Note: This rule applies to all operations for which a
notification is filed under ORS
527.670(6) on
or after January 1, 2024 or a notification filed prior to January 1, 2024 if
the operation is not completed on or before December 31, 2023. Rules that
relate to fish streams apply to an operation, other than an operation on small
forestland, for which a notification is filed on or after July 1, 2023.
(1) The purpose of this rule is to establish
a process for tracking Repeat Violators and requirements for financial
assurances.
(2) The State Forester
may make a finding that an operator, timber owner or landowner is a Repeat
Violator, pursuant to section 46(6), chapter 33, Oregon Laws 2022. The State
Forester's finding shall consider whether the operator, timber owner or
landowner has a history of significant violations that shows a pattern of
willful disregard for the requirements of ORS
527.610 to
527.770 or rules or orders
adopted or issued thereunder. The State Forester will maintain a list of Repeat
Violators for use with civil penalty calculations and financial
assurance.
(3) If the State
Forester makes a finding under subsection (2), the State Forester shall provide
notice to the operator, timber owner or landowner, who may challenge the
decision as an order of the State Forester pursuant to OAR 629-
672-0100.
(4) The State Forester
shall remove a Repeat Violator from the Repeat Violator list three years after
the last significant violation citation was issued. On rare occasions the State
Forester may remove a Repeat Violator from the Repeat Violator list sooner than
three years after the last significant violation citation if the Repeat
Violator provides evidence sufficient to demonstrate that significant
violations are unlikely to be repeated. In considering whether to remove the
Repeat Violator from the list, the State Forester may consider:
(a) Date the last citation was
issued;
(b) Changes in ownership,
personnel, or contractors;
(c)
Changes in training, techniques, or equipment;
(d) Recent violation history; and
(e) Any other evidence submitted or available
to the department relevant to the potential for future significant
violations.
(5) If
required by the State Forester, an operator, timber owner or landowner shall
provide financial assurance before conducting a new operation. The State
Forester may impose this requirement only if, within the preceding three-year
period, the State Forester has made a finding under section 46(6), chapter 33,
Oregon Laws 2022 applicable to the operator, timber owner or landowner. If
required by the State Forester, the operator, timber owner or landowner shall
acquire, post, and maintain a bond or other form of financial assurance as
approved by the State Forester during the entire operation until the State
Forester is notified that the operation is complete. The amount of the bond or
financial assurance is based on the operation size or the operation type,
whichever bond amount is greater:
(a) The
operation acreage size:
(A) Operations from 0
- 10 acres in size requires a bond of $20,000.
(B) Operations from 11 - 25 acres in size
requires a bond of $30,000.
(C)
Operations from 26 - 50 acres in size requires a bond of $40,000.
(D) Operations 51 acres or great in size
requires a bond of $60,000.
(b) The operation type:
(A) Operations of all types of road
construction or reconstruction without protected resources to include but not
limited to HLHL, Streams, Stream Crossing, Wetlands requires a bond of
$40,000.
(B) Operations of all
types of road construction or reconstruction with protected resources to
include but not limited to HLHL, Streams, Stream Crossing, Wetlands requires a
bond of $75,000.
(C) Operations of
pesticide application requires a bond of $30,000.
(c) If an operator, timber owner or landowner
with a new operation involving two or more protected resources, the State
Forester may assess a bond as appropriate for the risk of the operation up to a
value of $250,000.
(6)
The State Forester may make a claim against the bond or financial assurance and
apply any money received towards correcting the conditions that give rise to
the claim if the State Forester determines that:
(a) Actions required under the forest
practice rules were not completed and the State Forester would incur costs to
repair damage or correct an unsatisfactory condition;
(b) Protected resources were
damaged;
(c) Fines or civil
penalties that were assessed for the violation; or
(d) The actions taken during the operation
otherwise caused the State Forester to incur costs to correct the conditions
that gave rise to the claim.