Oil Re-Refining Co. v. Environmental Quality Comm. , 361 Or. 1 ( 2017 )

No. 6 February 9, 2017 1
IN THE SUPREME COURT OF THE
STATE OF OREGON
OIL RE-REFINING COMPANY,
Petitioner on Review,
v.
ENVIRONMENTAL QUALITY COMMISSION,
Department of Environmental Quality
for the State of Oregon,
Respondent on Review.
(OAH 1001690, CA A149365, SC S063590)
On judicial review from the Court of Appeals*
Argued and submitted May 9, 2016.
Aaron J. Bell, Bell Law Firm, P.C., Wilsonville, argued
the cause and filed the briefs for the petitioner on review.
Dustin Buehler, Assistant Attorney General, Salem,
argued the cause and filed the brief for the respondent on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices, and Ortega, Judge
of the Court of Appeals, Justice pro tempore.**
BALMER, C. J.
The decision of the Court of Appeals and the final order of
the Environmental Quality Commission are affirmed.
______________
**  Judicial review of final order of the Environmental Quality Commission.
273 Or App 502, 361 P3d 46 (2015).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
2 Oil Re-Refining Co. v. Environmental Quality Comm.
Case Summary: The Department of Environmental Quality assessed civil
penalties against a company for violations of 40 CFR section 263.20(a)(1), as
adopted by OAR 340-100-0002(1), which prohibits a transporter from accepting
hazardous waste without a proper manifest form, and ORS 466.095(1)(c), which
prohibits operating a hazardous waste treatment site without a proper permit.
The company argued in defense that it reasonably relied on assurances by the
generator of the waste that the material being transported and treated was not a
hazardous waste. The Environmental Quality Commission interpreted the rele-
vant provisions as imposing a strict liability standard and rejected the company’s
reasonable-reliance defense. The Court of Appeals affirmed the strict liability
interpretations. Held: (1) when an agency promulgates a rule that incorporates a
federal rule by reference, the agency’s incorporation is equivalent to republishing
the referenced federal rule in the agency’s own rule; (2) 40 CFR section 263.20(a)
(1), as adopted by OAR 340-100-0002(1), imposes a strict liability standard; and
(3) ORS 466.095(1)(c) imposes a strict liability standard.
The decision of the Court of Appeals and the final order of the Environmental
Quality Commission are affirmed.
Cite as 361 Or 1 (2017) 3
BALMER, C. J.
This case requires us to determine the standard
of liability for violations of two provisions of the hazard-
ous waste laws: 40 CFR section 263.20(a)(1), as adopted by
OAR 340-100-0002(1), which prohibits a transporter from
accepting hazardous waste without a proper manifest form,
and ORS 466.095(1)(c), which prohibits operating a haz-
ardous waste treatment site without a proper permit. The
Department of Environmental Quality (the department)
assessed civil penalties against petitioner, Oil Re-Refining
Company (ORRCO), after it determined that ORRCO had
accepted hazardous waste without a proper manifest form
and treated hazardous waste without a proper permit.
ORRCO conceded the factual basis for those allegations but
asserted a reasonable-reliance defense—namely, that it rea-
sonably relied on assurances by the generator of the waste
that the material ORRCO transported and treated was
not a hazardous waste, and, therefore, did not require the
manifest and permit at issue. The Environmental Quality
Commission (the commission) refused to consider ORRCO’s
defense, because it interpreted the relevant provisions as
imposing a strict liability standard. The Court of Appeals
agreed with the commission’s interpretations and affirmed
its final order finding various violations and imposing civil
penalties.1
On review before this court, ORRCO argues that
the commission should have considered its reasonable-
reliance defense and that the commission had erred in
interpreting the relevant provisions as imposing a standard
of strict liability. We reject ORRCO’s argument because it
ignores statutory and regulatory context indicating that a
transporter’s or operator’s level of culpability is immaterial
1
The Court of Appeals applied the Oregon regulations in effect at the time of
the department’s enforcement action in 2009. Oil Re-Refining Co. v. Environmental
Quality Comm., 273 Or App 502, 504 n 1, 361 P3d 46 (2015). At that time, the
commission had adopted certain federal regulations “promulgated through
July 1, 2007.” OAR 340-100-0002(1) (2010) (adopting 40 CFR parts 260 to 268
in their entirety, among other provisions). The parties do not ask this court to
consider the regulations in effect at the time of the alleged violations. Therefore,
consistent with the Court of Appeals decision, our references to state regulations
are to those in effect in 2009, and our references to federal regulations are to
those as enacted through July 1, 2007.
4 Oil Re-Refining Co. v. Environmental Quality Comm.
to establishing a violation of the relevant provisions. We
therefore affirm the commission’s final order.
I. BACKGROUND
The parties do not dispute the facts found by the com-
mission. In or around January 2004, Absorbent Technologies,
Inc. (ATI) wanted to discard waste that resulted from its
process for making a starch-based soil amendment. In that
process, ATI used methanol to extract water from a starch
mixture. That resulted in a water/methanol product, which
ATI reused to remove water from subsequent loads of the
starch mixture. Each additional use increased the concen-
tration of water in the water/methanol product. Eventually,
ATI determined that the concentration of water became too
high to effectively remove water from loads of the starch
mixture. At that point, ATI wanted to discard the resulting
water/methanol waste and asked ORRCO to treat it.
