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					                BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
                              STATE OF OREGON
                                    for the
                    ENVIRONMENTAL QUALITY COMMISSION



IN THE MATTER OF:                                                 ) PROPOSED ORDER
                                                                  )
VICKERS/NELSON & ASSOCIATES,                                      )
Respondent,                                                       )
                                                                  ) OAH Case Number: 108347
                                                                  ) Agency Case Number: AQ/AB-NWR-02-181
                                                                  ) Multnomah County
                                                                    (DEQ)
                                         HISTORY OF THE CASE

      On March 6, 2003, the Department of Environmental Quality (Department) issued a Notice of
Assessment of Civil Penalty (Notice) to Respondent Vickers/Nelson & Associates (Respondent). The
Notice alleged that Respondent violated ORS 468A.715(1) and OAR 340-248-0110(2) by allowing an
unlicensed person to perform an asbestos abatement project on a facility that it operated.

      On March 24, 2003, Respondent requested a hearing and submitted an Answer. A hearing was
held on July 11, 2003, at 9:30 a.m., in Portland, Oregon. Andrea H. Sloan, from the Office of
Administrative Hearings, presided as the Administrative Law Judge (ALJ). Attorney David Meyer
represented Respondent. Testifying on behalf of Respondent were Linda Cameron, Project Manager,
and Don Larson, Assistant Director of Facilities for Portland Public Schools (PPS). Also present were
Doug Nelson and Greg Vickers. Environmental Law Specialist Bryan Smith represented the
Department. Dave Wall, Asbestos Control Analyst, testified for the Department.

                                                    ISSUES

      (1) Whether Respondent owned or operated the James John Elementary School property
during August 2002.

       (2) If so, whether the civil penalty assessment is appropriate.

                                       EVIDENTIARY RULINGS

      Panel Exhibits P1 through P4 and the Department Exhibits A1 through A3, A5 through A12,
and R101 through R114, R116, and R120 through R122 were admitted into the record without
objection.

      Respondent objected to Exhibit A4, arguing that page 5 of this exhibit contained hearsay. The
objection is overruled and the exhibit was admitted because hearsay is generally admissible in an



In the Matter of Vickers/Nelson & Associates, Inc., Page 1 of 9
Office of Administrative Hearings Case No. 108347
administrative hearing. ORS 183.450. The weight to be given the hearsay evidence is a determination
that I will make after considering the reliability of the evidence.

        The Department objected to Exhibits R115, R117 and R118, arguing that evidence
relating to Princeton Property Management (Princeton) is irrelevant. Respondent countered that
the Princeton documents were relevant because they demonstrated a precedent set by the
Department in cases dealing with property management companies, such as Respondent.

       Under ORS 183.450(1), "Irrelevant, immaterial or unduly repetitious evidence shall be
excluded * * *. All other evidence of a type commonly relied upon by reasonably prudent
persons in conduct of their serious affairs shall be admissible." See also OAR 137-003-0610,
which essentially restates the statute. And, the Department‟s own rules limit the scope of a
contested case hearing to “matters that are relevant and material to either proving or disproving
the matters asserted in the Department‟s notice[.]” OAR 340-011-0131(a). The objections to
Exhibits R115, R117 and R118 are sustained. The exhibits are not admitted into the record.

       The Department objected to Exhibit R119, arguing that references to AHERA1 were irrelevant.
The Department further argued that Respondent‟s reliance on AHERA was an affirmative defense, and
because Respondent did not raise this affirmative defense in its Answer, the defense was deemed
waived. By its terms, AHERA applies to schools, and imposes responsibilities on schools concerning
asbestos in school properties. In this case, PPS is not named in the Department‟s Notice. Respondent
is the only entity named in the Notice and AHERA does not apply to Respondent‟s actions. The
Department‟s objection to Exhibit R119 regarding references to AHERA is sustained.

      The Department and Respondent stipulated that the flooring material contained asbestos, and
that Addison Interiors‟ employees removed the flooring.

      The record was left open until August 15, 2003, for the Department to submit a legal brief and
for Respondent to have an opportunity to respond. The Department requested an extension of time to
submit its brief. The request was granted and the record closed on August 29, 2003.

                                           FINDINGS OF FACT

      (1) Respondent is a project management company doing business in the State of Oregon.
In 2001, Respondent was known as Vickers/Foster & Associates Construction Program
Management, Inc. (Exs. A7 and R101.)

