Flammable Liquid Dispensing Regulations

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_800/oar_837/837_020.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF STATE POLICE,

OFFICE OF STATE FIRE MARSHAL

 

DIVISION 20
FLAMMABLE AND COMBUSTIBLE LIQUIDS
Flammable Liquid Dispensing Regulations

837-020-0025
Purpose and Scope
These rules establish licensing requirements for nonretail facility and conditional nonretail facility owners and operators. These rules also establish the requirements that each nonretail customer and conditional use customer must meet to dispense Class 1 flammable liquids at those facilities.
Stat. Auth.: ORS 476 & 480.380

Stats. Implemented: ORS 480.310 - 480.385

Hist.: FM 5-1990, f. 7-13-90, cert. ef. 10-15-90; FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0030
Effective Dates
837-020-0025 through 837-020-0125 are effective upon date of filing.
Stat. Auth.: ORS 476 & 480.380

Stats. Implemented: ORS 480.310 - 480.385

Hist.: OSFM 1-2002, f. & cert. ef. 2-25-02
837-020-0035
Definitions
For purposes of ORS 480.310 to 480.385 and OAR 837-020-0025 through 837-020-0125 only, the following definitions apply:
(1) “Business Use” means that all Class 1 flammable liquids dispensed into motor vehicles and containers must be used only in the course of business activities.
(2) "Class 1 Flammable Liquid" means any liquid with a flash point below 25 degrees Fahrenheit, closed cup tester. Note: Diesel fuel is not a Class 1 flammable liquid.
(3) "Container" means all types of portable containers.
(4) “Conditional Use Customer” means a person who may dispense Class 1 flammable liquids at a licensed conditional nonretail facility, and meets the requirements of OAR 837-020-0045 through 837-020-0125.
(5) “Conditional Nonretail Facility” means a nonretail facility licensed by the State Fire Marshal, where conditional use customers may dispense Class 1 flammable liquids.
(6) "Dispensing" means the transfer of a Class 1 flammable liquid from a facility to a motor vehicle or container.
(7) “Documentation” means a verifiable Federal Employer Identification Number or documentation that verifies participation in a business or employment with a government agency or nonprofit or charitable organization. Documentation may be photocopies or facsimiles of the original documents, or printouts of web site licensing information that shows the business is currently licensed to operate.
(8) "Dual Operations" means a nonretail facility where Class 1 flammable liquids are dispensed at retail and nonretail with either a time separation of the retail and nonretail operations or a separation of the retail and nonretail pump islands by a distance of at least 50 feet.
(9) “Emergency” means any man-made or natural element or circumstance causing or threatening loss of life, injury to person or property, human suffering or financial loss, and includes, but is not limited to, fire, explosion, flood, severe weather, drought, earthquake, volcanic activity, spills or releases of oil or hazardous material as defined in ORS 466.605, contamination, utility or transportation emergencies, disease, blight, infestation, crisis influx of migrants unmanageable by the county, civil disturbance, riot, sabotage and war.
(10) “Emergency Management Agency” means an organization created and authorized under ORS 401.015 to 401.105, 401.260 to 401.325 and 401.355 to 401.580 by the state, county or city to provide for and ensure the conduct and coordination of functions for comprehensive emergency program management.
(11) “Emergency Service Agency” means an agency defined in ORS 401.025 or an entity authorized by an emergency service agency to provide services during an emergency.
(12) “Emergency Service Worker” means an individual who, under the direction of an emergency service agency or emergency management agency, performs emergency services and:
(a) Is a registered volunteer or independently volunteers to serve without compensation and is accepted by the office or the emergency management agency of a county or city; or
(b) Is a member of the Oregon State Defense Force acting in support of the emergency service system.
(13) “Emergency Services” means and includes those activities provided by state and local government agencies with emergency operational responsibilities to prepare for and carry out any activity to prevent, minimize, respond to or recover from an emergency. These activities include, without limitation, coordination, preparedness planning, training, interagency liaison, fire fighting, oil or hazardous material spill or release cleanup as defined in ORS 466.605, law enforcement, medical, health and sanitation services, engineering and public works, search and rescue activities, warning and public information, damage assessment, administration and fiscal management, and those measures defined as “civil defense” in section 3 of the Act of January 12, 1951, P.L. 81-920 (50 U.S.C. 22520).
(14) “Employee” means an individual who works for an operator or an owner.
(15) "Equivalent Documentation" means verifiable documentation that meets or exceeds the requirements of documentation required under ORS 480.345. The final decision as to what is acceptable as equivalent documentation rests with the State Fire Marshal.
(16) “Facility” means a site where Class 1 flammable liquids are dispensed. A facility can be either retail, non-retail or a combination or both.
(17) “General Public” means someone other than a nonretail customer or a conditional use customer.
(18) “Individual” means a single human being.
(19) “License” means the official document issued by the State Fire Marshal that authorizes the operation of a nonretail facility or a conditional nonretail facility when otherwise in compliance with all applicable requirements of OAR 837-020-0040.
(20) “License Application” means the form and accompanying documentation required to be completed and submitted to the State Fire Marshal for approval prior to the issuance of a nonretail facility or a conditional nonretail facility license.
(21) “May” means a regulation of conduct and implies probability or permission.
(22) “May not” means a prohibition of conduct.
(23) "Motor Vehicle" means a vehicle that is self-propelled or designed for self-propulsion, as defined by Oregon Vehicle Code 801.360.
(24) “Must” means a mandatory requirement.
(25) "Nonretail Customer" means an operating business enterprise, government agency, or nonprofit or charitable organization who otherwise meets the customer requirements of ORS 480.345
(26) "Nonretail Facility" means a facility licensed by the State Fire Marshal, where Class 1 flammable liquids are dispensed through a fuel dispensing device that limits access to qualified nonretail customers.
NOTE: A dual operation facility is also a nonretail facility.
(27) “Operator” means a person that operates a nonretail facility or a conditional nonretail facility.
(28) "Oregon Fire Code (OFC)" means the Oregon Fire Code, 2007 Edition.
(29) "Owner" means any person that is the owner of a nonretail facility or a conditional nonretail facility. An owner may also be an operator.
(30) "Person" means one or more individuals, legal representatives, partnerships, joint ventures, associations, corporations (whether or not organized for profit), business trusts, or any organized group of persons and includes the state, state agencies, counties, municipal corporations, school districts and other public corporations.
(31) "Retail Facility" means a facility that sells Class 1 flammable liquids to the general public in compliance with ORS 480.330.
(32) "Verifiable Documentation" means documentation that can be verified by the State Fire Marshal as true and accurate.
Stat. Auth.: ORS 480.380