ORRCO operated a waste treatment and disposal
facility in Portland, subject to a facility management plan
approved by the department. Under that plan, ORRCO
treated and disposed of certain wastes that fell outside the
legal definition of hazardous waste. ORRCO did not have
the permit required to operate a facility that treats, stores,
or disposes of hazardous waste. See ORS 466.095(1) (requir-
ing a permit to treat, store, or dispose of hazardous waste).
In general, ORRCO would not accept waste ship-
ments to its facility until after it ran a number of tests
used to detect potential hazardous wastes, including tests
to detect the halogen level, pH level, and ignitability of the
material. Although it is unclear whether ORRCO performed
those tests in this case, ORRCO determined that it could
treat ATI’s water/methanol waste after sending personnel
to tour ATI’s facility, receiving an explanation of ATI’s man-
ufacturing process, and reviewing paperwork completed
by ATI, which described the halogen levels, pH levels, and
ignitability of ATI’s shipments.
From January to March 2004, ATI delivered seven
shipments of its water/methanol waste to ORRCO’s facil-
ity. The accompanying paperwork—in addition to describ-
ing the waste as a mixture of water and methanol—showed
Cite as 361 Or 1 (2017) 5
potentially hazardous halogen levels and ignitability. And
the paperwork for one shipment showed a potentially haz-
ardous pH level. Further, ATI noted in the paperwork that
the water/methanol waste had not been mixed with any other
solvents or hazardous wastes, although the paperwork does
not state whether the waste itself is a solvent and whether
it is hazardous. ORRCO accepted six of the seven deliveries,
rejecting only the delivery that showed a high pH level. For
each of the six deliveries that it accepted, ORRCO treated
the water/methanol waste by burning it for fuel recovery.
After receiving those six deliveries from ATI,
ORRCO began picking up the water/methanol waste from
ATI’s facility and transporting it back to its own facility for
treatment. From July to September 2004, ORRCO trans-
ported and treated three shipments of ATI’s water/methanol
waste. Although ATI again provided ORRCO with paper-
work describing the characteristics of the material being
shipped, ATI did not provide ORRCO with the manifest
form required to transport hazardous waste. See 40 CFR
§ 263.20(a)(1), as adopted by OAR 340-100-0002(1) (impos-
ing the manifest requirement).
In 2005, the United States Environmental Protec-
tion Agency (EPA) opened an investigation into ATI. That
EPA investigation later led the department to investigate
ORRCO. In September 2009, after completing its investi-
gation, the department issued a Notice of Civil Penalty
Assessment and Order to ORRCO, alleging three violations
of the manifest requirement in 40 CFR section 263.20(a)(1),
as adopted by OAR 340-100-0002(1), and nine violations
of the permit requirement in ORS 466.095(1)(c). ORRCO
requested an administrative hearing, which was held in
December 2010 before an administrative law judge (ALJ).
At the hearing, ORRCO did not contest the basic
facts that it transported and treated the water/methanol
waste without a manifest or permit. ORRCO, however, pre-
sented numerous legal arguments, including arguing that
the water/methanol waste was not a hazardous waste and
therefore did not trigger the manifest and permit require-
ments. Further, ORRCO claimed that, even if the waste
was hazardous and the manifest and permit requirements
6 Oil Re-Refining Co. v. Environmental Quality Comm.
applied, it did not violate either requirement because it
reasonably relied on the information provided by ATI—
information that, according to ORRCO, suggested that the
water/methanol waste was not hazardous.
The ALJ issued a proposed order, which became the
commission’s final order. As an initial matter, the commis-
sion determined that the water/methanol waste was a haz-
ardous waste, which subjected ORRCO to the manifest and
permit requirements. Although the commission concluded
that ORRCO relied on information that ATI had provided,
the commission never reached the question of whether
that reliance was reasonable—that is, whether the infor-
mation ATI provided actually suggested that the water/
methanol waste was not hazardous and, if so, whether
ORRCO had reason to believe that ATI’s information was
incorrect. The commission never reached that question,
because it interpreted both the manifest requirement and
the permit requirement as imposing strict liability stan-
dards, thus making ORRCO’s reliance irrelevant to liability.
The commission reached that determination because nei-
ther requirement specified a particular mental state. As a
result, the commission held ORRCO strictly liable for three
violations of the manifest requirement in 40 CFR section
263.20(a)(1), as adopted by OAR 340-100-0002(1), and nine
violations of the permit requirement in ORS 466.095(1)(c).
For those violations, the commission assessed against
ORRCO a civil penalty of $118,800.
ORRCO sought review in the Court of Appeals.
