2017 ORS 468.170¹
Action on application
  • rejection
  • appeal
  • issuance of certificate
  • certification

(1) The Environmental Quality Commission shall act on an application for certification before the 120th day after the filing of the application under ORS 468.165 (Application for certification of pollution control facilities). The action of the commission shall include certification of the actual cost of the facility and the portion of the actual cost properly allocable to the prevention, control or reduction of air, water or noise pollution or solid or hazardous waste or to recycling or appropriately disposing of used oil. The actual cost or portion of the actual cost certified may not exceed the taxpayer’s own cash investment in the facility or portion of the facility. Each certificate shall bear a separate serial number for each such facility.

(2) If the commission rejects an application for certification, or certifies a lesser actual cost of the facility or a lesser portion of the actual cost properly allocable to the prevention, control or reduction of air, water or noise pollution or solid or hazardous waste or to recycling or appropriately disposing of used oil than was claimed in the application for certification, the commission shall cause written notice of its action, and a concise statement of the findings and reasons therefor, to be sent by registered or certified mail to the applicant before the 120th day after the filing of the application.

(3) If the application is rejected for any reason, including the information furnished by the applicant as to the cost of the facility, or if the applicant is dissatisfied with the certification of actual cost or portion of the actual cost properly allocable to prevention, control or reduction of air, water or noise pollution or solid or hazardous waste or to recycling or appropriately disposing of used oil, the applicant may appeal from the rejection as provided in ORS 468.110 (Appeal). The rejection or the certification is final and conclusive on all parties unless the applicant takes an appeal therefrom as provided in ORS 468.110 (Appeal) before the 30th day after notice was mailed by the commission.

(4)(a) The commission shall certify a pollution control, solid waste, hazardous waste or used oil facility or portion thereof, for which an application has been made under ORS 468.165 (Application for certification of pollution control facilities), if the commission finds that the facility:

(A) Was erected, constructed or installed in accordance with the requirements of ORS 468.165 (Application for certification of pollution control facilities) (1);

(B) Is designed for, and is being operated or will operate in accordance with the requirements of ORS 468.155 (Definitions for ORS 468.155 to 468.190); and

(C) Is necessary to satisfy the intents and purposes of ORS 454.010 (Definitions for ORS 454.010 to 454.040) to 454.040 (Determination of costs payable by users), 454.205 (“Municipality” defined) to 454.255 (Plans and cost estimates), 454.505 (Definitions for ORS 454.505 to 454.535) to 454.535 (Sewage Treatment Works Construction Account), 454.605 (Definitions for ORS 454.605 to 454.755) to 454.755 (Fees for certain reports on sewage disposal), ORS chapters 459, 459A, 466 and 467 and ORS chapters 468, 468A and 468B and rules thereunder.

(b) No determination of the proportion of the actual cost of the facility to be certified shall be made until receipt of the application.

(c) If one or more facilities constitute an operational unit, the commission may certify such facilities under one certificate.

(d) A certificate under this section is effective for purposes of tax relief in accordance with ORS 307.405 (Pollution control facilities) and 315.304 (Pollution control facilities) if, on or before December 31, 2007, erection, construction or installation of the facility is completed, the facility is placed in service and the application for certification is filed with the commission under ORS 468.165 (Application for certification of pollution control facilities).

(5) A person receiving a certificate under this section may take tax relief only under ORS 315.304 (Pollution control facilities), depending upon the tax status of the person’s trade or business except that:

(a) A corporation organized under ORS chapter 65 or any subsequent transferee of the corporation shall take tax relief only under ORS 307.405 (Pollution control facilities); and

(b)(A) A corporation organized under ORS chapter 62 or any predecessor to ORS chapter 62 relating to the incorporation of cooperative associations or the subsequent transferee of the corporation may make an irrevocable election to take the tax relief under either ORS 315.304 (Pollution control facilities) or 307.405 (Pollution control facilities). The corporation shall make the election at the time of applying for the certificate, except that a corporation receiving a certificate prior to December 31, 1995, may make the election at any time on or before December 31, 1995. If a corporation elects on or before December 31, 1995, to take the tax relief under ORS 315.304 (Pollution control facilities), any income taxes, penalties or interest otherwise payable by the corporation for improperly taking the tax relief under ORS 315.304 (Pollution control facilities) in a taxable year prior to making the election shall be waived.

(B) In the case of a corporation making the election under subparagraph (A) of this paragraph, the election applies to:

(i) All existing or future facilities that are certified under this section, if the corporation claimed a credit under ORS 315.304 (Pollution control facilities) for a tax year beginning prior to December 31, 1995; or

(ii) All future facilities that are certified under this section, if the corporation did not claim a credit under ORS 315.304 (Pollution control facilities) for a tax year beginning prior to December 31, 1995.

