (j) - (l) or (o) - (p) of section (9) of this rule.
(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8) - (9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.
(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or nondiscoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator or an authorized agency representative must also sign the agreement. The parties' agreement to participate in a confidential mediation must be in substantially the following form. This form may be used separately or incorporated into an "agreement to mediate." [Form not included. See ED. NOTE.]
(9) Exceptions to confidentiality and inadmissibility.
(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.
(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.
(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.
(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.
(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.
(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation.
(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.
(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.
(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.
(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:
(A) A request for mediation; or
(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation; or
(C) A final offer submitted by the parties to the mediator pursuant to ORS 243.712; or
(D) A strike notice submitted to the Employment Relations Board.
(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.
(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:
(A) Attorney-client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege; or
(B) Attorney work product prepared in anticipation of litigation or for trial; or
(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency, or
(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation; or
(E) Settlement concepts or proposals, shared with the mediator or other parties.
(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the Agency Director determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law.
(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under 17.095 or state or federal law requires the terms to be confidential.
(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).
(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.
[ED. NOTE: The Form referenced in this rule is not printed in the OAR Compilation. Copies are available from the agency.]
Stat. Auth.: ORS 36.224

Stats. Implemented: ORS 36.224, ORS 36.228, ORS 36.230 & ORS 36.232

Hist.: DEQ 18-2000, f. & cert. ef. 12-11-00
340-011-0004
Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications
(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials. This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed.
(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.
(3) Nothing in this rule affects any confidentiality created by other law.
(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.
(5) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:
(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) or (h) - (j) of section (7) of this rule.
(6) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced into evidence by the parties or the mediator in any subsequent proceeding so long as:
(a) The parties to the mediation and the agency have agreed in writing to the confidentiality of the mediation; and
(b) The person agreeing to the confidentiality of the mediation on behalf of the agency:
(A) Is neither a party to the dispute nor the mediator; and
(B) Is designated by the agency to authorize confidentiality for the mediation; and
(C) Is at the same or higher level in the agency than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the agency, unless the agency head or member of the governing board is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor's designee.
(7) Exceptions to confidentiality and inadmissibility.
(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.
(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.
(d) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.
(e) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.
(f) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.
(g) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.
(h) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.
(i) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.
(j) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).
(8) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the agency so agree in writing. Any term of an agreement that requires an expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling or purchases of equipment that remain the property of the agency, may not be made confidential.
(9) When a mediation is subject to section (6) of this rule, the agency will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.
Stat. Auth.: ORS 36.224

Stats. Implemented: ORS 36.230(4)

Hist.: DEQ 18-2000, f. & cert. ef. 12-11-00

Rules of Practice and Procedure

340-011-0005
Definitions
Unless otherwise defined in this division,
the words and phrases used in this division have the same meaning given them in
ORS 183.310, the rules of the Office of Administrative Hearings, the Model Rules
or other divisions in Oregon Administrative Rules, chapter 340, as context requires.
(1) "Commission" means the
Environmental Quality Commission.
(2) "DEQ" means the Department
of Environmental Quality.
(3) "Director" means the
director of DEQ or the director's authorized delegates.
(4) " Rules of the Office
of Administrative Hearings" means the Attorney General's Rules, OAR 137-003-0501
through 137-003-0700.
(5) “Model Rules”
or “Uniform Rules” means the Attorney General’s Uniform and Model
Rules of Procedure, OAR chapter 137, division 001 (excluding 137-001-0008 through
137-001-0009), chapter 137, division 003, and chapter 137, division 004, as in effect
on January 1, 2006.
(6) "Participant" means the
person named in the notice of a right to a contested case hearing and requested
a hearing, a person granted either party or limited party status in the contested
case under OAR 137-003-0535, an agency participating in the contested case under
137-003-0540, and DEQ.
(7) "Formal Enforcement Action"
has the same meaning as defined in OAR 340, division 012.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.341
Hist.: DEQ 69(Temp), f. &
ef. 3-22-74; DEQ 72, f. 6-5-74, ef. 6-25-74; DEQ 78, f. 9-6-74, ef. 9-25-74; DEQ
122, f. & ef. 9-13-76; DEQ 25-1979, f. & ef. 7-5-79; DEQ 7-1988, f. &
cert. ef. 5-6-88; DEQ 10-1997, f. & cert. ef. 6-10-97; DEQ 3-1998, f. &
cert. ef. 3-9-98; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00;
DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 10-2002, f. & cert. ef. 10-8-02;
DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 5-2008, f. & cert. ef. 3-20-08;
DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0007 [Renumbered to 340-014-0022]
340-011-0009
Incorporation of Attorney General’s Uniform and Model Rules
The following Attorney General’s Uniform and Model Rules of Procedure are adopted and incorporated into this Division, except as otherwise provided in this Chapter: OAR chapter 137, division 001 (excluding 137-001-0008 through 137-001-0009), OAR chapter 137, division 003, and OAR chapter 137, division 004, as in effect on January 1, 2006.
Stat. Auth.: ORS 468.020, 183.341, 183,452