      (2) On September 12, 2001, Respondent entered into a contract with PPS to provide
project management services for the district‟s facility capital improvement program. This
contract included renovation work at the James John Elementary School (school), located at
7439 North Charleston Avenue, Portland, Oregon. The work at the school involved, inter alia,

1
  AHERA is the “Asbestos Hazard Emergency Response Act” created as part of the EPA‟s “Asbestos in
the Schools Rule,” which is part of the Toxic Substances Control Act. AHERA regulations require
schools to inspect for asbestos, implement response actions and submit plans concerning abatement.
AHERA also requires the use of accredited asbestos inspectors, air sampling and waste disposal
procedures. 40 CFR 763, Subpart E.


In the Matter of Vickers/Nelson & Associates, Inc., Page 2 of 9
Office of Administrative Hearings Case No. 108347
removing and replacing sheet vinyl from the floor of the boy‟s restroom in the Head Start
modular classroom building at the site. (Exs. A3 and A4.)

      (3) As part of its agreement with PPS, Respondent was designated as an “owner‟s
representative” for the school renovation project. PPS and Respondent understood this to mean
that Respondent was the intermediary or “go between” between PPS and all contractors hired to
do the renovation work. All questions from contractors went to Respondent, who then, if
necessary, relayed the questions to PPS. PPS, in turn, would reply to Respondent, who would
then communicate with the contractors. Contractors did not communicate directly with PPS.
PPS had ultimate authority regarding the budget, scope and final scheduling issues for the school
project. One of Respondent‟s responsibilities, as an owner‟s representative, was to solicit bids
from qualified contractors for the school renovation project. The invitation to quote was printed
on Respondent‟s letterhead, and explained that the bids should be sent to Respondent‟s offices.
Respondent received bids for the project, and forwarded these bids, along with its
recommendations, to PPS. Following this process, PPS entered into a contract with Cedar Mill
Construction Company (Cedar Mill) on or about August 1, 2002. (Exs. A4 and R104; testimony
of Larson and Cameron.)

      (4) Linda Cameron was the project management consultant assigned by Respondent to
oversee the school project. Ann White was the assigned project manager from PPS. (Testimony
of Larson and Cameron.)

       (5) Cedar Mill was required, by agreement, to provide Respondent with a list of all
subcontractors it hired for the school job. Cedar Mill did not do so. At some point prior to
August 7, 2002, Cedar Mill contracted with Addison Interiors (Addison) to remove the flooring
in the boy‟s restroom in the Head Start modular classroom building. (Ex. A2; testimony of
Cameron and Wall.)

       (6) Shortly before 2:00 p.m. on August 7, 2002, Ms. White e-mailed Ms. Cameron about
the sheet vinyl at the school. Ms. White wrote, “CONTRACTOR CANNOT REMOVE UNTIL
WE TEST FOR ASBESTOS.” (Emphasis in original.) Ms. White confirmed that she had also
left a voice mail message for Ms. Cameron about the sheet vinyl. (Ex. R109.)

       (7) On August 8, 2002, Ms. Cameron wrote a generic letter to Cedar Mill that PPS had
authorized Respondent to notify Cedar Mill to proceed with the work at the school. Ms.
Cameron never sent an amended notice to proceed letter after learning that PPS suspected that
the flooring might have asbestos-containing materials (ACM). (Ex. R110; testimony of
Cameron.)

      (8) PPS had an ongoing contract with Apex Environmental, Inc. (Apex) to perform
environmental consulting services for the school district. On August 9, 2002, Ms. Cameron
contacted Apex on behalf of PPS and asked the company to test the suspect sheet vinyl for
asbestos. Ms. Cameron learned that Apex could not test the vinyl until August 12, 2002,
following the weekend. Ms. Cameron then contacted James Anderson, owner of Cedar Mill, and
advised Mr. Anderson that Apex would be testing the vinyl and that no work was to be done on




In the Matter of Vickers/Nelson & Associates, Inc., Page 3 of 9
Office of Administrative Hearings Case No. 108347
the vinyl until the test results were received on August 13, 2002. (Ex. R122; testimony of
Cameron.)

       (9) On August 12, 2002, Ms. Cameron was on site at the school and handed out
construction badges to the workers. Ms. Cameron spoke with a gentleman whom she assumed
was a foreman for Cedar Mill, but who actually was a foreman for Addison. Ms. Cameron told
the foreman that he was not allowed to touch the flooring until after Apex had tested it for
asbestos. The foreman told Ms. Cameron that he had seen Apex personnel on site. Ms.
Cameron never actually spoke to Cedar Mill personnel on August 12, 2002 regarding the
pending asbestos testing. (Testimony of Cameron.)