Stats. Implemented: ORS 480.310 - 480.385

Hist.: FM 5-1990, f. 7-13-90, cert. ef. 10-15-90; FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; FM 2-1995, f. 10-11-95, cert. ef. 10-16-95; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07; OSFM 4-2007(Temp), f. & cert. ef. 11-30-07 thru 5-27-08; OSFM 3-2008, f. 4-3-08, cert. ef. 5-1-08
837-020-0040
General
(1) Nonretail facility
and conditional nonretail facility operators desiring to engage in nonretail facility
or conditional nonretail facility operations must comply with all applicable state,
federal and local laws, rules and regulations including, but not limited to:
(a) ORS 480.310
through 480.385;
(b) OAR 837-020-0025
through 837-020-0125;
(c) Oregon
Fire Code (OFC), 2010 Edition;
(d) OAR chapter
837, division 85, Hazardous Materials Reporting; and
(e) NFPA
30 and 30A, 2012 Edition.
(2) In addition
to other applicable provisions of law, each nonretail facility and conditional nonretail
facility must meet the following requirements as per OAR 837-020-0040:
(a) Proper
drainage grades or curbs must be situated to prevent any spills from flowing towards
any building or other pump islands;
(b) Locations
for the emergency fuel shut off devices must be clearly and conspicuously posted;
(c) Instructions
for the operation of nonretail dispensers must be clearly and conspicuously posted;
(d) Locations
of all fire extinguishers must be clearly and conspicuously posted;
(e) Fire
extinguishers must be accessible;
(f) Be adequately
lighted at all times when available for use;
(g) A fire
alarm transmitting device or a telephone not requiring a coin or credit card to
operate must be provided, and be accessible, at each nonretail facility and conditional
nonretail facility during all hours of operation. This equipment must be maintained
in good working order in the event emergency assistance is needed; and
(h) All applicable
provisions of the OFC must be met.
(3) All nonretail
facilities and conditional nonretail facilities must have the following warning
signs posted. These signs must be readily visible and readable from each Class 1
flammable liquid dispensing pump from a distance of ten feet and state:
(a) Smoking
is prohibited;
(b) Vehicle
engines must be shut off while fueling;
(c) The nonretail
facility or conditional use facility address;
(d) The telephone
number of the owner or operator;
(e) Do not
fill unapproved containers;
(f) Portable
containers must be removed from inside the trunk, passenger compartment, or truck
bed of a vehicle and placed on the ground before filling.
(g) It is
a violation of law, subject to penalty, to dispense Class 1 flammable liquids without
first receiving the training required by OAR 837-020-0055; and
(h) It is
a violation of law, subject to penalty, to dispense Class 1 flammable liquids for
personal use or into motor vehicles or containers not owned or used by a business,
government, non-profit, or charitable organization, per ORS 480.345(4), (not required
at conditional nonretail facilities).
(i) Discharge
your static electricity before fueling by touching a metal surface away from the
nozzle.
(j) To prevent
static charge, do not reenter your vehicle while gasoline is pumping.
(k) If a
fire starts, do not remove nozzle, use emergency fuel shut off.
(l) Persons
dispensing fuel must remain outside the vehicle being fueled, with the fueling nozzle
in full view at all times.
(4) In addition
to the provisions required by OAR 837-020-0040, nonretail dual operation facilities
separated by distance must:
(a) Have
signs visible from each driveway access point identifying the retail and nonretail
pump islands. Signs must be readily visible and readable, be at least three feet
by four feet in size, and have a minimum height of six inch letters on a contrasting
background;
(b) Where
retail and nonretail dispensing of Class 1 flammable liquids occurs during the same
hours, nonretail pump islands must be separated from retail pump islands by a space
of at least 50 feet. Nonretail and retail pump islands may be separated by a distance
of no less than 20 feet, provided prior approval is given by the State Fire Marshal,
and that one of the following barriers is present:
(A) An approved
solid physical barrier or a solid wall at least four feet high, constructed of fire
resistive materials, and which runs the entire length of the pump island; or
(B) A fire
resistive building, meeting the requirements of the building code.
(c) Unless
pump islands are separated by at least 50 feet (20 feet with an approved barrier),
retail and nonretail dispensing may not occur during the same hours at a facility.
(d) Where
retail and nonretail dispensing is separated only by time, signs must be visible
from each driveway access point and each Class 1 flammable liquid dispensing pump
stating the days and hours that separate retail and nonretail operations occur.
These signs must be readily visible and readable, be at least three feet by four
feet in size, and have a minimum height of six inch letters on a contrasting background.
(5) At least
45 days prior to the start of intended operations, the facility owner or operator
of each new nonretail facility and conditional nonretail facility covered by OAR
837-020-0040 must file the appropriate license application forms and certifications
with the State Fire Marshal.
[Publications: Publications
referenced are available from the agency.]
Stat. Auth.:
ORS 480.380