Stats. Implemented: ORS 468A.020, 468.070, 468.090 - 0140, 183.341, 183.452

Hist.: DEQ 5-2008, f. & cert. ef. 3-20-08

Rulemaking

340-011-0010
Notice of Rulemaking
(1) Notice of intent to adopt, amend, or repeal any rule(s) shall be in compliance with applicable state and federal laws and rules, including ORS Chapter 183, (1) Notice of intent to adopt, amend,
or repeal any rule(s) shall be in compliance with applicable state and federal laws
and rules, including ORS Chapter 183, 468A.327 and sections (2) and (3) of this
rule.
(2) To the extent required
by ORS Chapter 183 or 468A.327, before adopting, amending or repealing any permanent
rule, DEQ will give notice of the rulemaking:
(a) In the Secretary of State's
Bulletin referred to in ORS 183.360 at least 14 days before a hearing;
(b) By providing a copy of
the notice to persons on DEQ's mailing lists established pursuant to ORS 183.335(8),
to the legislators specified in 183.335(15), and to the persons or association that
requested the hearing (if any):
(A) At least 21 days before
a hearing granted or otherwise scheduled pursuant to ORS 183.335(3); or
(B) At least 14 days before
a hearing before the Commission if granted or otherwise scheduled under OAR 340-011-0029(3);
(c) In addition to the news
media on the list referenced in (b), to other news media the Director may deem appropriate.
(3) In addition to meeting
the requirements of ORS 183.335(1), the notice provided pursuant to section (1)
of this rule shall contain the following:
(a) Where practicable and
appropriate, a copy of the rule proposed to be adopted, amended or repealed with
changes highlighted;
(b) Where the proposed rule
is not set forth verbatim in the notice, a statement of the time, place, and manner
in which a copy of the proposed rule may be obtained and a description of the subject
and issues involved in sufficient detail to inform a person that the person’s
interest may be affected;
(c) If a hearing has been
granted or scheduled, whether the presiding officer will be the Commission, a member
of the Commission, an employee of DEQ, or an agent of the Commission;
(d) The manner in which persons
not planning to attend the hearing may offer for the record written comments on
the proposed rule.
Stat. Auth.: ORS 183 & ORS 468,
468A.327
Stats. Implemented: ORS 183.025
& 183.335
Hist.: DEQ 69(Temp), f. &
ef. 3-22-74; DEQ 72, f. 6-5-74, ef. 6-25-74; DEQ 122, f. & ef. 9-13-76; DEQ
1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert.
ef. 7-21-00; DEQ 1-2008, f. & cert. ef. 2-25-08; DEQ 1-2014, f. & cert.
ef. 1-6-14
340-011-0024
Rulemaking Process
The rulemaking process shall be governed
by the Attorney General's Model Rules, OAR 137-001-0005 through 137-001-0060. As
used in those rules, the terms, "agency," "governing body," and "decision maker"
generally should be interpreted to mean "Commission." The term "agency" may also
be interpreted to be the "DEQ" where context requires.
Stat. Auth.: ORS 183 & 468
Stats. Implemented: ORS 183.025
& 183.335
Hist.: DEQ 7-1988, f. &
cert. ef. 5-6-88 (and corrected 9-30-88); DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0029
Policy on Disclosure of the Relationship
Between Proposed Rules and Federal Requirements
(1) In order to clearly identify the
relationship between the proposed adoption, amendment or repeal of rules and applicable
federal requirements, and to facilitate consideration and rulemaking by the Environmental
Quality Commission, DEQ, must:
(a) Prepare a statement of
whether the intended action imposes requirements different from, or in addition
to, any applicable federal requirements and, if so, a written explanation of:
(A) The public health, environmental,
scientific, economic, technological, administrative or other reasons, as appropriate,
for differing from or adding to applicable federal requirements; and
(B) Alternatives considered,
if any, and the reasons that the alternatives were not pursued.
(b) Include the statement
in the notice of intended action pursuant to ORS 183.335(1) and any additional notice
given prior to a rulemaking hearing pursuant to OAR 340-011-0010(2).
(c) Include the statement
in the final staff report presented to the Commission when rule adoption, amendment
or repeal is recommended.
(2) The statement prepared
under section (1)(a) of this rule must be based upon information available to DEQ
at the time the statement is prepared.
(3) An opportunity for an
oral hearing before the Commission regarding the statement prepared under section
(1)(a) of this rule must be granted, and notice given in accordance with OAR 340-011-0010(2)(b)(B),
if:
(a) The rulemaking proposal
applies to a source subject to the Oregon Title V Operating Permit Fees under OAR
340 division 220;
(b) The request for a hearing
is received within 14 days after the notice of intended action is issued under ORS
183.335(1), from 10 persons or from an association having no fewer than 10 members;
(c) The request describes
how the persons or association that made the request will be directly harmed by
the rulemaking proposal; and
(d) The notice of intended
action under ORS 183.335(1) does not indicate that an oral hearing will be held
before the Commission.
(4) Nothing in this rule
applies to temporary rules adopted pursuant to OAR 340-011-0042.
(5) The Commission delegates
to DEQ the authority to prepare and issue any statement required under ORS 468A.327.
Stat. Auth.: ORS 468.020, ORS 468A.327
Stats. Implemented: ORS 183.025
& 183.335
Hist.: DEQ 28-1994, f. &
cert. ef. 11-17-94; DEQ 1-2008, f. & cert. ef. 2-25-08; DEQ 1-2014, f. &
cert. ef. 1-6-14
340-011-0035 [Renumbered to 340-011-0540]
340-011-0046
Petition to Promulgate, Amend, or Repeal Rule: Contents of Petition, Filing of Petition
The filing of petitions for rulemaking
and action thereon by the Commission shall be in accordance with the Attorney General's
Uniform Rule of Procedure set forth in OAR 137-001-0070. As used in that rule, the
term "agency" generally refers to the Commission but may refer to DEQ if context
requires.
Stat. Auth.: ORS 183.335 & 468.020
Stats. Implemented: ORS 183.390
Hist.: DEQ 7-1988, f. &
cert. ef. 5-6-88; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0052
Temporary Rules
The Commission may adopt temporary rules
and file the same, along with supportive findings, pursuant to ORS 183.335(5) and
183.355(2) and the Attorney General’s Model rule OAR 137-001-0080.
Stat. Auth.: ORS 183.335 & 468.020
Stats. Implemented: ORS 183.025
& 183.335
Hist.: DEQ 122, f. &
ef. 9-13-76; DEQ 7-1988, f. & cert. ef. 5-6-88
340-011-0053
Periodic Rule Review
Periodic review of agency rules shall
be accomplished once every five years in accordance with ORS 183.405 and the Attorney
General's Model Rule OAR 137-001-0100.
Stat. Auth.: ORS 183.335 & 468.020 \
Stats. Implemented: ORS 183.405
Hist.: DEQ 7-1988, f. &
cert. ef. 5-6-88; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0061
Declaratory Ruling: Institution of Proceedings, Consideration of Petition and Disposition of Petition
The declaratory ruling process shall
be governed by the Attorney General's Uniform Rules of Procedure, OAR 137-002-0010
through 137-002-0060. As used in those rules, the terms "agency," "governing body,
and "decision maker" generally should be interpreted to mean "Commission." The term
"agency" may also be interpreted to be the "DEQ" where context requires.
Stat. Auth.: ORS 183.335 & 468.020
Stats. Implemented: ORS 183.410
Hist.: DEQ 7-1988, f. &
cert. ef. 5-6-88; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0097 [Renumbered to 340-011-0525]
340-011-0098 [Renumbered to 340-011-0500]
340-011-0103 [Renumbered to 340-011-0510]
340-011-0106 [Renumbered to 340-011-0515]
340-011-0122 [Renumbered to 340-011-0560]
340-011-0124 [Renumbered to 340-011-0565]
340-011-0131 [Renumbered to 340-011-0570]
340-011-0132 [Renumbered to 340-011-0575]
340-011-0136 [Renumbered to 340-011-0505]

