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Real Estate in Medford Oregon - DOC

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Real Estate in Medford Oregon document sample

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									                                  STATE OF OREGON
                          BEFORE THE HEARING OFFICER PANEL
                     FOR THE ENVIRONMENTAL QUALITY COMMISSION


IN THE MATTER OF:                            )
                                             )        PROPOSED ORDER
                                             )
    Thom Martin,                             )         Hearing Officer Panel Case No. G60626
                                             )         Agency Case No. AQ/OB-WR-00-070
                                             )         JACKSON COUNTY
                          Respondent.        )               (DEQ)


                                          HISTORY OF THE CASE

        The Department of Environmental Quality (DEQ) issued a Notice of Violation and
Assessment of Civil Penalty pursuant to ORS 468.126 through 468.140, ORS Chapter 183, and
OAR Chapter 340, Divisions 11 and 12, to respondent Thom Martin on or about July 10, 2000.
The notice alleged as follows: That on or about March 7, 2000 respondent caused or allowed the
opening burning of more than 5 cubic yards of prohibited materials, including electrical wiring,
carpeting, an appliance, tar paper, plastic and aerosol cans, on respondent’s property at 59 South
Stage Road, Medford, Oregon in violation of OAR 340-264-0060(2)--(violation 1); that on or
about March 7, 2000 respondent caused or allowed the open burning of construction and/or
demolition debris (wood waste) inside an incorporated area in violation of OAR 340-264-
0174(4)1 [sic] on the same property--violation (2); and that since March 8, 2000 respondent had
established, operated or maintained a solid waste disposal site on his property without a permit in
violation of OAR 340-093-0050(1)--violation (3). The notice assessed civil penalties in the
amount of $3,500 for violation 1 and $1,117 for violation 3, and sought an order requiring
respondent to correct any continuing violations and remove all solid waste from his property and
properly dispose of that waste.



1
    OAR 340-264-0174 does not even exist. DEQ meant to cite OAR 340-264-0170(5), which provides:
          340-264-0170--Coos, Douglas, Jackson and Josephine Counties. Open burning prohibitions for Coos,
         Douglas, Jackson and Josephine Counties:
         (1) Open burning control areas: * * * (c) The Rogue Basin open burning control area * * * is located in
         Jackson and Josephine Counties. * * *.
         (5) Construction and Demolition open burning is prohibited within the * * * Rogue Basin open burning
         control areas * * *.

           The Notice of Violation and Assessment of Civil Penalty is amended to read “OAR 340-264-0170(5),”
           instead of OAR 340-264-0174(4).”

Proposed Order
DEQ (Martin)
Page 1 of 8
                                                                                                G60626Mar
        Respondent was served with the Notice of Violation and Assessment of Civil Penalty by
certified mail on July 31, 2000. On or about August 12, 2000 respondent filed a written request
for hearing and an answer.

       A hearing was held by telephone on April 4, 2002 before Ken L. Betterton,
administrative law judge. David LeBrun, environmental law specialist, represented DEQ.
Respondent appeared pro se. Anna Kemmerer and Les Carlough testified as a witness for DEQ.
Respondent testified in his own behalf.

       During the hearing DEQ represented that respondent’s property had been cleared of any
remaining debris. DEQ withdrew the allegation for violation 3 in the Notice of Violation and
Assessment of Civil Penalty.2

        At the beginning of the hearing, and at various times during the hearing, respondent
complained in general that he had not had enough time to gather photographs and documents to
prove that he had a fire on his property in November or December 1999, and to prove some other
things. Claimant had no reasonable explanation as to why he had not and could not have
assembled that evidence in the nearly two years between when he was served with the Notice of
Violation and Assessment of Civil Penalty and the hearing. To the extent that respondent’s
protestations were motions to postpone or to continue the hearing, his motion(s) were denied.

       The record closed at the conclusion of the hearing on April 4, 2002, and the matter taken
under advisement.

                                        EVIDENTIARY RULING

        Administrative Law Judge Exhibits A and B, DEQ Exhibits 1 through 6, 11 and 12 were
admitted into the record without objection. Respondent objected to Exhibit 7 because it had been
prepared by a DEQ employee who no longer worked for the agency, and to Exhibits 9 and 10 on
hearsay grounds. That the employee no longer works for DEQ does not make Exhibit 7
inadmissible. That Exhibits 9 and 10 were hearsay does not make those documents inadmissible.
I overruled respondent’s objections and admitted Exhibits 7, 9 and 10 into the record. DEQ
withdrew Exhibit 8 because it related to allegation 3, which DEQ withdrew during the course of
the hearing.