Stats. Implemented:
ORS 480.310 - 480.385

Hist.: FM
4-1992, f. 6-15-92, cert. ef. 7-15-92; FM 2-1995, f. 10-11-95, cert. ef. 10-16-95;
OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 10-2002, f. & cert. ef. 12-6-02;
OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07;
OSFM 7-2008, f. 9-26-08, cert. ef. 10-1-08; OSFM 9-2012, f. & cert. ef. 10-2-12
837-020-0045
Operation of Class 1 Flammable Liquid Dispensing Device by General Public Prohibited
Owners or operators of facilities where Class 1 flammable liquids are dispensed at retail may not allow any individual other than owners, operators, and their employees, when acting in their employment capacity to use or manipulate any pump, hose, pipe or other device used at the facility to dispense Class 1 flammable liquids into a fuel tank of a motor vehicle or container.
EXCEPTIONS:
(1) Individuals other than owners, operators and employees of the nonretail facility may be authorized to dispense Class 1 flammable liquids at nonretail facilities if such individuals meet the requirements of ORS 480.310 through 480.385 and OAR 837-020-0025 through 837-020-0125.
(2) Motorcycle assisted fueling at retail facilities. A motorcyclist operating their motorcycle may handle the nozzle for dispensing fuel, but may not activate or deactivate any fuel dispensing device. Individuals who violate this fueling procedure may be subject to citation under OAR 837-020-0125.
(3) Aviation fuel dispensed at airports permitted by the Oregon Department of Aviation.
Stat. Auth.: ORS 476 & 480.380

Stats. Implemented: ORS 480.330 & 480.345

Hist.: FM 5-1990, f. 7-13-90, cert. ef. 10-15-90; FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0050
Conditions for Operation of Dispensing Device by Nonretail Customers
Notwithstanding ORS 480.330 and 480.340 or OAR 837-020-0045, persons, other than owners, may be authorized to dispense Class 1 flammable liquids at nonretail facilities only under the following conditions: The nonretail customer and conditional use customer satisfies all requirements of OAR 837-020-0045 through OAR 837-020-0095.
Stat. Auth.: ORS 480.380

Stats. Implemented: ORS 480.345

Hist.: FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 10-2002, f. & cert. ef. 12-6-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0055
Fire Safety Training
(1) Owners or operators of nonretail facilities and conditional nonretail facilities must provide an initial fire safety training course to each nonretail customer and each conditional use customer authorized to dispense Class 1 flammable liquids. The training may be delivered through any suitable method that contains all provisions of 837-020-0055(2) and must be provided prior to allowing nonretail customers and conditional use customers to dispense Class 1 flammable liquids. A signed document indicating receipt of safety training must be maintained by each operator as part of each customer file.
(2) The fire safety training described in section (1) must include:
(a) The hazards of all forms of Class 1 flammable liquids to be dispensed by the nonretail customers and conditional use customers;
(b) The location and operation of emergency fuel shut off devices required under the OFC;
(c) The no smoking set-back requirements of the OFC;
(d) Procedures for contacting the local fire department and other emergency service organizations;
(e) The use of the fire extinguishers required under the OFC; and
(f) The type of portable containers that may be filled and the safe procedures for filling them.
(3) All nonretail customers and conditional use customers who wish to dispense Class 1 flammable liquids at nonretail facilities and conditional nonretail facilities must successfully complete the fire safety training described in sections (1) and (2) of this rule prior to engaging in dispensing operations.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.: ORS 476 & 480.380