Public Records Access and Reproduction

340-011-0310
Purpose
Increased public involvement and awareness
of environmental issues has placed greater demands on viewing and copying DEQ records.
OAR 340-011-0310 et seq. allows DEQ to recover its costs for providing these services,
as authorized by Oregon statute. Furthermore, these rules serve to ensure that all
DEQ records remain available for viewing and intact for future use.
Stat. Auth.: ORS 192.410 - 192.505 &
468.020
Stats. Implemented: ORS 192.410
- 192.440
Hist.: DEQ 23-1994, f. &
cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. &
cert. ef. 1-6-14
340-011-0320
Scope
With some exceptions prescribed by law,
every person has the right to inspect public records of a state agency in this state.
State agencies are allowed to take reasonable measures to ensure the integrity of
records and to maintain office efficiency. The ability of the public to view public
records is limited by reasonable restrictions and other such exemptions from disclosure
that may be prescribed by law or rule. Statutory guidance for this rule includes:
ORS 468.020; 192.410 to 192.505.
Stat. Auth.: ORS 192.410 - 192.505 &
468.020
Stats. Implemented: ORS 192.410
- 192.505
Hist.: DEQ 23-1994, f. &
cert. ef. 10-21-94
340-011-0330
Requests for Review or to Obtain
Copies of Public Records
(1) The right to review records includes
the right to review the original record where practicable. It does not provide the
right to the requestor to locate the record himself or to review the original record
when it contains exempt material.
(2) Request to review or
copy public records should be made to, and will be handled by, the appropriate DEQ
staff maintaining the records requested. For questions, contact DEQ's general information
number listed in the phone book and website at www.oregon.gov/deq.
(3) Requests for DEQ records
should be as specific as possible, including type of record, subject matter, approximate
record date, and relevant names of parties. Whenever possible, the request should
include the site location or county of the facility if known. If the request is
unclear or overly burdensome, DEQ may request further clarification of the request.
If DEQ cannot identify specific records responsive to a record request, DEQ may
provide general files or distinct sections of records that are likely to contain
the requested records.
(4) Requests to either review
or obtain copies of records may be made in writing, by telephone or in-person. DEQ
may require a request to be made in writing if needed for clarification or specification
of the record request.
(a) Each DEQ office will
establish daily hours during which the public may review DEQ's records. The hours
maintained in each office will be determined by staff and equipment available to
accommodate record review and reproduction.
(b) Pursuant to ORS 192.430(1)
and this rule, each DEQ office shall designate and provide a supervised space, if
available, for viewing records. This space will accommodate at least one reviewer
at a time.
(c) DEQ accommodates public
records requests from persons with disabilities in accordance with the Americans
with Disabilities Act.
(d) DEQ's ability to accommodate
in-person requests may be limited by staff and equipment availability. Additionally
prior to making records available for public review, DEQ will ascertain whether
the record requested is exempt from public disclosure under ORS chapter 192 and
other applicable law.
(5) Time to provide requested
records: DEQ will respond to a record request as quickly as reasonable. This time
frame will vary depending on the volume of records requested, staff availability
to respond to the record request, the difficulty in determining whether any of the
records are exempt from disclosure, and the necessity of consulting with legal counsel.
If DEQ determines that it will require more than 30 days to respond to a record
request, it will inform the requestor of the estimated time necessary to comply
with the record request.
Stat. Auth.: ORS 192.410 - 192.505 &
468.020
Stats. Implemented: ORS 192.420
& 192.430
Hist.: DEQ 23-1994, f. &
cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. &
cert. ef. 1-6-14
340-011-0340
Costs for Record Review and Copying
(1) Outside Copying/Loaning Records
— In order to protect the integrity of DEQ records, no records may be loaned
or taken off-premises by non- DEQ staff unless DEQ has a contract with the person
removing the records.
(2) Hardcopy Records:
(a) Persons Requesting to
Make Copies Themselves: Requestors are allowed to use their own equipment to make
copies of requested records depending on the facilities available within each DEQ
office. Use of non-DEQ equipment within a DEQ office will not be allowed without
staff being present. Staff time will be charged at $30.00 per hour. DEQ office may
determine that use of non-DEQ equipment will not be allowed based on:
(A) Staff time available
to oversee the copying; and
(B) Space limitations for
the equipment.
(b) Reimbursement of DEQ
staff time: An hourly rate of $30.00 will be assessed for any staff time greater
than 15 minutes spent locating records, reviewing records to delete exempt material,
supervising the inspection of records, copying records, certifying records, and
mailing records. DEQ may charge for the cost of searching for records regardless
of whether DEQ was able to locate the requested record.
(c) Reimbursement of Department
of Justice Attorney General time: If necessary to respond to a record request, an
hourly rate (as of August 2013, $159 for attorneys, $79 for paralegals) will be
assessed for any Department of Justice time spent reviewing records to delete exempt
material.
(d) Copy Charges: The fee
schedule listed below is reasonably calculated to reimburse DEQ for the actual costs
of making records available and providing copies of records. The per-page copy charge
includes 15 minutes of staff time for routine file searches.
(A) Department Administrative
Rule sets:
(i) Complete set: $35.00;
(ii) Update Service: $115.00
(per annum);
(iii) Individual Divisions:
$0.05 (per page).
(B) Hardcopy (black and white,
letter or legal size): $0.25 per page. Costs for other sized or color copies will
be DEQ's actual cost plus staff time.
(C) Additional charges:
(i) Fax charges: $0.50 (per
page);
(ii) Document certification:
$2.50 (per certificate);
(iii) Invoice processing:
$5.00 (per invoice);
(iv) Express Mailing: actual
or minimum of $9.00;
(v) Archive Retrieval: actual
or minimum of $10.00;
(vi) Onsite wastewater management
program public record request: $7.50 base fee.