Before that court, ORRCO did not dispute the commission’s
findings of fact nor did it contend that the water/methanol
waste it transported and treated was not a hazardous
waste. Instead, ORRCO argued only that the commission
erred by interpreting the manifest and permit requirements
to impose strict liability. The Court of Appeals affirmed the
commission’s order and its interpretations. Oil Re-Refining
Co. v. Environmental Quality Comm., 273 Or App 502, 504,
361 P3d 46 (2015).
ORRCO petitioned this court for review, which we
granted. On review, ORRCO reasserts the argument it pre-
sented to the Court of Appeals—namely, that the manifest
Cite as 361 Or 1 (2017) 7
and permit requirements should not impose liability on par-
ties who reasonably rely on assurances from the generator
that the waste was not hazardous.2
II. ANALYSIS
A.  Law Governing Hazardous Waste
We begin by placing the manifest and permit require-
ments within the broader legal framework that governs haz-
ardous waste. Hazardous waste is subject to overlapping
state and federal authority. At the federal level, the EPA
has promulgated rules implementing the federal Resource
Conservation and Recovery Act (RCRA), which amended the
Solid Waste Disposal Act, 42 USC sections 6901 to 6992K.
Those rules establish criteria for identifying waste as “haz-
ardous waste.” If waste is hazardous, it is subject to much
stricter requirements than those for nonhazardous waste.
See City of Chicago v. Envtl. Def. Fund, 511 US 328, 331-32,
114 S Ct 1588, 128 L Ed 2d 302 (1994) (so stating). As it
relates to hazardous waste, the EPA has promulgated cradle-
to-grave regulations governing handlers of hazardous waste
at each stage in its life cycle: waste generators, waste trans-
porters, and owners and operators of waste “treatment, stor-
age, or disposal facilities,” known as TSD facilities.
At the state level, hazardous waste is governed
by state-run hazardous waste programs authorized by the
EPA. 42 USC § 6926(b). The EPA has authorized Oregon
to administer its own hazardous waste program, which it
does through the commission and the department. ORS
466.086. Under Oregon’s program, the department admin-
isters, enforces, and implements Oregon’s hazardous waste
program, and the commission adopts rules and issues orders
relating to the hazardous waste program. ORS 466.015;
ORS 466.020.
Federal law requires Oregon’s program to be at
least as stringent as the EPA’s RCRA hazardous waste pro-
gram. 42 USC §§ 6926(b), 6929; see generally 40 CFR part
271 (imposing standards for state programs). To comply with
2
Before this court, as before the Court of Appeals, ORRCO does not dispute
the commission’s conclusion that ATI’s water/methanol waste was a hazardous
waste.
8 Oil Re-Refining Co. v. Environmental Quality Comm.
that requirement, the commission has adopted by reference
broad categories of EPA regulations “governing the manage-
ment of hazardous waste, including its generation, transpor-
tation, treatment, storage, recycling and disposal[.]” OAR
340-100-0002(1). Consequently, the commission and the
department generally apply the EPA’s RCRA rules unless
Oregon law, by statute or rule, modifies a rule or specifies
some more stringent standard. Id.; see, e.g., OAR 340-100-
0002(2) (excluding specific EPA rules not at issue in this
case). The substance of Oregon’s program, therefore, follows
the federal cradle-to-grave standards that apply to gener-
ators, transporters, and TSD facilities. See ORS 466.068 -
466.225 (statutes governing hazardous waste); see also ORS
466.086(2) (authorizing the commission to adopt, amend,
or repeal rules necessary to obtain and implement a state
RCRA program).
The manifest and permit requirements at issue in
this case are components in the cradle-to-grave approach
required by RCRA. That approach begins with regulations
requiring waste generators to determine whether the waste
is a solid waste subject to RCRA. If it is, then the genera-
tor must determine whether the solid waste is a hazardous
waste. 40 CFR § 262.11. Some solid wastes are hazardous
because they exhibit characteristics defined as hazardous
by the EPA. Other solid wastes are hazardous because the
EPA has specifically listed them as hazardous, regardless of
the characteristics that they exhibit.
If the generator intends to treat, store, or dispose of
its hazardous waste on site, then the generator must obtain
a permit to operate a TSD facility. See 42 USC § 6925(a)
(requiring the EPA to promulgate regulations requiring
permits); ORS 466.095(1)(c) (requiring permits for TSD
facilities). Obtaining a permit subjects a facility to “the
very strict, complex and expensive regulatory requirements
of RCRA and parallel state laws.” Michael B. Gerrard ed.,
4A-29 Environmental Law Practice Guide § 29.05 (2015).
Regulations govern the manner in which TSD facilities
engage in specific operations and impose recordkeeping
and emergency planning requirements. Id. A generator can
Cite as 361 Or 1 (2017) 9
avoid those requirements by shipping its hazardous waste to
a TSD facility that already has the appropriate permits.