        Administrative Law Judge Exhibit C (a copy of the Notice of Violation and Assessment
of Civil Penalty--the same document as DEQ’s Exhibit 2) has been marked since the hearing and
admitted into the record. Exhibit C has the certificate of mailing and postal receipt showing that
respondent was served with the notice on July 31, 2000. Exhibit 2 has no certificate of mailing
or evidence of service.

2
  Respondent removed all the solid waste from the property sometime after July 2000. Because respondent had
removed the waste, and because DEQ withdrew its allegation 3, the Department Order in the Notice of Violation
and Assessment of Civil Penalty, requiring respondent to remove the solid waste from the property within 20 days,
is moot.

Proposed Order
DEQ (Martin)
Page 2 of 8
                                                                                                G60626Mar
                                            ISSUES

       (1) Did respondent violate OAR 340-264-0060(2) by causing or allowing the open
burning of prohibited material on his property on or about March 7, 2000, and if so, what penalty
should be imposed under OAR Chapter 340, Divisions 11 and 12?

       (2) Did respondent violate OAR 340-264-0170(5) by causing or allowing the open
burning of construction and/or demolition debris inside an incorporated area?

                                    FINDINGS OF FACT

        (1) On March 9, 2000 a DEQ environmental specialist responded to a complaint filed by
the Medford Fire Department of an open burn at rural property located at 59 South Stage Road,
Medford, Oregon. Respondent owned about 10 acres of land at that location. Respondent’s
property was outside the Medford city limits, but within Jackson County, and within the Rogue
Basin area. The fire department responded on March 7, 2000 to a complaint of an open burn on
respondent’s property and extinguished a fire at the property. (Ex. 10.) The fire department
reported to DEQ the burning of two piles of demolition debris, each pile about “18 feet round &
5 feet high.” (Id. at 4.)

        (2) The DEQ environmental specialist went to respondent’s property on March 9, 2000
and examined the area. The specialist saw two piles of debris that she estimated were each about
18 feet in circumference and five feet high. Those piles appeared to be debris from a demolished
building. The piles consisted primarily of broken and crushed boards and lumber, with some
plywood roofing sheeting, wood flooring, roof tarpaper and asphalt shingles, electrical wiring,
carpeting, household items made of plastic at different places in the piles. One debris pile also
had a battered and smashed dishwasher on it. (Ex. 11.) The specialist saw that much of the
lumber and boards had been charred or burned. She also observed that some electrical wiring,
some roof tarpaper, some plastic items, and the dishwasher had been charred or burned. The
specialist did not observe that any asphalt roofing shingles had been burned or charred. The
environmental specialist did not see any smoldering or smoke in the debris piles, nor could she
tell when the piles had burned. The DEQ specialist also saw, some distance away from the two
larger piles, a small pile, about four feet in circumference and six inches high, of household
garbage of aerosol cans and other typical kitchen garbage, that had been charred or burned. The
specialist could not tell when that pile had been burned.

        (3) On March 9, 2002 the DEQ specialist talked to a man on respondent’s property on
who owned an environmental development company. The man told the specialist that
respondent had hired him to help dispose of debris on the property, and that he (the man) had
started a fire on the property on March 7, 2000.

       (4) Respondent lived in a house on his 10-acre property. He moved three old houses onto
his property in 1999, one in June, one in July and one in September. Respondent planned to join

Proposed Order
DEQ (Martin)
Page 3 of 8
                                                                                 G60626Mar
the houses together, fix them up and make a bed and breakfast resort. All three of the houses
were vacant and dilapidated and sitting on pilings in late 1999.

        (5) In November or December 1999, the top story and roof of one of the houses burned.
Authorities suspected the fire might have been caused by arson. Respondent could not do
anything with the house for many weeks while the fire investigation authorities and his insurance
carrier investigated the fire. Respondent then demolished the house, resulting in the piles of
broken and crushed lumber and boards, the roofing and siding, and household contents that the
DEQ environmental specialist observed on March 9, 2000. Respondent rented dumpsters, as he
could afford them, to haul off the debris from the demolished house.

        (6) On March 7, 2000 respondent piled wood debris from the demolished house, yard
debris, limbs and stumps from some trees that burned from being close to the house when it
burned in November or December 1999, into a pile separate from the two debris piles shown in
Exhibit 11, and burned the pile. Respondent did not have a permit from DEQ to burn demolition
wood debris on March 7, 2000. Respondent did not have a permit from the fire department to
burn yard debris on March 7, 2000.

       (7) Sometime after March 9, 2000 the DEQ environmental specialist who inspected
respondent’s property on March 9 first learned about the fire that burned respondent’s house in
November or December 1999. DEQ would not issue a notice of civil penalty under OAR 340-
264-0060 to a homeowner if the homeowner’s house burned down from an accidental fire or
from arson.

       (8) DEQ did not present testimony at the hearing from the fire department to describe
what occurred on respondent’s property on March 7, 2000.