(e) Whenever reasonable,
DEQ will provide double-sided copies of a record request. Each side of a double-sided
copy will constitute one page.
(3) Electronic Records:
(a) Copies of requested electronic
records may be provided in the format or manner maintained by DEQ. DEQ will perform
all downloading, reproducing, formatting and manipulating of records. Public access
to DEQ computer terminals may be possible as such terminals become available in
the future.
(b) Reimbursement of DEQ
staff time: An hourly rate of $40.00 will be assessed for any staff time spent locating
records, reviewing records to delete exempt material, supervising the inspection
of records, downloading and manipulating records, certifying records and mailing
records. DEQ may charge for the cost of searching for records regardless of whether
DEQ was able to locate the requested records.
(c) Reimbursement of Department
of Justice Attorney General time: If necessary to respond to a record request, an
hourly rate (as of August 2013, $159 for attorneys, $79 for paralegals)will be assessed
for any Department of Justice time spent reviewing records to delete exempt material.
(d) Hardcopy printouts (black
and white; legal or letter size): $0.25 per page. Costs for other sized or color
copies will be DEQ's actual cost plus staff time.
(e) Compact disks (CDs) and
digital video disks (DVDs): $3.00 each.
(f) Additional charges:
(A) Fax charges: $0.50 (per
page);
(B) Document certification:
$2.50 (per certificate);
(C) Invoice processing: $5.00
(per invoice);
(D) Express Mailing: actual
or minimum of $9.00;
(E) Archive Retrieval: actual
or minimum of $10.00.
Stat. Auth.: ORS 192.410 - 192.505 &
468.020
Stats. Implemented: ORS 192.440
Hist.: DEQ 23-1994, f. &
cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. &
cert. ef. 1-6-14
340-011-0360
Collecting Fees
(1) Method: Payment may be made in the
form of cash, check, or money order. Make checks payable to "Department of Environmental
Quality."
(2) Billing: Requestors wishing
to be billed may make such arrangements at the time of record request. Purchase
orders will only be accepted for orders $10.00 or more.
(3) Receipts: A receipt may
be given, upon request, for charges incurred.
(4) Reasonable costs associated
with responding to a request to review or copy a record not specifically addressed
by these rules may be assessed including the actual costs for DEQ to have another
person make copies of the records.
(5) Prepayment of Copy Costs:
Depending on the volume of the records requested, the difficulty in determining
whether any of the records are exempt from disclosure, and the necessity of consulting
with legal counsel, DEQ may preliminarily estimate the charges for responding to
a record request and require prepayment of the estimated charges. If the actual
charges are less than the prepayment, any overpayment will be refunded to the requestor.
Stat. Auth.: ORS 192.410 - 192.505 &
468.020
Stats. Implemented: ORS 192.440
Hist.: DEQ 23-1994, f. &
cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. &
cert. ef. 1-6-14
340-011-0370
Certification of Copies of Records
Certification of both hard and electronic
copies of records will be provided. DEQ will only certify that on the date copied,
the copy was a true and correct copy of the original record. DEQ cannot certify
as to any subsequent changes or manipulation of the record.
Stat. Auth.: ORS 192.410 - 192.505 &
468.020
Stats. Implemented: ORS 192.440
Hist.: DEQ 23-1994, f. &
cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. &
cert. ef. 1-6-14
340-011-0380
Fee Waivers and Reductions
(1) Ordinarily there will be no charge
for one copy of a public record:
(a) When the material requested
is currently being distributed as part of the public participation process such
as a news release or public notice.
(b) When the material requested
has been distributed through mass mailing and is readily available to DEQ at the
time of request.
(c) When the records request
is made by a local, state, or federal public/governmental entity or a representative
of a public/governmental entity acting in a public function or capacity. Even if
a person qualifies under this subsection, DEQ may still charge for either record
review or copying based on the following factors:
(A) Any financial hardship
on DEQ;
(B) The extent of time, expense
and interference with DEQ's regular business;
(C) The volume of the records
requested; or
(D) The necessity to segregate
exempt from non-exempt materials.
(2) Public Interest Annual
Fee Waivers:
(a) An approved annual fee
waiver allows the requestor to either review or obtain one copy of a requested record
at no charge. Fee waivers are effective for a one year period.
(b) A person including members
of the news media and non-profit organizations may be entitled to an annual fee
waiver provided that a Fee Waiver Form is completed and approved by DEQ. The form
must identify the person's specific ability to disseminate information of the kind
maintained by DEQ to the general public and that such information is generally in
the interest of and benefit to the public within the meaning of the Public Records
Law. Additional information may be requested by DEQ prior to granting any fee waiver.
(c) Even if a person has
a fee waiver, DEQ may charge for either record review or copying based on the following
factors:
(A) Any financial hardship
on DEQ;
(B) The extent of time, expense
and interference with DEQ's regular business;
(C) The volume of the records
requested;
(D) The necessity to segregate
exempt from non-exempt materials; and
(E) The extent to which the
record request does not further the public interest or the particular needs of the
requestor.
(3) Case-by-Case Waivers
or Reductions: A person that does not request, or is not approved for an annual
waiver, may request a waiver or a reduction of record review or reproduction costs
on a case-by-case basis.
Stat. Auth.: ORS 192.410 - 192.505 &
468.020
Stats. Implemented: ORS 192.440
Hist.: DEQ 23-1994, f. &
cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. &
cert. ef. 1-6-14
340-011-0390
Exempt Records
All records held by DEQ are public records
unless exempt from disclosure under ORS Chapter 192 or other applicable law. If
DEQ determines that all or part of a requested public record is exempt from disclosure,
DEQ will notify the requestor and the reasons why DEQ considers the record exempt.
Stat. Auth.: ORS 192.410 - 192.505 &
468.020
Stats. Implemented: ORS 192.501
& 192.502
Hist.: DEQ 23-1994, f. &
cert. ef. 10-21-94; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2014, f. &
cert. ef. 1-6-14