Stats. Implemented: ORS 480.345

Hist.: FM 5-1990, f. 7-13-90, cert. ef. 10-15-90; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0060
Quantity of Purchase Criteria
(1) Except as provided below, each nonretail customer must file documentation with the owner or operator to show the nonretail customer purchases at least 900 gallons of Class 1 flammable liquids fuel every 12 months for business, government, nonprofit, or charitable purposes.
(2) The 900 gallons may have been purchased from any source. The nonretail customer must provide documentation to the owner or operator to demonstrate this requirement has been met if the nonretail customer does not purchase 900 gallons from the owner or operator they have entered into an agreement with. This documentation must be readily available for review by the State Fire Marshal.
(3) Diesel fuel used for the purpose of fueling a motor vehicle may be counted toward the 900 gallon minimum fuel purchase requirement.
(4) Nonretail customers that do not meet the requirements of ORS 480.345 and this section must have their access to nonretail fuel dispensing revoked by the nonretail facility owner or operator.
(5) Nonretail customers who wish to dispense Class 1 flammable liquids at a nonretail facility are not required to meet the provisions of this section if:
(a) The nonretail customer annually provides documentation that the fuel qualifies as a deductible farming expense on the nonretail customer's Schedule F of their federal income tax return; or
(b) The fuel was purchased by a governmental agency providing fire, ambulance or police services; or
(c) The nonretail customer was a customer of a nonretail facility on and since June 30, 1991, and meets all other requirements of OAR 837-020-0050.
(6) Nonretail customer applicants must certify under ORS 162.075 they will purchase the quantity of fuel required by OAR 837-020-0060 within 12 months of the date of their first fuel purchase or when their account was established. Customers failing to meet this requirement must be terminated as a nonretail customer.
NOTE: This section does not apply to Conditional Use Customers.
Stat. Auth.: ORS 480.380

Stats. Implemented: ORS 480.345 & 480.360

Hist.: FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 10-2002, f. & cert. ef. 12-6-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0065
Certification and Record Keeping
(1) Each owner or operator of a nonretail facility or a conditional nonretail facility must provide the safety training required by OAR 837-020-0055 to all their nonretail customers and their conditional use customers.
(2) Owners or operators of nonretail facilities and conditional nonretail facilities must maintain electronic or hard copy documentation that is readily accessible to demonstrate all nonretail customers and conditional use customers meet the requirements of OAR 837-020-0050.
(3) Owners or operators of nonretail facilities and conditional nonretail facilities must maintain documentation to demonstrate that, at a minimum, weekly site visits of each nonretail facility and conditional nonretail facility have been performed. Such documentation must be noted on forms approved by the State Fire Marshal, and must be readily accessible to demonstrate this requirement has been met.
(4) Owner or operators of nonretail facilities and conditional nonretail facilities must provide documentation to the State Fire Marshal to certify violations of OAR 837-020-0025 through 837-020-0125 have been corrected.
(5) The documentation of corrections must be received by the specified time referenced in the Notice and Order of Correction provided by the State Fire Marshal.
(6) Failure to provide documentation in accordance with OAR 837-020-0025 through 837-020-0125 constitutes a violation which may result in civil penalty assessment to the owner or operator, and may result in the revocation of their license.
Stat. Auth.: ORS 476 & 480.380

