2017 ORS 468.959¹
Upset or bypass as affirmative defense

(1) It is an affirmative defense to any offense under ORS 468.922 (Unlawful disposal, storage or treatment of hazardous waste in the second degree) to 468.946 (Unlawful water pollution in the first degree) that the alleged violation was the result of an upset or bypass.

(2) For purposes of this section:

(a) “Bypass” means the temporary discharge of waste or an air contaminant in violation of ORS chapter 465, 466, 468, 468A or 468B or any rule adopted or order or permit issued thereunder, under circumstances in which the defendant reasonably believed that the discharge was necessary to prevent loss of life, personal injury or severe property damage, or to minimize environmental harm.

(b) “Upset” includes an exceptional and unexpected occurrence in which there is unintentional and temporary violation of the requirements of ORS 824.050 (Inspection of, recommendations on and orders concerning railroad equipment and facilities) to 824.110 (Administrative authority of department) or ORS chapter 465, 466, 468, 468A, 468B or 825 or of any rule adopted or permit or order issued under ORS 824.050 (Inspection of, recommendations on and orders concerning railroad equipment and facilities) to 824.110 (Administrative authority of department) or ORS chapter 465, 466, 468, 468A, 468B, or 825 because of factors beyond the reasonable control of the regulated person or entity. “Upset” does not include a violation caused by:

(A) Operational error;

(B) Improperly designed facilities;

(C) Lack of preventive maintenance; or

(D) Careless or improper operation.

(3) To establish the affirmative defense of upset or bypass, the defendant must prove the occurrence of an upset or bypass and that the defendant:

(a) Reported the upset or bypass to the Department of Environmental Quality or other appropriate agency within 24 hours or as required by statute, rule, permit or order, whichever is sooner, and, if the original notice was oral, delivered written notice to the Department of Environmental Quality or other agency with regulatory jurisdiction within four calendar days;

(b) Submitted complete documentation of the upset or bypass to the Department of Environmental Quality or other agency with regulatory jurisdiction as required by statute, rule, order or permit; and

(c) Took appropriate corrective action, including action to minimize damage, as soon as reasonably possible.

(4) It is an affirmative defense to an offense under ORS 468.922 (Unlawful disposal, storage or treatment of hazardous waste in the second degree) to 468.946 (Unlawful water pollution in the first degree) that the defendant:

(a) Did not cause or create the condition or occurrence that constitutes the offense;

(b) Reported the condition or occurrence to the Department of Environmental Quality or other agency with regulatory jurisdiction as soon as practicable after the defendant discovered it; and

(c) Took reasonable steps to correct the violation. [1993 c.422 §17]

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.