BOARDMAN — Last month, the Department of Environmental Quality issued nine penalties across the state, including two businesses in Eastern Oregon that are now filing appeals against the complaints.
The DEQ notified North Dakota-based real estate company PROffutt Limited Partnership of a penalty, totaling $41,399, on Aug. 27 following a March inspection of their development project — Port View Apartments — in Boardman.
According to the DEQ, the company failed to develop an adequate sediment and erosion control plan mandated in the terms of their construction permit. The fine for failing to develop a proper plan is $32,052.
DEQ Public Affairs Specialist Laura Gleim said that sediment and erosion control plans protect local fish.
“Having that plan in place, and implementing it, prevents erosion and sediment from entering waterways. When it rains, that stormwater can wash across the construction site, pick-up sediment and transfer it to waterways,” Gleim said.
The DEQ stated that the economic benefit of avoiding implementing this plan was $24,061.
Gleim said that part of the penalty is meant to help “level the playing field.”
In addition, the DEQ reported there were 19 days during the construction of the Port View Apartments so far that yielded enough rain to require visual stormwater runoff monitoring. Such monitoring was never conducted, which tacked on an additional $9,347 fine.
On Sept. 11, BC Contracting, in charge of construction of the apartments, issued an appeal against the complaint.
In a letter to the DEQ, project manager Ryan Overbeck requested a contested case hearing on the matter, stating that the specific elevation of the project site did not allow for stormwater runoff to enter local surface waters.
Overbeck also said the permit that PROffutt is said to have violated was incorrectly assigned to the Portview Apartments development.
“At this time, we don’t have any comment,” Overbeck said. “This is a pending legal matter.”
Gleim said the DEQ didn’t have a response to the appeal yet.
BC Contracting will meet with an environmental law specialist from the DEQ to try to settle on an agreement. If the parties are unable to reach agreement, the case will be handed over to the Oregon Office of Administrative Hearings and decision will be made in court, which BC Contracting will be able to appeal.
Gleim said that usually, the process doesn’t get that far, but that appeals to DEQ penalties are not uncommon.
In 2017, the news website Northeast Oregon Now reported that BC Contracting and PROffutt broke ground on the 240-unit apartment development at 320 Northeast Columbia Ave. The project is still under construction, but there are apartments available.
The DEQ also fined B&K Auto Salvage in La Grande $9,258 on July 29, for an oil spill and the mislabeling of used oil. The company is also planning to appeal the decision.
According to the DEQ enforcement action letter that was sent to the business, the salvage yard was in violation of two codes. The first, for which it received the penalty, was “failing to immediately clean up spills or releases of used oil.” The second, which was without penalty, was failing to label containers of used oil with the words “Used Oil.”
According to the president of B&K Auto Salvage, Jake Hanson, there was not an oil spill, but the business was in violation of the second code. Hanson said B&K uses a DEQ-certified furnace to heat the shop during the winter and the oil for it was incorrectly labeled as waste oil.
“It needed to be labeled as used oil instead,” Hanson said.
Hanson said B&K will be appealing the decision because the citation was due to an improper use of wordage, not an oil spill. The appeal hearing is set for Sept. 25.
The DEQ said in an email that the department maintains the position that there was a spill. DEQ said it conducted an investigation March 20, 2019 based on a complaint filed by a former employee that he was told by the site manager to take used fuel from scrap vehicles and dump it behind the south fence of the facility. When the DEQ investigated, the inspector noticed a strong smell of petroleum and an oily sheen to puddles near the south fence. The inspector took soil samples from the area and they tested positive for elevated levels of oil, indicating petroleum-based contamination. According to the DEQ letter, the cited spill had not been cleaned up as of July 29.
The amount of the penalty was determined by a formula set by the DEQ, according to the letter sent. The base penalty for a Class I violation, which the oil spill was, is $4,000. The base fee is then multiplied by one-tenth and added to the base after being multiplied by the scoring of other factors. The DEQ considers if the business in question has had previous citations and if they were handled — this was B&K’s first citation and therefore this factor received a zero value. It also considers whether the violation was a single or ongoing occurrence. Because this violation involved multiple instances of oil being dumped, this factor received a value of four. The DEQ also considers the “mental state” of the violators, and in this case B&K received a 10 for purposefully telling the employee to dump the oil where it cannot be seen. The score for the actions taken to correct the violation was negative two because efforts were eventually made to minimize the effects of the violation, as B&K had met with Steve Rich Environmental Construction to discuss cleaning up the spill. The salvage company was also given a fee of $458, the approximate dollar value of the benefit gained and the costs avoided or delayed as a result of noncompliance, according to the letter. This totaled to the $9,258 penalty.
“DEQ issued this penalty because the used oil you generate may be harmful to human health and the environment when released,” the letter said.