Stats. Implemented: ORS 480.345 - 480.375

Hist.: FM 5-1990, f. 7-13-90, cert. ef. 10-15-90; FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0070
Nonretail and Conditional Use Customer Agreements
(1) The owner or operator must enter into a written agreement with nonretail customers and conditional use customers permitted under OAR 837-020-0050 to dispense fuel at the nonretail facility and conditional nonretail facility. Except as otherwise provided in ORS 480.355, the agreement must at a minimum:
(a) Certify that the nonretail customer will purchase at least 900 gallons of Class 1 flammable liquids, including diesel fuel, from any source during a 12-month period, or if the amount of Class 1 flammable, including diesel fuel, purchased is less than 900 gallons annually, file documentation that:
(A) The fuel qualifies as a deductible farming expense on the nonretail customer's current Schedule F of their federal income tax return; or
(B) The fuel was purchased by a governmental agency providing fire, ambulance or police services;
(C) The nonretail customer was a customer of nonretail facility on and since June 30, 1991, and meets all other requirements of OAR 837-020-0050.
(b) Provide a verifiable federal employer identification number or equivalent documentation to indicate participation in a business or employment with a government agency or nonprofit or charitable organization;
(c) Certify that the nonretail customer is employed by a business, government agency or nonprofit or charitable organization and that the nonretail customer will dispense Class 1 flammable liquids only into the fuel tank of a motor vehicle or container owned or used by the business, government agency or nonprofit or charitable organization;
(d) That all Class 1 flammable liquids dispensed at nonretail facilities will be for business use only, and that the nonretail customer is subject to a penalty if fueling a motor vehicle or container for personal use; and
(e) Certify that the nonretail customer or conditional use customer has satisfied safety training requirements in compliance with rules of the State Fire Marshal; and
(f) Require the nonretail customer or conditional use customer to submit a sworn statement, as defined in ORS 162.055, that the information supplied in the agreement is true and correct.
(2) The requirements of subsections (1)(a), (b), (c), and (d) of this rule to not apply to conditional use customer agreements.
Stat. Auth.: ORS 480.380

Stats. Implemented: ORS 480.345 & 480.355

Hist.: FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0075
Complaint and Enforcement Procedures
(1) Alleged violations at retail facilities, nonretail facilities, and conditional nonretail facilities are subject to investigation by the State Fire Marshal.
(2) Upon request of the State Fire Marshal, the owner or operator must be able to demonstrate that all nonretail customers and conditional use customers dispensing Class 1 flammable liquids at their nonretail facilities and conditional nonretail facilities meet the requirements of OAR 837-020-0050.
(3) Owners or operators of retail facilities, nonretail facilities, and conditional nonretail facilities who fail to meet the applicable requirements of OAR 837-020-0040 may be subject to the enforcement and closure provisions of ORS 479.170 in addition to the provisions in OAR 837-020-0125.
Stat. Auth.: ORS 476 & 480.380

Stats. Implemented: ORS 480.365 - 480.375 & 480.385

Hist.: FM 5-1990, f. 7-13-90, cert. ef. 10-15-90; FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0080
Nonretail Fuel Dispensing During a Governor Declared Emergency
(1) During an emergency as defined
in ORS 401.025, a nonretail facility may permit individuals who are not otherwise
qualified under ORS 480.345 to dispense Class 1 flammable liquids if all conditions
specified in this section are satisfied.
(2) The owner or operator of
the nonretail facility holds a valid nonretail facility license issued by the State
Fire Marshal;
(3) The owner or operator has
paid an application fee for each nonretail facility and customer fees required by
House Bill 3696, Chapter 107, 2010 Special Session, ORS 480.350.
(4) The owner or operator has
provided a blank copy of the form required by ORS 480.345 and OAR 837-020-0070 that
will be used as the written agreement between the owner or operator and nonretail
customer that outlines the safety training and emergency procedures to be used at
the nonretail facility.
(5) The nonretail customer and
the owner or operator of the nonretail facility have entered into a written agreement
that meets the requirements of OAR 837-020-0070.
(6) The Class 1 flammable liquid
is dispensed only into a motor vehicle or container of an emergency service agency
as defined in ORS 401.025 or to an entity authorized by an emergency service agency
to provide services during an emergency.
(7)(a) The nonretail customer,
other than the owner or operator, is an emergency service worker as defined in ORS
401.025 and dispenses Class 1 flammable liquids only into the fuel tank of a motor
vehicle or container owned or used by the emergency service agency; or
(b) An owner or employee of
the entity authorized by the emergency service agency to provide services during
an emergency and dispenses Class 1 flammable liquids only into the fuel tank of
a motor vehicle or other container owned or used by the entity authorized by that
agency to provide services during an emergency.
(8) The nonretail customer,
other than the owner or operator or employee, dispensing Class 1 flammable liquids
satisfies safety training requirements of OAR 837-020-0055.
(9) The owner or operator is
responsible to bear the burden of production and proof that the requirements of
OAR 837-020-0040, and any other rules of the State Fire Marshal have been satisfied.
Stat. Auth.: ORS 480.347