      (10) On August 13, 2002, Ms. Cameron learned that the flooring tested positive for ACM,
and notified Mr. Anderson of Cedar Mill of the test results. Mr. Anderson told Ms. Cameron
that Addison had already removed the flooring. Ms. Cameron “shut down the site” until the
extent of contamination could be determined. (Exs. A2, A11 and R111; testimony of Cameron.)

      (11) On or about August 13, 2002, Chris Boyce, the environmental coordinator for PPS,
contacted Dave Wall of the Department‟s asbestos control program to report a potential asbestos
problem at the school. Mr. Boyce told Mr. Wall that the sheet vinyl in question had already been
removed. Mr. Wall instructed Mr. Boyce to have an asbestos contractor clean up the site.
(Testimony of Wall.)

      (12) On August 14, 2002, Mr. Wall conducted an inspection of the site and an
investigation into the asbestos complaint at the school as part of his duties with the Department.
During the inspection, Mr. Wall observed that the bathroom flooring material was torn up and
damaged. Mr. Wall found flooring material in an uncovered dumpster on site. The flooring
material, which contained friable2 asbestos, was removed dry3 and carried through the school
corridors to the dumpster, causing potential release of asbestos fibers into the building and
environment.4 Addison did not properly package or label the ACM that they removed from the
boy‟s restroom. (Testimony of Wall.)

      (13) Removal of the flooring material at the school was an asbestos abatement project.5
Mr. Wall checked the Department‟s databases and determined that Addison Interiors is not a
licensed asbestos abatement contractor.6 (Testimony of Wall.)
2
  “„Friable asbestos material‟ means any asbestos-containing material that hand pressure can crumble,
pulverize or reduce to powder when dry.” ORS 468A.700(8).
3
  If asbestos fibers are “adequately wet” with a liquid, the release of particulate asbestos materials is
minimized. OAR 340-248-0010(3).
4
  “Asbestos fibers are respiratory hazards proven to cause lung cancer, mesothelioma and asbestosis and
as such, are a danger to the public health.” * * * (5) If improperly performed, an asbestos abatement
project creates unnecessary health and safety hazards that are detrimental to citizens and to the state in
terms of health, family life, preservation of human resources, wage loss, insurance, medical expenses and
disability compensation payments.” ORS 468A.705(1) and (5).
5
  “„Asbestos abatement project‟ means any demolition, renovation, repair, construction or maintenance
activity of any public or private facility that involves the repair, enclosure, encapsulation, removal,
salvage, handling or disposal of any material with the potential of releasing asbestos fibers from asbestos-
containing material into the air.” ORS 468A.700(4).


In the Matter of Vickers/Nelson & Associates, Inc., Page 4 of 9
Office of Administrative Hearings Case No. 108347
                                        CONCLUSIONS OF LAW

       (1) Respondent was an operator of the school during August, 2002.

       (2) The amount of civil penalties assessed by the Department was appropriate.

                                                   OPINION

      “The burden of presenting evidence to support a fact or position in a contested case rests
on the proponent of the fact or position.” ORS 183.450(2). Here, the Department has the
burden of proving its allegations by a preponderance of the evidence. See, Harris v. SAIF, 292
Or 683, 690 (1982) (general rule regarding allocation of burden of proof is that the burden is on
the proponent of the fact or position.); Cook v. Employment Div., 47 Or App 437 (1980) (in the
absence of legislation adopting a different standard, the standard in administrative hearings is
preponderance of the evidence). Proof by a preponderance of evidence means that the fact
finder is persuaded that the facts asserted are more likely true than false. Riley Hill General
Contractors v. Tandy Corp., 303 Or 390 (1989).

       Respondent argued that it should not be subject to penalty assessments in this matter
because it was not liable for the unlicensed asbestos abatement project at the school. In support,
Respondent argued that PPS controlled the project (in addition to being the owner and operator
of the school), and that Respondent was merely an owners‟ representative, and a project
manager, on the school renovation project at issue. Respondent relies on common law
concerning agency in support of its argument.

       The Department argues that, according to its administrative rules, Respondent met the
definition of owner or operator, and was, therefore, liable for the unlicensed asbestos abatement
project at the school.