Contested Cases

340-011-0500
Contested Case Proceedings Generally
Except as otherwise provided in OAR
340, division 011, contested cases will be governed by the Rules of the Office of
Administrative Hearings, specifically OAR 137-003-0501 through 0700.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.341
Hist.: DEQ 7-1988, f. &
cert. ef. 5-6-88; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00;
DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0098 by DEQ 18-2003,
f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0505
Powers of the Director
The director, on behalf of the Commission,
may execute
(1) Any written order which
has been consented to in writing by the participants;
(2) Formal enforcement actions;
(3) Orders upon default;
and
(4) Any other final order
implementing any action taken by the Commission on any matter.
Stat. Auth.: ORS 183.335 & 468.020
Stats. Implemented: ORS 468.045
& 468.130
Hist.: DEQ 122, f. &
ef. 9-13-76; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000,
f. & cert. ef. 7-21-00; Renumbered from 340-011-0136 by DEQ 18-2003, f. &
cert. ef. 12-12-03
340-011-0510
Agency Representation by Environmental
Law Specialist
(1) Environmental Law Specialists, and
other DEQ personnel as approved by the director, are authorized to appear on behalf
of DEQ and commission in contested case hearings involving formal enforcement actions
issued under OAR 340, division 012, and issuance, revocation, modification, or denial
of licenses, permits, certifications, or other authorizations, including general
permit coverage or registrations.
(2) Environmental Law Specialists
or other approved personnel may not present legal argument as defined under OAR
137-003-0545 on behalf of DEQ or commission in contested case hearings.
(3) When DEQ determines it
is necessary to consult with the Attorney General's office, an administrative law
judge will provide a reasonable period of time for an agency representative to consult
with the Attorney General's office and to obtain either written or oral legal argument.
Stat. Auth.: ORS 183.341, 183.452 &
468.020
Stats. Implemented: ORS 183.452
Hist.: DEQ 16-1991, f. &
cert. ef. 9-30-91; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00;
DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0103 by DEQ 18-2003,
f. & cert. ef. 12-12-03; DEQ 5-2008, f. & cert. ef. 3-20-08; DEQ 1-2014,
f. & cert. ef. 1-6-14
340-011-0515
Authorized Representative of Respondent other than a Natural Person in a Contested Case Hearing
A corporation, partnership, limited
liability company, unincorporated association, trust and government body may be
represented by either an attorney or an authorized representative in a contested
case hearing before an administrative law judge or the commission to the extent
allowed by OAR 137-003-0555.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.457
Hist.: DEQ 6-2002(Temp),
f. & cert. ef. 4-24-02, thru 10-21-02; DEQ 10-2002, f. & cert. ef. 10-8-02;
Renumbered from 340-011-0106 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 5-2008,
f. & cert. ef. 3-20-08; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0520
Liability for the Acts of a Person's
Employees
A person is legally responsible for
not only its direct acts but also the acts of its employee when the employee is
acting within the scope of the employment relationship, regardless of whether the
person expressly authorizes the act in question. The mental state ("M" factor under
OAR 340-012-0145) of an employee can be imputed to the employer. Nothing in this
rule prevents DEQ from issuing a formal enforcement action to an employee for violations
occurring during the scope of the employee's employment.
Stat. Auth.: ORS 183.341 & 468.020
Stat. Implemented: ORS 468.005,
468.130 & 468.140
Hist.: DEQ 18-2003, f. &
cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0525
Service and Filing of Documents
(1) Service will be made either personally
or by certified mail. Service is perfected when received by the named person, if
by personal service, or when mailed, if sent by mail. Service may be made upon:
(a) The named person;
(b) Any other person designated
by law as competent to receive service of a summons or notice for that person; or
(c) The person's attorney
or other authorized representative.
(2) A person holding a license
or permit issued by DEQ or commission, or who has submitted an application for a
license or permit, will be conclusively presumed able to be served at the address
given in the license or permit application, as it may be amended from time to time.
(3) Filing of a document
can be accomplished by personal service, facsimile, mail or electronically. A participant
filing any document shall at the same time, provide a copy of the document to all
other participants.
(4) Regardless of other provisions
in this rule, documents served or filed by DEQ or commission through the U.S. Postal
Service by regular mail to a person's last known address are presumed to have been
received, subject to evidence to the contrary.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.413
& 183.415
Hist.: DEQ 78, f. 9-6-74,
ef. 9-25-74; DEQ 122, f. & ef. 9-13-76; DEQ 1-2000(Temp), f. 2-15-00, cert.
ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from
340-011-0097 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert.
ef. 1-6-14
340-011-0530
Requests for Hearing
(1) Unless a request for hearing is
not required by statute or rule, or the requirement to file a request for hearing
is waived in the formal enforcement action, a person has 20 calendar days from the
date of service of the notice of a right to a contested case hearing in which to
file a written request for hearing unless another timeframe is allowed by statute
or rule.
(2) The request for hearing
must include a written response that admits or denies all factual matters alleged
in the notice, and alleges any and all affirmative defenses and the reasoning in
support thereof. Due to the complexity, factual matters not denied will be considered
admitted, and failure to raise a defense will be a waiver of the defense. New matters