(6) If the person receiving the certificate is a partnership, each partner shall be entitled to take tax credit relief as provided in ORS 315.304 (Pollution control facilities), based on that partner’s pro rata share of the certified cost of the facility.

(7) Certification under this section of a pollution control facility qualifying under ORS 468.165 (Application for certification of pollution control facilities) (1) shall be granted for a period of 10 consecutive years which 10-year period shall begin with the tax year of the person in which the facility is certified under this section, except that if ad valorem tax relief is utilized by a corporation organized under ORS chapter 62 or 65 the facility shall be exempt from ad valorem taxation for a period of 20 consecutive years.

(8) Portions of a facility qualifying under ORS 468.165 (Application for certification of pollution control facilities) (1)(c) may be certified separately under this section if ownership of the portions is in more than one person. Certification of such portions of a facility shall include certification of the actual cost of the portion of the facility to the person receiving the certification. The actual cost certified for all portions of a facility separately certified under this subsection may not exceed the total cost of the facility that would have been certified under one certificate. The provisions of ORS 315.304 (Pollution control facilities) (8) apply to any sale, exchange or other disposition of a certified portion of a facility.

(9) A certificate issued under this section shall state the applicable percentage of the certified cost of the facility, as determined under ORS 468.173 (Applicable percentage of certified cost of facility eligible for tax credit).

(10) If the construction or installation of a facility is commenced after December 31, 2005, the facility may be certified only if the facility or applicant is described in ORS 468.173 (Applicable percentage of certified cost of facility eligible for tax credit) (3). A facility described in ORS 468.173 (Applicable percentage of certified cost of facility eligible for tax credit) (2) for which construction or installation is commenced after December 31, 2005, may not be certified under this section. [Formerly 449.635; 1974 c.37 §3; 1975 c.496 §4; 1977 c.795 §4; 1979 c.531 §6; 1979 c.802 §4; 1981 c.408 §3; 1983 c.637 §3; 1987 c.596 §5; 1989 c.802 §6; 1991 c.877 §37; 1995 c.746 §3; 1999 c.826 §3; 2001 c.928 §2]

See also annota­tions under ORS 449.635 in permanent edi­tion.

Notes of Decisions

There is no require­ment in this sec­tion that EQC must provide peti­tioner a hearing before rejecting applica­tion for tax credit certificate; only require­ment is that, if applica­tion is rejected, EQC must provide written notice of rejec­tion along with concise state­ment of findings and reasons for rejec­tion. Linnton Plywood Assoc. v. DEQ, 68 Or App 412, 681 P2d 1180 (1984), Sup Ct review denied

Elec­tion under subsec­tion (5) of this sec­tion involves two rather than three choices, in that elec­tion is between “tax credit relief” and “ad valorem tax relief”; tax credit relief may be under “[former] ORS 316.097 or [former ORS] 317.072,” but if subchapter S status is terminated, tax credit relief is under [former] ORS 317.072 rather than [former] ORS 316.097, though elec­tion for tax credit relief still stands. Vickers v. Dept. of Rev., 11 OTR 44 (1988), aff’d 307 Or 572, 771 P2d 268 (1989)

Crea­tion of 60-day ap­peal period provided for in ORS 468.110 (Appeal) did not impliedly repeal 30-day time limit for ap­pealing denial of pollu­tion control facility certificate. Tidewa­ter Barge Lines, Inc. v. Environ­mental Quality Commission, 159 Or App 296, 974 P2d 807 (1999)

Atty. Gen. Opinions

Tax credit for conversion of motor vehicle to liquefied petroleum gas fuel, (1980) Vol 40, p 293

Chapter 468

See also annota­tions under ORS chapter 449 in permanent edi­tion.

Notes of Decisions

It was proper for Depart­ment of Environ­mental Quality to consider statutory pro­vi­sions of this chapter while acting on solid waste disposal permit applica­tion under ORS 459.205 (Permit required) to 459.265 (Hearings). Land Reclama­tion, Inc. v. DEQ, 55 Or App 996, 640 P2d 699 (1982), Sup Ct review denied

Atty. Gen. Opinions

Authority of depart­ment to review engineering data and design of wigwam waste burner or of air pollu­tion control equip­ment, or to prohibit construc­tion or installa­tion, (1971) Vol 35, p 917; state antipollu­tion regula­tions applicable to mining activities in wilderness areas in na­tional parks, (1972) Vol 35, p 1042; power of depart­ment to regulate mining activities or recovery of oil and geothermal resources, (1972) Vol 35, p 1100; authority of Environ­mental Quality Commission and Depart­ment of Environ­mental Quality to regulate disposi­tion of food processing byproducts to prevent air or wa­ter pollu­tion, (1979) Vol 39, p 770

Law Review Cita­tions

4 EL 339 (1974)

1 Legislative Counsel Committee, CHAPTER 468—Environmental Quality Generally, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors468.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 468, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano468.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.