                                        CONCLUSIONS OF LAW

        (1) DEQ failed to prove that respondent violated OAR 340-264-0060(2) by the open
burning of prohibited materials, including electrical wiring, carpeting, an appliance, tarpaper,
plastic and aerosol cans, on his property on March 7, 2000. No civil penalty should be imposed
on respondent for this violation.

         (2) Respondent violated OAR 340-264-0170(5) by the open burning of construction
and/or demolition debris inside an incorporated area.3 No civil penalty should be imposed
because DEQ did not ask for a civil penalty in its Notice of Violation and Assessment of Civil
Penalty.




3
 Although the Notice of Violation and Assessment of Civil Penalty refers to “an incorporated area,” that term does
not appear in OAR 340-264-0170. The operative term in the rule deals with an “open burning control area,” which
appears to have nothing to do with an incorporated area.

Proposed Order
DEQ (Martin)
Page 4 of 8
                                                                                                 G60626Mar
                                                   OPINION

        ORS 183.450(2) provides, in part, “The burden of presenting evidence to support a
position in a contested case rests on the proponent of the fact or position.” As set forth above,
DEQ alleged that respondent violated OAR 340-264-0060(2) by causing or allowing the open
burning of more than five cubic yards of prohibited materials, including electrical wiring,
carpeting, an appliance, tar paper, plastic and aerosol cans, and that he violated OAR 340-264-
0170(5) by the open burning of construction and/or demolition debris (wood waste) inside an
incorporated area. The burden is on DEQ, as the state agency making the allegations, to prove
the alleged violations. Garton v. Real Estate Commissioner, 127 Or App 340, 342 (1994).

Violation 1

        DEQ prohibits open burning in certain circumstances. OAR 340-264-0060 provides, in
part:
        This rule applies to all open burning within the purview of this Division * * *.
        *****
        (2) No person shall cause or allow to be initiated or maintained any open burning of any
        wet garbage, plastic, wire insulation, automobile part, asphalt, petroleum product,
        petroleum treated material, rubber product, animal remains, or animal or vegetable matter
        resulting from the handling, preparation, cooking, or service of food or any other material
        which normally emits dense smoke or noxious odors.
        * * * * *.

        DEQ failed to prove that respondent violated OAR 340-264-0060(2). A DEQ
environmental specialist visited respondent’s property on March 9, 2000. She observed two
piles of charred and burned demolition debris from a house. DEQ presented hearsay in the form
of a report from the fire department that it had responded to the property on March 7, 2000 and
extinguished a fire in the two piles of demolition debris. The report did not delineate which
items or materials in the pile burned on March 7. (Ex. 10.) Respondent denied that he burned the
two debris piles. He admitted starting a fire in another pile consisting only of construction wood
debris, yard trimmings and tree stumps.

        Respondent’s house that became the two piles of debris relevant to this case burned in
November or December 1999, either from an accidental fire or from arson. DEQ presented no
evidence at the hearing as to what if any of the few items of prohibited materials, i.e., electrical
wiring, carpeting, the dishwasher, tarpaper, plastic or aerosol cans4, described in the two piles or
shown in the photographs burned on March 7, 2000, as opposed to what likely burned in the fire
in November or December 1999. Most of the materials shown in the photographs taken of the
two piles on March 9 consist of construction or demolition debris, which would not be prohibited

4
 The only testimony or evidence about aerosol cans referred to one or more of them in the small pile of kitchen
garbage located separately and away from the two large debris piles in question. DEQ’s witness could not say
whether the aerosol can or cans burned on March 7, 2000 or in the house fire months earlier.

Proposed Order
DEQ (Martin)
Page 5 of 8
                                                                                                 G60626Mar
material. While respondent’s testimony that he or his agent did not burn anything in the two
piles described by the fire department was not credible, the gist of Violation 1 is not whether
respondent burned construction or demolition material in the two piles (that is addressed in
Violation 2), but whether he burned prohibited material on March 7, 2000 as alleged and which
is prohibited by OAR 340-264-0060(2). It is possible that respondent burned construction or
demolition debris in the two piles on March 7, but did not burn any prohibited material. DEQ
would not have issued a violation for OAR 340-264-0060(2) to respondent because his house
burned in November or December of 1999 because of an accidental fire or because of arson.
(There would be no showing in such a case that respondent “caused or allowed to be initiated or
maintained” an open burning. Moreover DEQ alleged that respondent did the open burning on
March 7, 2000, not in November or December 1999.)