alleged in the request for hearing are denied by DEQ unless admitted in subsequent
stipulation.
(3) An amended request for
hearing may be accepted by DEQ if DEQ determines that the filing of an amended request
will not unduly delay the proceeding or unfairly prejudice the participants. The
participant must provide DEQ with a written explanation why an amended request for
hearing is needed.
(4) A late request for hearing
will be accepted by DEQ if:
(a) The request is postmarked
within 20 calendar days of service of the notice, and;
(b) DEQ receives the late
request for hearing within 60 days of the date the notice became final upon default.
(5) A late request for hearing
may be accepted by DEQ if:
(a) Either the request is
received by DEQ before entry of a default order or within 60 days of the date the
notice became final upon default, and;
(b) There was good cause
for the failure to timely request a hearing.
(6) The person must provide
DEQ with a written explanation why the request for hearing was late. If the person
fails to provide the written explanation, DEQ must not accept the late request for
hearing. DEQ may require that the explanation be supported by an affidavit.
(7) The filing of a late
request for hearing does not stay the effect of any final order.
(8) DEQ will deny a late
request for hearing that is filed more than 60 days after the notice became final
by default.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.415,
183.464, 183.482, 183.745 & 183.484
Hist.: DEQ 78, f. 9-6-74,
ef. 9-25-74; DEQ 122, f. & ef. 9-13-76; DEQ 7-1988, f. & cert. ef. 5-6-88;
DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. &
cert. ef. 7-21-00; Renumbered from 340-011-0107 by DEQ 18-2003, f. & cert. ef.
12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0535
Final Orders by Default
(1) If a person fails to request a hearing
within the time allowed and no further evidence is necessary to make a prima facie
case, the notice of a right to a contested case hearing will become final by operation
of law as provided in OAR 137-003-0672.
(2) If the person fails to
request a hearing within the time allowed and DEQ determines that evidence, in addition
to the evidence in DEQ's record, is necessary to make a prima facie case, DEQ will
proceed to a contested case hearing for the purpose of establishing a prima facie
case.
(3) If the participant files
a timely request for hearing but either: withdraws the request; or, after being
provided notice of the time and place of the hearing, either fails to appear at
a hearing or notifies either the administrative law judge or DEQ, in writing, that
the participant does not intend to appear at the hearing, DEQ will enter and serve
a final order by default.
(4) If more than one person
is named in the notice of a right to a contested case hearing and any person defaults
as provided in this rule, the notice will become final as it pertains to any person
in default.
Stat. Auth.: ORS 183.335
& 468.020
Stat. Impl.: ORS 183.415 & 183.090
Hist.: DEQ 18-2003, f. &
cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0540
Consolidation or Bifurcation of
Contested Case Hearings
Proceedings for the assessment of multiple
civil penalties for multiple violations may be consolidated into a single proceeding
or bifurcated into separate proceedings, at DEQ's discretion. Additionally, DEQ,
at its discretion, may consolidate or bifurcate contested case hearings involving
the same fact or set of facts constituting the violation.
Stat. Author ORS 183.341 & 468.020
Stat. Implemented: ORS 183.415
Hist.: DEQ 78, f. 9-6-74,
ef. 9-25-74; DEQ 21-1992, f. & cert. ef. 8-11-92; Renumbered from 340-012-0035
by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0545
Burden and Standard of Proof in
Contested Case Hearings; DEQ Interpretation of Rules and Statutory Terms
(1) The participant who asserts a fact
or position is the proponent of that fact or position and has the burden of presenting
evidence to support that fact or position, unless the burden is specifically allocated
differently by a statute or rule.
(2) All findings in a proposed
or final order must be based on a preponderance of evidence in the record unless
another standard is specifically required by statute or rule.
(3) In reviewing DEQ's interpretation
of a DEQ rule as applied in a formal enforcement action, an administrative law judge
must follow DEQ's interpretation if that interpretation is both plausible and reasonably
consistent with the wording of the rule and the underlying statutes. The administrative
law judge may state, on the record, an alternative interpretation for consideration
on appeal.
(4) With the exception of
exact terms that do not require interpretation, an administrative law judge shall
give DEQ's interpretation of statutory terms the appropriate deference in light
of DEQ's expertise with the subject matter, DEQ's experience with the statute, DEQ's
involvement in the relevant legislative process, and the degree of discretion accorded
DEQ by the legislature.
Stat. Author ORS 183.341 & 468.020
Stat. Implemented: ORS 183.450
Hist.: DEQ 18-2003, f. &
cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0550
Discovery
(1) Motions for discovery will only
be granted if the motion establishes that:
(a) The participant seeking
the information attempted to obtain the information through an informal process.
If the participant is seeking information from a public agency, the participant
must make a public record request prior to petitioning for discovery; and
(b) The discovery request
is reasonably likely to produce information that is generally relevant and necessary
to the matters alleged in the notice of a right to a contested case hearing and
the request for hearing, or is likely to facilitate resolution of the case.
(2) An administrative law
judge is not authorized to order depositions, admissions, interrogatories or site
visits unless DEQ authorizes the same in writing in the specific case.
Stat. Author ORS 183.341 & 468.020
Stat. Implemented: ORS 183.425,
183.440 & 183.450