Stats Implemented: ORS 480

Hist.: OSFM 1-2002, f. &
cert. ef. 2-25-02; OSFM 10-2002, f. & cert. ef. 12-6-02; OSFM 1-2007, f. 3-30-07,
cert. ef. 4-1-07; OSFM 3-2012, f. & cert. ef. 1-24-12
837-020-0085
Nonretail and Conditional Nonretail Facility License Requirements
(1) Nonretail and conditional
nonretail facilities must obtain a valid license issued by the State Fire Marshal,
prior to operating a nonretail facility or a conditional nonretail facility.
(2) A separate license is required
for each nonretail facility and conditional nonretail facility.
(3) All initial facility licenses
be valid for one year from the date of issue.
(4) In accordance with ORS 183.705,
a renewal date of a facility license may be adjusted or prorated to correspond with
existing State Fire Marshal licensing year dates,
(5) The State Fire Marshal will
issue a license to the owner or operator if the owner or operator has:
(a) Complied with the requirements
established by OAR 837-020-0040;
(b) Submitted the application
to the State Fire Marshal on forms supplied by the State Fire Marshal;
(c) Certified that the owner
or operator will comply with all provisions of ORS 480.345, the OFC, and this division;
(d) Provided a blank copy of
the form that will be used as the written agreement required under ORS 480.345 and
OAR 837-020-0070;
(e) Provided a blank copy of
the safety training that is provided to their nonretail customers and conditional
use customers, to ensure the safety training meets all requirements of OAR 837-020-0055;
(f) Paid an application fee
for each facility site and customer fees required by House Bill 3696, Chapter 107,
2010 Special Session, ORS 480.350.
(6)
Any and all certification required by this section must be made in accordance with
ORS 162.075.
(7) The owner or operator bears the burden
of production and proof that the requirements of this Division, and all applicable
rules of the State Fire Marshal have been satisfied.
(8) The State Fire Marshal may
conduct an on-site inspection to determine compliance with OAR 837-020-0040 and
other applicable fire and life safety laws prior to issuing a nonretail facility
or conditional nonretail facility license to the owner or operator under section
(4) of this rule.
(9) In addition to the requirements
set forth in this section, owners or operators who wish to operate a dual operations
facility, the owner or operator must provide to the State Fire Marshal, on State
Fire Marshal forms, the specific hours and days when the owner or operator proposes
to conduct only retail dispensing and the specific hours and days when the owner
or operator proposes to conduct only nonretail dispensing.
(10) In addition to the requirements
set forth in this section, owners or operators who wish to operate a conditional
nonretail facility, must comply with the following:
(a) A conditional nonretail
facility may permit persons who are not otherwise qualified under OAR 837-020-0050
to dispense Class 1 flammable liquids if all conditions specified in this section
are satisfied;
(b) After investigation and
public hearing, and after considering the comments of local residents and government
officials, the State Fire Marshal may issue a conditional nonretail license to an
owner or operator for local non-commercial use if the State Fire Marshal finds:
(A) There is no facility where
Class 1 flammable liquids are dispensed by attendants at retail, including dual
operation facilities, within seven miles of the owner or operator's nonretail facility,
and other undue hardship conditions exist. Such undue hardship conditions are determined
on a case by case basis and may include, but are not limited to, road conditions,
and volume and type of traffic in the affected area;
(B) The owner or operator has
certified that the owner or operator will comply with the applicable provisions
of ORS 480.345(1), (5), (6)(d), and (6)(e), and this division;
(C) The method of access to
a conditional nonretail facility only allows access to that specific conditional
nonretail facility and no other nonretail facility or conditional nonretail facility.
(11) Within a given geographical
area, applications for conditional nonretail licenses issued under this section
are considered in order of priority of receipt. The date the State Fire Marshal
actually receives the application determines its priority.
(12) A conditional nonretail
license may not be renewed if the requirements of this Section are not met at the
time of application for renewal. There is no guarantee of continued operations under
this section.
[Publications: Publications
referenced are available from the agency.]
Stat. Auth.: ORS 480.380 &
480.355