Shipping hazardous waste raises a host of regula-
tory requirements intended to track the waste and to pro-
tect human health and the environment. Regulations aim
to protect human health and the environment by ensuring
that the waste is transported safely from the generator to
the TSD facility. As a result, if a generator intends to ship
hazardous waste to an off-site TSD facility, then the gen-
erator is subject to a number of pretransport requirements
that address the packaging, labeling, marking, and plac-
arding of the waste. 40 CFR §§ 262.30 - 262.33. Further, a
transporter must report discharges of hazardous waste that
occur during the shipment. 40 CFR § 263.30.3Regulations also require tracking hazardous waste
through a manifest system. The generator is responsi-
ble for preparing a manifest form by characterizing the
waste’s quantity, origin, and composition and identifying
the intended route of the waste through registered trans-
porters to the TSD facility that will treat, store, or dispose
of it. 40 CFR § 262.20(a)(1). The generator provides copies
of the manifest to the transporter. The transporter is pro-
hibited from accepting hazardous waste without a mani-
fest. 40 CFR § 263.20(a)(1). Signed copies of the manifest
are created each time hazardous waste is transferred from
one handler to another. After accepting hazardous waste,
the transporter is generally required to deliver the waste
to the next designated transporter or to the TSD facility
listed on the manifest. 40 CFR § 263.21(a). TSD facilities
receiving shipments of hazardous waste must compare the
shipment to the descriptions contained on the manifest and
provide proof of receipt to both the transporter and the gen-
erator. The manifest system “provides accountability during
3
Those pretransport and reporting requirements were first established by
the United States Department of Transportation (USDOT) in rules governing
the transportation of hazardous materials, which the EPA later adopted by refer-
ence through its RCRA rules. See 40 CFR § 262.30 (adopting USDOT regulations
related to packaging); 40 CFR § 262.31 (adopting USDOT regulations related to
labeling packages); 40 CFR § 262.32 (adopting USDOT regulations related to
marking packages); 40 CFR § 262.33 (adopting USDOT regulations related to
placarding); 40 CFR § 263.30 (adopting USDOT regulations related to reporting
discharges).
10 Oil Re-Refining Co. v. Environmental Quality Comm.
each step of the movement of hazardous waste.” 45 Fed
Reg 12738, 12740 (Feb 26, 1980); see also Gerrard, 4A-29
Environmental Law Practice Guide § 29.03 (“[T]he manifest
system is critical to the functioning of the federal hazardous
waste regulatory scheme.”).
In this case, the commission concluded that ORRCO
violated the manifest requirement imposed on transporters,
40 CFR section 263.20(a)(1), as adopted by OAR 340-100-
0002(1), and the permit requirement imposed on TSD facil-
ities, ORS 466.095(1)(c). The commission interpreted both
provisions as imposing strict liability standards. ORRCO
disagrees with those interpretations. The dispute between
the parties thus raises issues of regulatory and statutory
construction. ORRCO, however, does not present a separate
argument for each provision. Instead, ORRCO directs its
argument almost exclusively at the manifest requirement.
We therefore begin with the manifest requirement.
B.  Manifest Requirement
1.  Text and interpretative framework
Before turning to the parties’ arguments, we first set
out the applicable interpretative framework. To the extent
that we apply different interpretative frameworks to state
regulations and federal regulations, we must determine
whether we are interpreting a state or a federal regulation.4
Although the substance of the manifest requirement is con-
tained in a federal regulation promulgated by the EPA, 40
CFR section 263.20(a)(1), the manifest requirement is part
of Oregon’s hazardous waste management program because
the commission incorporated that requirement through
its own regulation, OAR 340-100-0002(1). That regulation
adopts by reference
“the rules and regulations governing the management of
hazardous waste, including its * * * transportation, * * *
4
Compare State v. Hogevoll, 348 Or 104, 109-10, 228 P3d 569 (2010) (describ-
ing standards for interpreting state regulations) with Hagan v. Gemstate
Manufacturing, Inc., 328 Or 535, 545, 982 P2d 1108 (1999) (describing stan-
dards for interpreting federal regulations); see also Friends of Columbia Gorge
v. Columbia River (S055722), 346 Or 366, 410, 213 P3d 1164 (2009) (comparing
federal and state standards of deference owed to an agency’s interpretation of its
own rule).
Cite as 361 Or 1 (2017) 11
prescribed by the United States Environmental Protection
Agency in Title 40 Code of Federal Regulations, Parts 260
to 266[.]”
Id.This court has previously noted that “[t]he legisla-
ture’s incorporation by reference is equivalent to its having
republished the specified federal provisions in the state stat-
utes.” Okorn v. Dept. of Rev., 312 Or 152, 155, 818 P2d 928
(1991). The same reasoning applies to administrative rules:
when an agency promulgates a rule that incorporates a fed-
eral rule by reference, the agency’s incorporation is equiva-
lent to republishing the referenced federal rule in the agen-
cy’s own rule. Thus, when the commission determined that
ORRCO violated the standard of conduct set forth in 40 CFR
section 263.20(a)(1), the commission was applying state law.
See Okorn, 312 Or at 155 (explaining that the Department
of Revenue “was making a determination of state law” when
it enforced a state income tax law that incorporated federal
standards for defining taxable income).
We therefore apply our framework for interpreting
state regulations. In applying that framework, however,
we encounter another question: whether the commission’s
interpretation of the manifest requirement is entitled to def-
erence. Within our framework for interpreting state regula-
tions, this court ordinarily defers to an agency’s interpreta-
tion of its own regulation if that interpretation is a plausible
one and otherwise consistent with the law. AT&T Corp. v.
Dept. of Rev., 357 Or 691, 702, 358 P3d 973 (2015). Although
the commission was technically interpreting its own regu-
lation when it applied the standard of conduct set forth in
40 CFR section 263.20(a)(1), that does not necessarily mean
that the commission’s interpretation is entitled to deference.
The commission asserts, in a footnote and without
argument, that its interpretation is entitled to deference
because it promulgated the state rule (OAR 340-100-0002(1))
that incorporates the federal rule (40 CFR section 263.20(a)(1))
containing the manifest requirement’s standard of conduct.