Hist.: DEQ 18-2003, f. &
cert. ef. 12-12-03
340-011-0555
Subpoenas
(1) Subpoenas for the attendance of
witnesses or production of documents at a contested case hearing will be issued
in accordance with OAR 137-003-0585.
(2) Copies of the subpoena
must be provided to the administrative law judge and all participants at the time
of service to the person to whom the subpoena is issued.
(3) Service of a subpoena
for the attendance of a witness must be completed by personal service unless the
witness has indicated that he is willing to appear and the subpoena is mailed at
least 10 days prior to the hearing. Personal service should be effected at least
7 days prior to the hearing.
(4) Service of a subpoena
for the production of documents at a contested case hearing may be effected by regular
mail provided that it is done sufficiently in advance of the hearing to allow reasonable
time to produce the documents.
(5) Service of a subpoena
for both the attendance of a witness and production of documents must be completed
as provided under section (3) of this rule.
(6) Any witness who appears
at a hearing under a subpoena will receive fees and mileage as set forth in ORS
44.415(2).
Stat. Author ORS 183.341 & 468.020
Stat. Implemented: ORS 183.425,
183.440 & 468.120
Hist.: DEQ 18-2003, f. &
cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0560
Public Attendance at Contested Case
Hearing
An administrative law judge may close
a contested case hearing to the public upon the request of a participant in the
contested case hearing.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.341
Hist.: DEQ 1-2000(Temp),
f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00;
Renumbered from 340-011-0122 by DEQ 18-2003, f. & cert. ef. 12-12-03
340-011-0565
Immediate Review
Immediate review under OAR 137-003-0640
is not allowed.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.341
Hist.: DEQ 1-2000(Temp),
f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00;
Renumbered from 340-011-0124 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014,
f. & cert. ef. 1-6-14
340-011-0570
Permissible Scope of Hearing
(1) The scope of a contested case hearing
will be limited to those matters that are relevant and material to either proving
or disproving the matters alleged in the notice and request for hearing. Equitable
remedies will not be considered by an administrative law judge.
(2) The administrative law
judge may not reduce or mitigate a civil penalty below the amount established by
the application of the civil penalty formula contained in OAR 340, division 12.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.450
& 468.130
Hist.: DEQ 1-2000(Temp),
f. 2-15-00, cert. ef. 2-15-00 thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00;
Renumbered from 340-011-0131 by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 1-2014,
f. & cert. ef. 1-6-14
340-011-0573
Proposed Orders in Contested Cases
(1) Following the close of the record
for a contested case hearing, the administrative law judge will issue a proposed
order. The administrative law judge will serve the proposed order on each participant.
(2) Within 15 days after
a proposed contested case order is served, a participant in the contested case hearing
may file a motion requesting that the administrative law judge clarify or supplement
a proposed order. The motion must specify why the participant believes that the
proposed order fails to conform to the requirements of OAR 137-003-0645 and recommend
changes to the order. The motion must be filed with the administrative law judge
and a copy provided to all participants.
(3) The administrative law
judge may grant or deny a motion filed under section (2) of this rule within 15
days. If the motion is granted, the administrative law judge may take the matter
under advisement and reissue the proposed order unchanged or may issue an amended
proposed order. If the administrative law judge fails to act on the motion within
15 days, the motion is deemed denied by operation of law.
(4) The filing of a timely
motion for clarification under section (2) of this rule tolls the period for filing
a Petition for Commission Review of the proposed contested case order under OAR
340-011-0575. Tolling of the period begins on the day the motion is filed with the
administrative law judge and ends on the day the motion is denied, deemed denied
by operation of law, or the proposed order is reissued without changes. If the administrative
law judge issues an amended proposed order, the amended order will be treated as
a new proposed order for the purpose of filing a timely Petition for Commission
Review under 340-011-0575.
(5) The motion for clarification
authorized by this rule is intended to alter the provisions of OAR 137-003-0655
but not to eliminate the authority of the administrative law judge to correct a
proposed order in the manner specified in section (2) of that rule.
(6) A motion for clarification
and any response to a motion for clarification will be part of the record on appeal.
Stat. Auth.: ORS 468.020, 183.341, 183,452
Stats. Implemented: ORS 468A.020,
468.070, 468.090 - 0140, 183.341, 183.452
Hist.: DEQ 5-2008, f. &
cert. ef. 3-20-08; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0575
Review of Proposed Orders in Contested
Cases
(1) For purposes of this rule, filing
means receipt in the office of the director or other office of DEQ.
(2) Commencement of Review
by the Commission: The proposed order will become final unless a participant or
a member of the commission files a Petition for Commission Review within 30 days
of service of the proposed order. The timely filing of a Petition is a jurisdictional
requirement and cannot be waived. Any participant may file a petition whether or
not another participant has filed a petition.
(3) Contents of the Petition
for Commission Review. A petition must be in writing and need only state the participant's
or a commissioner's intent that the commission review the proposed order. Each petition
and subsequent brief must be captioned to indicate the participant filing the document