        DEQ may have proven its case if it had called as a witness or witnesses at the hearing
individuals from the fire department who responded to the fire on March 7, 2000, who could
have given details about the fire and what they observed about what had been burned that day,
rather than rely on the fire department’s brief, conclusory written report. However, DEQ chose
not to call any such witness to testify. DEQ has the burden of proof to prove its allegation.
Respondent does not have any burden to disprove the allegation. Because DEQ failed to prove
by a preponderance of the evidence that respondent caused or allowed open burning of
prohibited material on March 7, 2000, DEQ failed to carry its burden of proof for Violation 1.

Violation 2

        DEQ also alleged that respondent violated OAR 340-264-0170(5) by causing or allowing
to be initiated the open burning of construction and/or demolition debris inside an incorporated
area.

OAR 340-264-0170 provides, in part:
     Open burning prohibitions for Coos, Douglas, Jackson and Josephine Counties:
     (1) Open burning control areas:
     *****
     (c) The Rogue Basin open burning control area * * *.
     *****
     (5) Construction and Demolition open burning is prohibited within the * * * Rogue Basin
     open burning control areas unless authorized pursuant to OAR 340-264-0180.5 * * *.


5
    OAR 340-264-0180 provides, in part:
         Open Burning of commercial, industrial, construction or demolition waste on a singly occurring or
         infrequent basis or the open burning of yard debris which is otherwise prohibited, may be permitted by a
         letter permit issued by the Department in accordance with this rule and * * *.

“Construction Open Burning” means the open burning of any construction waste. OAR 340-264-0030(10).

“Construction Waste” means any waste material actually resulting from or produced by a building or construction
project. Examples of construction waste are wood, lumber, paper, crating and packing materials used during

Proposed Order
DEQ (Martin)
Page 6 of 8
                                                                                                  G60626Mar
        Respondent acknowledged that he burned a separate pile of construction or demolition
debris on March 7, 2000. Respondent’s testimony that he or his agent did not burn any debris in
the two piles that the fire department responded to extinguish was not credible. Respondent did
not have a permit to burn construction or demolition debris on March 7, 2000. Therefore,
respondent violated OAR 340-264-0170(5). However, DEQ did not seek a civil penalty from
respondent for Violation 2.

                                             PROPOSED ORDER

         I propose that the Commission enter an order as follows:

         (1) Find that respondent did not violate OAR 340-264-0060(2), and not impose any civil
         penalty; and

         (2) Find that respondent violated OAR 340-264-0170(5), but not impose any civil penalty
         because DEQ asked for no civil penalty.



Dated this _____ day of May, 2002.                             _____________________________
                                                               Ken L. Betterton
                                                               Administrative Law Judge
                                                               Hearing Officer Panel




                                               Appeal Procedures

       If you are not satisfied with this decision, you have the right to have the decision reviewed by
the Oregon Environmental Quality Commission. To have the decision reviewed, you must file a

construction, materials left after completion of construction and materials collected during cleanup of a construction
site. OAR 340-264-0030(11).

“Demolition Open Burning” means the open burning of demolition waste. OAR 340-264-0030(12).

“Demolition Waste” means any material actually resulting from or produced by the complete or partial destruction
or tearing down any man-made structure or the clearing of any site for land improvement or cleanup excluding yard
debris (domestic waste) and agricultural waste. OAR 340-264-0030(13).

“Open Burning Control Area” means an area established to control specific open burning practices or to maintain
specific open burning standards * * *. The open burning control areas in the state are:
*****
(c) The Rogue Basin open burning control area, * * *.
* * * * *. OAR 340-264-0030(26).

Proposed Order
DEQ (Martin)
Page 7 of 8
                                                                                                   G60626Mar
"Petition for Review" within 30 days of the date this order is served on you as provided in Oregon
Administrative Rule (OAR) 340-011-0132(1) and (2). The Petition for Review must be filed with:

                 Stephanie Hallock, Director
                 Department of Environmental Quality
                 811 SW Sixth Avenue
                 Portland, OR 97204.

       Within 30 days of filing the Petition for Review, you must also file exceptions and a brief as
in provided in OAR 340-011-0132(3). If the petition, exceptions and brief are filed in a timely
manner, the Commission will set the matter for oral argument and notify you of the time and place of
the Commission's meeting. The requirements for filing a petition, exceptions and briefs are set out in
OAR 340-011-0132.

        Unless you timely and appropriately file a Petition for Review as set forth above, this
Proposed Order becomes the Final Order of the Environmental Quality Commission 30 days from
the date of service on you of this Proposed Order. If you wish to appeal the Final Order, you have 60
days from the date the Proposed Order becomes the Final Order to file a petition for review with the
Oregon Court of Appeals. See ORS 183.400 et. seq.


  STATE OF OREGON - HEARING OFFICER PANEL - EMPLOYMENT DEPARTMENT




Proposed Order
DEQ (Martin)
Page 8 of 8
                                                                                     G60626Mar

								
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