This court has not previously addressed the question of
whether we should defer to an agency’s interpretation of a fed-
eral rule that the agency has incorporated into its own rule
12 Oil Re-Refining Co. v. Environmental Quality Comm.
by reference. See Brand Energy Services, LLC v. OR-OSHA,
261 Or App 210, 215 n 5, 323 P3d 356 (2014) (noting the lack
of Oregon case law). And neither party briefed that ques-
tion. For example, the commission does not argue that it had
the statutory authority to do anything other than simply
incorporate the standards of conduct contained in the EPA’s
RCRA regulations, including the manifest requirement in
40 CFR section 263.20(a)(1).5 In other words, it is at least
potentially relevant to know whether the commission was
required by law to incorporate 40 CFR section 263.20(a)(1)
or whether it chose to incorporate that provision based on its
expertise in hazardous waste management and its legisla-
tively delegated policy-making authority.6
We can resolve the parties’ dispute in this case,
however, without resolving the question of whether to defer
to the commission’s interpretation of the manifest require-
ment. On the issue disputed in this case—the propriety
of a strict liability standard—we conclude, for the reasons
explained below, that the manifest requirement permits
5
It is not clear what statutory authority the commission relied on when it
adopted the federal manifest requirement imposed on transporters. None of the
statutes cited in OAR 340-100-0002(1) clearly provide such authority. Among
the cited statutes—ORS 465.009, ORS 465.505, or ORS 466.020—only two pro-
visions address transportation. Those provisions authorize the commission to
adopt rules “relating to the transportation of hazardous waste by air or water,”
ORS 466.020(5), and to adopt rules relating to the “transportation * * * of fuels
containing or derived from hazardous waste,” ORS 466.020(6). Authority could
be found in other statutes. For example, ORS 466.086(2) authorizes the commis-
sion to adopt rules “necessary” to gain the EPA’s authorization of a state-run
RCRA program, although the extent to which the commission could rely on that
statute for any particular rule would require considering the scope of authority
provided by the statute.
6
Other courts have addressed similar issues. For example, in Gonzales v.
Oregon, 546 US 243, 126 S Ct 904, 163 L Ed 2d 748 (2006), the United States
Supreme Court denied deference to an agency’s interpretation of its own “parrot-
ing regulation,” which is a regulation that copies or paraphrases the statutory
standard that the agency was implementing. Id. at 257. According to that court,
“[a]n agency does not acquire special authority to interpret its own words when,
instead of using its expertise and experience to formulate a regulation, it has
elected merely to paraphrase the statutory language.” Id. On the other hand,
federal courts have deferred to an agency’s interpretation of its own regulation
that parrots wording developed by another agency or entity, reasoning that “the
doctrine of deference is based primarily on the agency’s statutory role as the
sponsor of the regulation, not necessarily on its drafting expertise.” Paralyzed
Veterans of Am. v. D.C. Arena L.P., 117 F3d 579, 585 (DC Cir 1997) abrogated on
other grounds by Perez v. Mortgage Bankers Ass’n, ___ US ___, 135 S Ct 1199, 191
L Ed 2d 186 (2015).
Cite as 361 Or 1 (2017) 13
only one plausible interpretation, which is the interpretation
adopted by the commission. That conclusion moots the ques-
tion of deference, because we would affirm the commission’s
interpretation regardless of whether we gave deference to
that interpretation.
We determine whether an agency regulation is sus-
ceptible to more than one plausible interpretation of the issue
in dispute by applying “the same analytical framework that
applies to the construction of statutes.” State v. Hogevoll,
348 Or 104, 109, 228 P3d 569 (2010). Therefore, as it relates
to the propriety of a strict liability standard, we attempt to
identify the meaning of the text in context and to give effect
to the intent of the enacting body—in this case, the commis-
sion. Wetherell v. Douglas County, 342 Or 666, 678, 160 P3d
614 (2007). Although we look at the intent of the commission,
that does not preclude considering the meaning that the
EPA intended to give, or has given, to the manifest require-
ment contained in 40 CFR section 263.20(a)(1). Rather, the
rule-making history and subsequent interpretation of the
EPA’s manifest requirement is relevant to the extent that it
informs the commission’s intent when it adopted the man-
ifest requirement. See ORS 466.086(2) (granting the com-
mission authority to adopt rules necessary for Oregon to
gain the EPA’s authorization of a state-run RCRA program);
see also State v. Cooper, 319 Or 162, 168, 874 P2d 822 (1994)
(resolving a dispute over the meaning of an Oregon rule of
evidence by considering congressional intent of federal rule
of evidence that served as model).
With that framework in mind, we turn to the text of
the manifest requirement. That provision states:
“Manifest requirement. A transporter may not accept haz-
ardous waste from a generator unless the transporter is
also provided with a manifest signed in accordance with
the requirement of § 262.23.”