and the type of document (for example: Respondents Exceptions and Brief; DEQ's Answer
to Respondent's Exceptions and Brief).
(4) Procedures on Review:
(a) Exceptions and Brief:
Within 30 days from the filing of a petition, the participant(s) filing the petition
must file written exceptions and brief. The exceptions must specify those findings
and conclusions objected to, and also include proposed alternative findings of fact,
conclusions of law, and order with specific references to the parts of the record
upon which the participant relies. The brief must include the arguments supporting
these alternative findings of fact, conclusions of law and order. Failure to take
an exception to a finding or conclusion in the brief, waives the participant's ability
to later raise that exception.
(b) Answering Brief: Each
participant, except for the participant(s) filing that exceptions and brief, will
have 30 days from the date of filing of the exceptions and brief under subsection
(4)(a), in which to file an answering brief.
(c) Reply Brief: If an answering
brief is filed, the participant(s) who filed a petition will have 20 days from the
date of filing of the answering brief under subsection (4)(b), in which to file
a reply brief.
(d) Briefing on Commission
Invoked Review: When one or more members of the commission wish to review the proposed
order, and no participant has timely filed a Petition, the chair of the commission
will promptly notify the participants of the issue that the commission desires the
participants to brief. The participants must limit their briefs to those issues.
The chair of the commission will also establish the schedule for filing of briefs.
When the commission wishes to review the proposed order and a participant also requested
review, briefing will follow the schedule set forth in subsections (a), (b) and
(c) of this section.
(e) Extensions: The commission
or director may extend any of the time limits contained in section (4) of this rule.
Each extension request must be in writing and filed with the commission before the
expiration of the time limit. Any request for an extension may be granted or denied
in whole or in part.
(f) Dismissal: The commission
may dismiss any petition, upon motion of any participant or on its own motion, if
the participant(s) seeking review fails to timely file the exceptions or brief required
under subsection (4)(a) of this rule. A motion to dismiss made by a participant
must be filed within 45 days after the filing of the Petition. At the time of dismissal,
the commission will also enter a final order upholding the proposed order.
(g) Oral Argument: Following
the expiration of the time allowed the participants to present exceptions and briefs,
the matter will be scheduled for oral argument before the commission.
(5) Additional Evidence:
A request to present additional evidence must be submitted by motion and must be
accompanied by a statement showing good cause for the failure to present the evidence
to the administrative law judge. The motion must accompany the brief filed under
subsection (4)(a) or (b) of this rule. If the commission grants the motion or decides
on its own motion that additional evidence is necessary, the matter will be remanded
to an administrative law judge for further proceedings.
(6) Scope of Review: The
commission may substitute its judgment for that of the administrative law judge
in making any particular finding of fact, conclusion of law, or order except as
limited by ORS 183.650 and OAR 137-003-0665.
(7) All documents filed with
the commission under this rule must also be copied upon each participant in the
contested case hearing.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.460,
183.464 & 183.470
Hist.: DEQ 78, f. 9-6-74,
ef. 9-25-74; DEQ 115, f. & ef. 7-6-76; DEQ 25-1979, f. & ef. 7-5-79; DEQ
7-1988, f. & cert. ef. 5-6-88; DEQ 1-2000(Temp), f. 2-15-00, cert. ef. 2-15-00
thru 7-31-00; DEQ 9-2000, f. & cert. ef. 7-21-00; Renumbered from 340-011-0132
by DEQ 18-2003, f. & cert. ef. 12-12-03; DEQ 5-2008, f. & cert. ef. 3-20-08;
DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0580
Petitions for Reconsideration or Rehearing
(1) A participant is not required to
seek either reconsideration or rehearing of a final order prior to seeking judicial
review.
(2) Any petition for reconsideration
or rehearing must be received by DEQ within 60 days of service of the final order.
Unless specifically set forth in this rule, the procedures for petitions for reconsideration
or rehearing are those in OAR 137-003-0675.
(3) A petition for reconsideration
or rehearing does not stay the effect of the final order.
(4) The director, on behalf
of the commission, shall issue orders granting or denying petitions for reconsideration
and rehearing.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.480
& 183.482
Hist.: DEQ 18-2003, f. &
cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14
340-011-0585
Petitions for a Stay of the Effect
of a Final Order
(1) A petition to stay the effect of
any final order must be received by DEQ within 60 days of service of the final order.
Unless specifically set forth in this rule, the procedures for petitions for a stay
are those in OAR 137-003-0690 through 0700.
(2) If a participant submits
a petition for reconsideration or rehearing or a late request for hearing, the petition
for a stay must accompany that petition.
(3) A petition for a stay
must contain all the elements set forth in OAR 137-003-0690 and be served upon all
participants as set forth in 137-003-0690(4).
(4) Any participant may seek
to intervene in the stay proceeding as set forth in OAR 137-003-0695 by filing a
response to the petition for a stay with DEQ.
(5) The director, on behalf
of the commission, shall issue an order granting or denying the petition for a stay
within 30 days of receipt of the petition.
Stat. Auth.: ORS 183.341 & 468.020
Stats. Implemented: ORS 183.480
& 183.482
Hist.: DEQ 18-2003, f. &
cert. ef. 12-12-03; DEQ 1-2014, f. & cert. ef. 1-6-14

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