       I find that the Department has met its burden with respect to the alleged violation.

Owner or Operator of a Facility

       ORS 468A.715(1) requires that “an owner or operator of a facility containing asbestos
shall require only licensed contractors to perform asbestos abatement projects.” The statute does
not define “owner or operator,” however, that phrase is defined by the Department‟s
administrative rules. “„Owner or operator‟ means any person who owns, leases, operates,
controls or supervises a facility being demolished or renovated or any person who owns, leases,
operates, controls, or supervises the demolition or renovation operation, or both.” OAR 340-
248-0010(33).

      Respondent correctly argues that PPS owned and operated the school property. This fact
is undisputed and is supported by the record. Indeed, the Department‟s Notice is premised on the
6
 The Department is authorized to license asbestos abatement contractors. ORS 468A.715 and OAR 340-
248-0120.


In the Matter of Vickers/Nelson & Associates, Inc., Page 5 of 9
Office of Administrative Hearings Case No. 108347
fact that Respondent controlled or supervised the renovation project at the school.7 The
applicable statutes and rules do not define the terms “control or supervise,” and the meaning of
these terms is, therefore, subject to some interpretation. Respondent argues that, based on this
record, it did not supervise or control the school renovation because PPS retained ultimate
authority over project scheduling, budgets and contracting. The Department, however, argues
that Respondent did control or supervise the renovation project, based on the facts presented at
hearing. Specifically, the Department relies on the facts that Respondent solicited bids on behalf
of PPS and made recommendations on the selection of contractors, and that Ms. Cameron was
responsible for overseeing the work of the contractors and subcontractors on the project. Ms.
Cameron was in direct contact with these contractors, and reported regularly to PPS about the
progress of the work at the school. Respondent was the “go between” on this project.
Contractors were to go directly to Ms. Cameron, rather than PPS, with any questions or
concerns. In addition, after Ms. Cameron learned that the ACM flooring had been removed, she
“shut the site down until it could be determined the extent of contamination.” (Ex. A11, page 2.)

      The term “owner or operator” in ORS 468A.715(1) is inexact. The Oregon Supreme
Court addressed the interpretation of inexact statutory terms in Springfield Education
Association v. School District, 290 Or 217 (1980). The Court reasoned as follows:

        To determine the intended meaning of inexact statutory terms, in cases where
        their applicability may be questionable, courts tend to look to extrinsic
        indicators such as the context of the statutory term, legislative history, a
        cornucopia of rules of construction, and their own intuitive sense of the
        meaning which legislators probably intended to communicate by use of the
        particular word or phrase. In any event, however, the inquiry remains the
        same: what did the legislature intend by using the term.

Springfield at 224. See also, PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (to
determine legislative intent, look first to the text and context of the statute).

        The context of the statutory term “owner or operator” can be determined from the
ordinary meaning of these words. For example, “owner” is defined as “to have or possess as
property” or “to have control over.” The American Heritage College Dictionary 977 (3rd ed
1997. “Operator” is defined as “the owner or manager of a business or an industrial enterprise.”
Id. at 957. By including the term “operator” in the statutory language, the legislature clearly
intended ORS 468A.715(1) to apply to a broader class of people than just property owners.
Because the meaning of the term “owner or operator” can be determined by looking to the text
and context of the statute, further analysis is not necessary. Coast Security Mortgage Corp. v.
Real Estate Agency, 331 Or 348, 355 (2000).

       The legislature has given the Environmental Quality Commission authority to “adopt such
rules and standards as it considers necessary and proper in performing the functions vested by

7
 Respondent is also correct in arguing that the Notice is inaccurate in one respect. In the Notice, the
Department alleges that “Respondent hired Cedar Mill Construction Company LLC. (CMC) as the
general contractor for the renovation project.” (Ex. P1.) This is not accurate. In fact, PPS hired Cedar
Mill, after Respondent solicited bids for the renovation work.


In the Matter of Vickers/Nelson & Associates, Inc., Page 6 of 9
Office of Administrative Hearings Case No. 108347
law in the commission.” ORS 468A.020(1). Within this authority, the Environment Quality
Commission promulgated rules relating to environmental quality issues, including rules relating
to asbestos abatement and the definition of applicable statutory terms. The issue is whether the
Environmental Quality Commission‟s definition of “owner or operator” is consistent with the
statute. I find that it is. As noted above, the Environmental Quality Commission has defined the
term to mean one who “controls or supervises.” Given that the words operator, manager and
supervisor are generally synonymous terms, the rule is valid as it is within the statutory intent.
Springfield, 290 Or at 228.