40 CFR § 263.20(a)(1), as adopted OAR 340-100-0002(1).
As noted, the commission concluded that the mani-
fest requirement imposed a strict liability standard, because
the rule does not specify that a particular mental state is
required to establish a violation. ORRCO challenges that
14 Oil Re-Refining Co. v. Environmental Quality Comm.
interpretation of the manifest requirement and argues that
the commission should have considered its defense claim-
ing that it reasonably relied on information provided to it by
ATI, which, according to ORRCO, suggested that the mani-
fest requirement did not apply. In asserting that argument,
ORRCO relies on context created by two sources: 40 CFR
section 262.11, which requires a waste generator to deter-
mine whether waste is hazardous, and statutes and rules
enforced by the United States Department of Transportation
(USDOT), which expressly allow for a reasonable-reliance
defense.
2.  Culpability in state and federal RCRA enforcement
The commission is, of course, correct that the mani-
fest requirement itself does not identify a particular mental
state or level of culpability necessary to establish a violation.
That omission, however, would not necessarily be given deci-
sive weight if a contrary intent were revealed by the rule’s
statutory and regulatory context—namely, the remaining
statutes and rules that comprise the rest of Oregon’s haz-
ardous waste program. See Gafur v. Legacy Good Samaritan
Hospital, 344 Or 525, 533, 185 P3d 446 (2008) (identifying
context of an administrative rule as including “other pro-
visions of the same rule, other related rules, the statute
pursuant to which the rule was created, and other related
statutes”).
When we expand the analysis to the rule’s statutory
and regulatory context, we discover substantial support for
the commission’s strict liability interpretation. In particular,
the legislature and the commission established a regulatory
scheme that imposes numerous substantive standards—
requiring or prohibiting certain specific conduct—and then
authorized the department to enforce those substantive
standards through different types of offenses. The primary
factor distinguishing the offenses is the level of culpability
of the party that breached the substantive standard. As a
party’s culpability increases, so does the authorized penalty.
In this case, the substantive standard is contained
in the manifest requirement, which prohibits transporters
from accepting hazardous waste without a manifest. The
Cite as 361 Or 1 (2017) 15
legislature and the commission have established two civil
offenses to enforce that substantive standard: a violation
and a more egregious violation, known as an “extreme vio-
lation.” Under authority provided by the legislature, ORS
468.130(1), the department may “assess a civil penalty
for any violation.” OAR 340-012-0045; see also OAR 340-
012-0068(1)(e) (defining a Class I violation as including
“[a]ccepting, transporting or offering for transport hazard-
ous waste without a uniform hazardous waste manifest”).
Under that provision, which is what the department used to
assess a penalty against ORRCO in this case, the depart-
ment’s authority to assess a civil penalty for a violation is not
subject to a culpability requirement. At the time of enforce-
ment, the department was authorized to assess a penalty of
up to $10,000. ORS 468.130(1).
However, if the department presents evidence of a
party’s culpable mental state, it can establish an extreme
violation. ORS 468.996(1). A party commits an extreme
violation by “intentionally or recklessly violat[ing]” haz-
ardous waste laws that “results in or creates the immi-
nent likelihood for an extreme hazard to the public health
or which causes extensive damage to the environment.” Id.If the department determines that a party has committed
an extreme violation, then it may assess a penalty of up to
$100,000. Id.; OAR 340-012-0155(1) (same).
In addition to those civil offenses, the legislature
also has established two criminal offenses related to the
manifest requirement and has made a defendant’s culpable
mental state an element of those offenses as well. If a party
knowingly transports hazardous waste in violation of haz-
ardous waste laws, then that party may be guilty of “unlaw-
ful transport of hazardous waste in the second degree.” ORS
468.929(1). That offense is a Class B misdemeanor, which
would subject the party to a penalty of up to six months
in prison, a $10,000 fine, or both. ORS 468.929(2); ORS
161.615(2). And if, while knowingly transporting hazard-
ous waste in violation of hazardous waste laws, a party
also “recklessly causes substantial harm to human health
or the environment” or “[k]nowingly disregards the law in
committing the violation,” then that party may be guilty of
16 Oil Re-Refining Co. v. Environmental Quality Comm.
“unlawful transport of hazardous waste in the first degree.”
ORS 468.931(1). That offense is a Class B felony, which sub-
jects the party to a penalty of up to 10 years in prison, a
$250,000 fine, or both. ORS 161.605(2); ORS 161.625(1)(c).
The fact that lawmakers expressly chose to require
evidence of culpable mental states for extreme violations and
criminal offenses but not for simple violations strongly sug-
gests that lawmakers intended to authorize the department
to bring enforcement actions for simple violations without
evidence of a culpable mental state. That reading is fur-
ther supported by the statutes and regulations identifying
the factors that must be considered when assessing a civil
penalty.
In ORS 468.130(2)(f), the legislature directed the
commission to consider a respondent’s culpability when
determining the amount of the fine to impose—specifically,
to consider “[w]hether the cause of the violation was an
unavoidable accident, negligence or an intentional act.”
Within the context of that statute, “unavoidable accident”
is best understood as referring to a violation that does not
result from a respondent’s negligent or intentional conduct.
See, e.g., Restatement (Second) of Torts § 8 (1965) (“The words
‘unavoidable accident’ are used throughout the Restatement
of this Subject to denote the fact that the harm which is so
described is not caused by any tortious act of the one whose
conduct is in question.”).