Stats. Implemented: ORS 480.350
& 480.355

Hist.: FM 4-1991(Temp), f. 12-31-91,
cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. &
cert. ef. 2-25-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07,
cert. ef. 4-1-07; OSFM 3-2012, f. & cert. ef. 1-24-12
837-020-0105
License Denials, Revocations and Suspensions; Civil Penalties and Appeals
(1) The State Fire Marshal may deny, revoke, or suspend a nonretail facility or conditional nonretail facility license if the owner or operator:
(a) Fails to comply with OAR 837-020-0040, or any other rule, pertaining to nonretail fuel dispensing, adopted by the State Fire Marshal; or
(b) Falsifies any information in the application for the license.
(2) The option of denial, revocation or suspension may be based on the following:
(a) The number of similar or related violations alleged to have been committed in the current license year;
(b) Whether the violation or violations were willful or intentional;
(c) The prior history of violations committed by the owner or operator; or
(d) Other circumstances determined by the State Fire Marshal to be applicable to the particular violation or violations.
(3) Suspension or revocation of a license may include suspension or revocation of the current license and the right to apply for a subsequent license.
(4) Where the State Fire Marshal has alleged a self-service violation at a retail facility, nonretail facility, or conditional nonretail facility, the burden of proof to show the purchase was in compliance with the requirements of ORS 480.330 through 480.385 and OAR chapter 837, division 20 shifts from the state to the owner or operator once the state establishes and provides the owner or operator with the following information:
(a) The date and time of the alleged violation;
(b) The facility location, including the pump number where the alleged violation occurred;
(c) The vehicle description and license number; and
(d) A description of the individual dispensing the Class 1 flammable liquids.
(5) Any owner or operator who applies for a license required by OAR 837-020-0085, and whose application is denied, is entitled to file an appeal. Appeals are conducted as contested case proceedings pursuant to ORS 183.413 to 183.470.
(6) Before suspending, revoking or terminating a license issued under OAR 837-020-0085, the State Fire Marshal will give prior notice to the licensee and offer a hearing. If requested, such hearings are conducted as contested case proceedings pursuant to ORS 183.413 to 183.470.
(7) Where the State Fire Marshal proposes to assess a civil penalty under ORS 480.385 and OAR 837-020-0125, appropriate notice of appeal rights will be given under ORS 480.385.
(8) Judicial review of a final order made after a hearing requested under section (1) or (2) of this rule will be as provided in ORS 183.480 to 183.497 for judicial review of contested cases.
(9) Nothing in this Section may prevent the State Fire Marshal from closing a nonretail facility or a conditional nonretail facility under ORS 479.170, provided that the accelerated appeals process explained in ORS 479.180 is observed.
(10) Where a nonretail customer or a conditional use customer account list has been submitted to the State Fire Marshal during enforcement or appeal proceedings, the State Fire Marshal will treat the list as confidential to the extent allowed by law.
Stat. Auth.: ORS 480.380

Stats. Implemented: ORS 480.355, 480.365 - 480.375 & 480.385

Hist.: FM 4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0115
Application, License Renewals, and Annual Fees
(1) Any owner or operator engaged
in, or intending to engage in, the operation of a nonretail facility or a conditional
nonretail facility must apply for and obtain a license issued by the State Fire
Marshal. The application, fees, and supporting documents for new facilities must
be submitted and received by the State Fire Marshal 45 days prior to the start of
the operation.
(2) A separate license must
be applied for and obtained for each nonretail facility or conditional nonretail
facility.
(3) The license must be obtained
prior to start of the nonretail facility or conditional nonretail facility operation,
or the owner or operator may be assessed a civil penalty and be subject to closure
of the Nonretail or conditional nonretail facility.
(4) The application fee for
each nonretail facility and conditional nonretail facility license is established
by ORS 480.350. Licenses are valid for one year from the date of issue.
(5) In accordance with ORS 183.705,
the license renewal date of a facility may be adjusted or prorated to correspond
with existing State Fire Marshal licensing year dates.
(6) License fees may be either
paid at, or mailed to, the State Fire Marshal. The license application may be either
delivered to or mailed to the State Fire Marshal.
(7) Payment may be made by personal
check, business check, cashier’s check or money order made payable to the
State Fire Marshal. If the fee is paid by either personal or business check, the
State Fire Marshal may not take any action on the license application until the
check has cleared the bank.
(8) In addition to the application
and renewal fees assessed by this section, owners or operators of nonretail facilities
and conditional nonretail facilities must pay to the State Fire Marshal an annual
account fee established by ORS 480.350 for each nonretail customer and conditional
use customer who has access to dispense Class 1 flammable liquids at any time during
the applicable license year.
(9) License renewal applications,
accompanying documentation, and payment must be postmarked by a United States Postmark,
or received at the Office of State Fire Marshal, no later than 30 days prior to
the license expiration for a license renewal valid for the following license. If
the 30 days prior to the license expiration date falls on a day when a postmark
cannot be obtained, the applications must be postmarked or received by the Office
of State Fire Marshal on the preceding business day.
(10) License application renewals
postmarked or received after the deadline set forth under subsection (8) of this
rule may be subject to a civil penalty.
(11) License and customer fees
received by the Office of State Fire Marshal are deposited with the State Treasurer,
placed in the State Fire Marshal Fund, and used to fund the non-retail fuel dispensing
program.
Stat. Auth.: ORS 480.380