       Furthermore, an agency‟s interpretation of its rules will be given deference by the courts if
the rule is consistent with applicable statutes, and if the legislature has given the agency broad
authority to establish rules in order to further its mandate. Martin v. ODOT, 122 Or App 271,
274 (1993); Don’t Waste Oregon Com. V. Energy Facility Siting, 320 Or 132, 142 (1994) (an
agency‟s construction of its own rule will be affirmed if the interpretation is plausible and not
inconsistent with the rule itself, the context of the rule, or some other source of law).

      This record establishes, by a preponderance of the evidence, that Respondent was an
“owner or operator” of the school during August 2002, as that term is defined by administrative
rule. Respondent is, therefore, liable for civil penalties because of the unlicensed asbestos
abatement project conducted at the school.

Assessment of Civil Penalty

       The Director of the Department is authorized to assess civil penalties for any violations of
the Department‟s rules or statutes. OAR 340-012-0042. The amount of civil penalties assessed
is determined through use of a matrix and formula contained in OAR 340-012-0045. See OAR
340-012-0042.

       In this case, the Department determined that Respondent was liable for $7,200 in civil
penalties based on the unlicensed asbestos abatement project conducted at the school. This
penalty was determined by calculating the base penalty (BP) and considering other factors, such
as prior significant actions (P), past history (H), the number of occurrences (O), the cause of the
violation (R), Respondent‟s cooperation (C), and the economic benefit that Respondent gained
by noncompliance with the Department‟s rules and statutes. The formula for determining civil
penalties in this case is expressed as follows: “BP + [(0.1 x BP) x (P + H + O + R + C)] + EP.”

       Based on this record, the civil penalty assessment of $7,200 is warranted.




In the Matter of Vickers/Nelson & Associates, Inc., Page 7 of 9
Office of Administrative Hearings Case No. 108347
                                            PROPOSED ORDER

       I propose that the Department issue the following order:

       Respondent is subject to a civil penalty in the amount of $7,200.



                                                                           Andrea H. Sloan
                                                                      Administrative Law Judge
                                                                  Office of Administrative Hearings


ISSUANCE AND MAILING DATE:

                                                   REVIEW

        If you are not satisfied with this decision, you have a right to petition the Environmental
Quality Commission for review. To have the decision reviewed, you must file a "Petition for
Review" within 30 days of the date of service of this Order, as provided in Oregon
Administrative Rule (OAR) 340-011-0132(1) and (2). Service is defined in OAR 340-011-0097,
as the date the Order is mailed to you, not the date you receive it. The Petition for Review must
be filed with:

                                   Environmental Quality Commission
                                   c/o DEQ – Assistant to the Director
                                   811 SW 6th Avenue
                                   Portland OR 97204

Within 30 days of filing the Petition, you must also file exceptions and a brief as provided in
OAR 340-011-0132(3).




In the Matter of Vickers/Nelson & Associates, Inc., Page 8 of 9
Office of Administrative Hearings Case No. 108347
                                   CERTIFICATE OF SERVICE

I certify that on October 9, 2003, I served the attached Proposed Order by mailing certified and/or

first class mail, in a sealed envelope, with first class postage prepaid, a copy thereof addressed as

follows:



GREG VICKERS
VICKERS/NELSON & ASSOCIATES
1420 NW LOVEJOY #416
PORTLAND OR 97209

BY FIRST CLASS MAIL AND CERTIFIED MAIL
BY CERTIFIED MAIL RECEIPT # 7001 1940 0000 1117 5630

DAVID MEYER
ATTORNEY AT LAW
621 SW MORRISON ST STE 1300
PORTLAND OR 97205

BY FIRST CLASS MAIL AND CERTIFIED MAIL
BY CERTIFIED MAIL RECEIPT # 7001 1940 0000 1117 5647

BRYAN SMITH
OREGON DEQ
OFFICE OF COMPLIANCE AND ENFORCEMENT
811 SW 6TH AVE
PORTLAND OR 97204

BY FIRST CLASS MAIL




                                                     _______________________________________
                                                     Ann Redding, Administrative Specialist
                                                     Office of Administrative Hearings
                                                     Transportation Hearings Division




In the Matter of Vickers/Nelson & Associates, Inc., Page 9 of 9
Office of Administrative Hearings Case No. 108347

				
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