The commission has adopted rules carrying out
that legislative direction. Subject to exceptions not rele-
vant here, those rules require the department to calculate
a civil penalty according to a multifactor formula that looks
at the class and magnitude of the violation, the economic
benefit received by the respondent, and certain mitigating
and aggravating factors. OAR 340-012-0045. A respondent’s
level of culpability is one of those potentially aggravating
factors that may increase a respondent’s penalty. OAR 340-
012-0145(5). With regard to culpability, the greatest increase
results from a finding that the respondent acted flagrantly.
OAR 340-012-0145(5)(a)(D). Smaller amounts are added if
the respondent acted recklessly, negligently, or with con-
structive knowledge. OAR 340-012-0145(5)(a)(B) - (C). If the
Cite as 361 Or 1 (2017) 17
department presents insufficient evidence to establish that
the respondent acted with any culpable mental state, then
the commission does not increase the respondent’s penalty
to account for the respondent’s mental state. OAR 340-012-
0145(5)(a)(A).7
Together, the provisions indicate that, as it relates
to simple violations, a respondent’s level of culpability is a
penalty factor rather than a liability factor. In other words,
a respondent’s level of culpability may be used to determine
the amount of the fine assessed for a violation, but it is not
used to determine whether a respondent has violated a sub-
stantive standard in the first place.
That reading is consistent with the analogous fed-
eral RCRA program, which provides the baseline level of
stringency for Oregon’s hazardous waste program. 42 USC
§§ 6926(b), 6929 (requiring state programs to be at least as
stringent as the federal RCRA program). Congress estab-
lished separate offenses for hazardous waste violations based
on a party’s culpable mental state. Under 42 USC section
6928(d)(5), a party who knowingly transports hazardous
waste without a manifest may be subject to criminal penal-
ties. See also 42 USC § 6928(e) (establishing crime of know-
ing endangerment based on violation of manifest require-
ment). But establishing liability for a civil penalty requires
no such mental state. In 42 USC section 6928(g), Congress
provided, “Any person who violates any requirement of this
subchapter shall be liable to the United States for a civil pen-
alty in an amount not to exceed $25,000 for each such vio-
lation.”8 Because Congress included a “knowing” standard
7
Before the commission, the parties disputed this penalty factor. The depart-
ment alleged that ORRCO acted intentionally, while ORRCO contended that it
acted reasonably—i.e., that the department presented insufficient evidence to
establish that ORRCO acted with any culpable mental state. The commission, how-
ever, did not resolve that dispute, because its resolution would not have affected
the penalty assessed. By statute, the commission was authorized to assess a maxi-
mum penalty of $10,000 per violation. The penalty factors that the commission did
consider already pushed ORRCO beyond that maximum penalty. As a result, the
commission determined that the culpability penalty factor was irrelevant.
8
That statute was modeled after the civil liability provision under the Clean
Water Act, 33 USC section 1319(d). United States v. Liviola, 605 F Supp 96, 100
(ND Ohio 1985). Courts uniformly interpret that provision as imposing strict
liability. See Kelly v. U.S. E.P.A., 203 F3d 519, 522 (7th Cir 2000) (collecting cases
applying the Clean Water Act).
18 Oil Re-Refining Co. v. Environmental Quality Comm.
in the provision establishing criminal penalties but omit-
ted a culpability standard in the provision establishing civil
penalties, courts have not required evidence of a culpable
mental state to impose civil penalties under RCRA. See, e.g.,
United States v. Charles George Trucking Co., Inc., 642 F
Supp 329, 333-34 (D Mass 1986) (contrasting criminal lia-
bility and noting that “the imposition of the § 6928(g) pen-
alty does not require a finding of scienter”); United States v.
Liviola, 605 F Supp 96, 100 (ND Ohio 1985) (“[T]he explicit
language of RCRA requires willful intent only for criminal
penalties under §§ 6928(d) and (e); had Congress desired to
impose such a prerequisite for civil penalties, it would have
done so.”).
And, as within the state scheme, Congress rele-
gated a party’s level of culpability to influencing the civil
penalty amount, rather than determining whether a viola-
tion occurred in the first place. See 42 USC § 6928(a) (“In
assessing such a penalty, the Administrator shall take into
account the seriousness of the violation and any good faith
efforts to comply with applicable requirements.”); U.S. EPA
v. Environmental Waste Control, Inc., 710 F Supp 1172, 1213
(ND Ind 1989), aff’d sub nom. U.S. EPA v. Environmental
Waste Control, Inc., 917 F2d 327 (7th Cir 1990) (holding that
the respondent’s “efforts to determine the insurance cov-
erage required by RCRA regulations are pertinent to the
scope of relief and penalties” but such “good faith in mak-
ing those efforts, are not relevant to determining whether
[respondent] complied with those regulations”).
Thus, RCRA’s civil enforcement provision, 42 USC
section 6928(g), establishes a strict liability standard for
simple violations. Courts have repeatedly confirmed that
reading. See, e.g., United States v. JG-24, Inc., 331 F Supp
2d 14, 70 (DPR 2004), aff’d, 478 F3d 28 (1st Cir 2007) (“Civil
liability under RCRA is strict[.]”); United States v. Domestic
Industries, Inc., 32 F Supp 2d 855, 866 (ED Va 1999) (“RCRA
provides for strict liability.”); United States v. Allegan
Metal Finishing Co., 696 F Supp 275, 287 (WD Mich 1988)
(“[T]he civil violations of RCRA provisions are properly
characterized as strict liability offenses.”); United States v.