Stats. Implemented: ORS 480.350
& 480.355

Hist.: FM 4-1991(Temp), f. 12-31-91,
cert. ef. 1-1-92; FM 3-1992(Temp), f. & cert. ef. 4-24-92; FM 4-1992, f. 6-15-92,
cert. ef. 7-15-92; OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 6-2005, f. 5-24-05,
cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07; OSFM 4-2007(Temp),
f. & cert. ef. 11-30-07 thru 5-27-08; OSFM 3-2008, f. 4-3-08, cert. ef. 5-1-08;
OSFM 3-2012, f. & cert. ef. 1-24-12
837-020-0120
Hearings and Contested Cases
A person may request a Formal Hearing regarding the suspension, revocation, or denial of a license by the State Fire Marshal.
(1) A Request for Hearing must be timely filed.
(2) A Request for Hearing is timely filed when the request is postmarked or received by the State Fire Marshal within 20 days from the date of service of the notice of suspension, revocation, or denial, unless a 60-day deadline applies pursuant to ORS 183.435.
(3) If a Request for Hearing is not timely filed under section (c) of this rule, the person waives the right to a contested case under ORS Chapter 183.
(4) A person may write to or call the State Fire Marshal to informally discuss the notice of suspension, revocation, or denial; however, an informal communication does not extend the deadline established in 837-020-0105 subsection (3).
(5) A contested case may include:
(a) An Informal Conference;
(b) A Formal Hearing, or both.
(6) A contested case will be conducted pursuant to the provisions of ORS Chapter 183 and the rules adopted thereto.
(7) The State Fire Marshal may provide an opportunity for an Informal Conference. A request for an Informal Conference must be in writing; and must:
(a) Be addressed to the State Fire Marshal; and
(b) Clearly state the issue or issues to be discussed; and
(c) If the State Fire Marshal and the party or parties agree, an Informal Conference may be held by telephone.
(8) After an Informal Conference, the State Fire Marshal may amend, withdraw, or reduce the suspension, revocation, or denial. Such action will be taken in accordance with ORS Chapter 183 and the rules adopted thereto.
(9) A person may file a written Request for Hearing before or after an Informal Conference, at any time before the deadline established in section (3) of the Contested Cases section of OAR 837-020-0120.
(10) The State Fire Marshal is responsible to arrange for a hearings officer to conduct the Formal Hearing.
(11) The State Fire Marshal will set a date, time, and location for the Formal Hearing.
Stat. Auth.: ORS 476.030 & 480.310 - 480.385

Stats. Implemented: ORS 480.310 - 480.385

Hist.: OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007, f. 3-30-07, cert. ef. 4-1-07
837-020-0125
Penalties
The State Fire Marshal
may impose a civil penalty of up to $500 for each violation of ORS 480.310 through
480.385, and OAR 837-020-0040. All penalties are imposed in accordance with the
following penalty matrix established by the State Fire Marshal. Penalties may be
based on history, violation types, number of instances of violations identified,
and severity of violations.
Violation
Types, Instances, and Penalty Assessments
(1) The Types
of Violations are:
(a) Minimal
— Type I;
(b) Moderate
— Type II;
(c) Severe
— Type III.
(2) The violation
instance is determined based on the number of times a person, individual, owner,
or operator has committed a violation. A violation occurs each time a person, individual,
owner, or operator breaks a rule established by OAR 837-020-0040.
PENALTY MATRIX:
VIOLATION
TYPE - PENALTY INSTANCE 1 — 2 — 3 — 4 — 5
I MINIMAL
— $50 — $100 — $150 — $200 — $250
II MODERATE
— $150 — $200 — $250 — $300 — $400
III SEVERE
— $300 — $400 — $500 — $500 — $500
TYPE I MINIMAL
Eligibility
Documentation (excluding safety training)
Signs
Retail/Nonretail
locations
Phone # of
operator
It is a violation
of law
Days and
hours of operation of time separation facility not present or correct
License applications
not received by deadline
AST labels
for above ground tanks not present
Dispensing
instructions not present
Other __________________________
TYPE II MODERATE
Unlawful
dispensing at nonretail facilities
Certification
of correction of deficiencies not provided in accordance with Notice and Order
Weekly Site
Inspections not completed
Signs
No Smoking
Emergency
Fuel Shut Off Device location
Fire Extinguisher
location
Do Not Fill
Unapproved Containers
In Case of
Fire, Spill or Release
Do Not Fill
Portable containers
Discharge
static electricity
Other __________________________
TYPE III
SEVERE
Falsified
license application
Falsified
Weekly Site Inspection forms
Required
facility equipment not present or not in good working order
Safety training
not provided prior to allowing customer to dispense fuel
Unlawful
dispensing at retail facilities
Operating
a nonretail facility or conditional nonretail facility without a license
Other __________________________
Stat. Auth.: ORS
480.380

Stats. Implemented:
ORS 480.380 & 480.385

Hist.: FM
4-1991(Temp), f. 12-31-91, cert. ef. 1-1-92; FM 4-1992, f. 6-15-92, cert. ef. 7-15-92
(and corrected 6-22-92); OSFM 1-2002, f. & cert. ef. 2-25-02; OSFM 10-2002,
f. & cert. ef. 12-6-02; OSFM 6-2005, f. 5-24-05, cert. ef. 5-26-05; OSFM 1-2007,
f. 3-30-07, cert. ef. 4-1-07; OSFM 9-2012, f. & cert. ef. 10-2-12

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