2017 ORS 468.961¹
Approval of Attorney General or district attorney before bringing felony charge
  • guidelines for bringing felony charge
  • model guidelines

(1) Except in exigent circumstances, no person shall be charged with a felony under ORS 468.922 (Unlawful disposal, storage or treatment of hazardous waste in the second degree) to 468.956 (Refusal to produce material subpoenaed by commission) without the personal approval of the district attorney of the county or the Attorney General of the State of Oregon.

(2) In order to promote consistency in bringing criminal prosecutions under ORS 468.922 (Unlawful disposal, storage or treatment of hazardous waste in the second degree) to 468.956 (Refusal to produce material subpoenaed by commission), the district attorney of each county shall adopt written guidelines for filing felony criminal charges under ORS 468.922 (Unlawful disposal, storage or treatment of hazardous waste in the second degree) to 468.956 (Refusal to produce material subpoenaed by commission). The written guidelines, at a minimum, shall require the district attorney to consider and apply the following factors in determining whether to file criminal charges:

(a) The complexity and clarity of the statute or regulation violated;

(b) The extent to which the person was or should have been aware of the requirement violated;

(c) The existence and effectiveness of the person’s program to promote compliance with environmental regulations;

(d) The magnitude and probability of the actual or potential harm to humans or to the environment;

(e) The need for public sanctions to protect human health and the environment or to deter others from committing similar violations;

(f) The person’s history of repeated violations of environmental laws after having been given notice of those violations;

(g) The person’s false statements, concealment of misconduct or tampering with monitoring or pollution control equipment;

(h) The person’s cooperation with regulatory authorities, including voluntary disclosure and prompt subsequent efforts to comply with applicable regulations and to remedy harm caused by the violation;

(i) The appropriate regulatory agency’s current and past policy and practice regarding the enforcement of the applicable environmental law; and

(j) The person’s good faith effort to comply with the law to the extent practicable.

(3) In order to promote consistency and uniformity in prosecutorial policies, the Attorney General, in consultation with the Oregon District Attorneys Association, and after appropriate opportunity for public comment, shall adopt model guidelines for prosecution of environmental crimes. The Attorney General’s model guidelines shall provide for consideration and application of the factors described in subsection (2) of this section. A district attorney may fulfill the district attorney’s responsibility under subsection (2) of this section by adopting the Attorney General’s model guidelines.

(4) Prior to or in conjunction with the filing of felony charges under ORS 468.922 (Unlawful disposal, storage or treatment of hazardous waste in the second degree) to 468.956 (Refusal to produce material subpoenaed by commission), the district attorney or the Attorney General shall file a certification with the court that the guidelines described in subsections (2) and (3) of this section have been applied and that, in the opinion of the district attorney or Attorney General, as the case may be, the criminal charges are being filed in accordance with the guidelines. [1993 c.422 §19]

Note: Legislative Counsel has substituted “ORS 468.922 (Unlawful disposal, storage or treatment of hazardous waste in the second degree) to 468.956 (Refusal to produce material subpoenaed by commission)” for the words “this 1993 Act” in sections 19 and 20, chapter 422, Oregon Laws 1993, compiled as 468.961 (Approval of Attorney General or district attorney before bringing felony charge) and 468.963 (Environmental audit privilege). Other ORS references have not been substituted, pursuant to 173.160 (Powers and duties of Legislative Counsel in preparing editions for publication). These sections may be determined by referring to the 1993 Comparative Section Table located in Volume 20 of ORS.

Law Review Cita­tions

24 EL 1673 (1994)

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.