Union County is appealing a civil penalty of almost $50,000 from the Oregon Department of Environmental Quality claiming it violated conditions of its general permit related to the U.S. Forest Service rappel base constructed at the La Grande/Union County Airport.
“The parties primarily differ on the magnitude of the penalty, how DEQ should calculate the penalty, and whether corrective actions were taken,” Katherine Benenati, public affairs specialist for Oregon DEQ, said in an email to The Observer Thursday. She added that “DEQ is meeting with Union County later this month to discuss the potential for a settlement. The Office of Administrative Hearings would schedule and hold a hearing if a settlement wasn’t reached.”
Union County Public Works Director Doug Wright said he is unable to comment during the appeal process.
The DEQ issued a letter to the county May 20. In it, the department states the penalty of $48,683 was issued because the NPDES 1200-C permit requires the county “to implement the erosion and sediment control plan (ESCP) developed for your site and to perform visual monitoring on a regular basis,” and alleges the county failed to meet the requirements. The letter and affixed documents state “construction activities” at the rappel base “resulted in significant amounts of sediment leaving your site and entering the drainage ditch along Pierce Road.” The letter goes on to say that the ditch connects to Gekeler Slough, which is “designated critical habitat for threatened Snake River Basin Steelhead Trout.”
“Critical habitat was considered among other facts when DEQ calculated civil penalties in this case,” Benenati said in the email. “For example, in determining the magnitude of the violation, DEQ must consider the actual and potential for adverse impacts on human health or the environment. The nature and condition of the environment where a respondent operates in is an important consideration. This includes looking at the beneficial uses that adjacent water bodies support or have historically supported and which DEQ is required to protect pursuant to the federal Clean Water Act.”
The DEQ assessed a penalty of $37,862 for the county’s alleged failure to implement and keep the ESCP, and a $10,821 penalty for the alleged failure to perform visual monitoring, both of which, it said are Class I violations of ORS 468B.025(2). The DEQ claims there were at least 28 occurrences of the violation, and called the county “negligent” in its conduct.
Of the bill, more than $30,600 “represents the economic benefit you gained by failing to install erosion and sediment control measures at your site.”
The permit assigned to the county from the DEQ for construction of the rappel base, which started around Aug. 1 of last year, included several requirements to prevent discharge of “significant amounts of sediment to surface waters” and for the county to “design, and update as necessary, erosion and sediment control best management practices (BMPs) for the site and to identify those BMPs….” The controls put in place are to be adequate enough to address such factors as precipitation, stormwater runoff and soil characteristics, among others.
Following a DEQ inspection on March 26, the department alleged the county “did not implement” the required ESCP during the construction period, and that as a result, “a significant amount” of sediment discharged into the ditch along Pierce Road. The department also claims the county did not “stabilize the site’s bare soils,” did not “install or maintain biofilter bag check dams” in the ditch, did not “install a graveled construction entrance or concrete washout area,” and was “using three dirt construction entrances to the site.”
The documents also allege the county had not done its part to minimize pollutants entering water, was disposing of waste and construction debris on the ground near the ditch, and did not properly visually monitor the site to insure the sufficient functionality of BMPs.
“DEQ has not received documentation that demonstrates compliance,” Benenati said in the email. “We received a photo on May 7 that shows the facility put up orange construction fence across one of the three entrances. There are no photos that indicate the other two have been reinforced as required by the permit, and a photo from May 7 shows that the far north entrance is still uncontrolled.”