Vineland Chem. Co., Inc., CIV. A. 86-1936, 1990 WL 157509,
Cite as 361 Or 1 (2017) 19
at *10 (D NJ Apr 30, 1990), aff’d, 931 F2d 52 (3d Cir 1991)
(“Defendants are strictly liable for RCRA violations.”).9
ORRCO does not cite any case law, administrative
guidance, or legislative history suggesting that RCRA’s civil
enforcement provision, 42 USC section 6928(g), is anything
other than a strict liability statute. Instead, ORRCO con-
tends that reading that provision as imposing a strict liabil-
ity standard would be unfair and ineffective as a deterrent
because, according to ORRCO, it may be impossible in many
cases for the transporter to know whether the material it
is transporting is hazardous waste triggering the manifest
requirement.
Contrary to ORRCO’s contention, however, courts
have rejected impossibility as a defense to RCRA civil
enforcement. See, e.g., Domestic Indus., Inc., 32 F Supp 2d
at 867 n 8 (“[I]t is not a defense to argue that compliance
with the RCRA regulations was impossible.”). Moreover,
in our view, such an enforcement scheme is not inherently
unfair. If a transporter relies on another’s characterization
of the waste, the transporter could seek indemnification to
account for the risk that the characterization is wrong. And
the EPA maintains discretion not to bring cases if doing so
would result in substantial inequities.
Further, it is not unreasonable to think that a strict
liability standard is necessary to carry out the deterrence
intended by Congress. See JG-24, Inc., 331 F Supp 2d at 70
(stating that “[a] central purpose of civil penalties under
RCRA is deterrence”). “Although directed in part to the vio-
lators themselves, the deterrent value of a substantial civil
penalty is focused squarely on others to whom the law also
applies.” Id. Thus, although a strict liability standard may
have little effect on a transporter who takes great care to
avoid violations, such a standard may be necessary to deter
9
The only decision this court could find addressing the scope of the manifest
requirement is a decision by the Massachusetts Department of Environmental
Protection, In the Matter of: D&J Transportation Specialists, Inc., 1991 WL
438196 (Jan 9, 1991). Applying an analogous state regulation, the Massachusetts
Department of Environmental Protection rejected a respondent’s reasonable-
reliance defense: “[T]here would be no rationale under customary interpretations
of analogous laws to read into Chapter 21C a knowledge requirement which is not
set forth in the statute or its implementing regulations.” Id. at *4.
20 Oil Re-Refining Co. v. Environmental Quality Comm.
transporters who could act with more care but who fail to do
so because they believe that the EPA would have difficulty
proving a negligent or intentional mental state.
For example, traffic violations are often strict liabil-
ity offenses. See State v. Stroup, 290 Or 185, 202 n 14, 620
P2d 1359 (1980) (so noting). It might be difficult for a driver
to know immediately if his or her brake light has stopped
working. But it might also be difficult for a police officer to
gather evidence establishing that the driver knew, or should
have known, that his or her brake light had stopped work-
ing at the time of the traffic stop. Because of the low risk of
enforcement in that hypothetical circumstance, a negligence
or intentionality standard would not operate as an effective
deterrent to a driver who knew, or should have known, of the
broken brake light. And deterrence is of particular concern
in violations that affect the public welfare, such as traffic
violations. Id.Courts have similarly considered the public welfare
effects of environmental violations when imposing a strict
liability standard under RCRA’s civil enforcement provision.
See, e.g., Domestic Industries, Inc., 32 F Supp 2d at 867 (“As
the Supreme Court noted Liporata v. United States, 471 US
419, 433, 105 S Ct 2084, 85 LEd 2d 434 (1985), statutes
designed to protect the public health and welfare are more
likely candidates for diminished mens rea requirements.
RCRA and other similar environmental protection statutes
fall within this category.”).
Thus, the enforcement scheme intended by the leg-
islature and the commission, as well as by Congress and
the EPA, provides a compelling basis for affirming the com-
mission’s strict liability interpretation. ORRCO neverthe-
less argues against that reading based on additional con-
text provided by 40 CFR section 262.11 and rules adopted
by USDOT.
3.  40 CFR section 262.11
First, ORRCO relies on 40 CFR section 262.11,
which was promulgated by the EPA as part of its RCRA
program and adopted by the commission through OAR 340-
100-0002(1). Under 40 CFR section 262.11, a generator of
Cite as 361 Or 1 (2017) 21
solid waste must determine whether the waste is hazardous
or nonhazardous. Id. (“A person who generates a solid waste,
as defined in 40 CFR 261.2, must determine if that waste is a
hazardous waste using [a particular] method[.]”). The man-
ifest requirement only applies to hazardous waste. Thus, if
a transporter reasonably relies on a generator’s determina-
tion that the waste is not hazardous, then the transporter
would not know that the manifest requirement applies in
the first place. According to ORRCO, imposing liability on
a transporter in that circumstance would, in effect, require
a transporter to make its own independent determination
about whether the waste is hazardous waste, even though a
transporter is often in a worse position than the generator
to make that determination.10
Contrary to ORRCO’s characterization, however,
the requirement imposed on generators under 40 CFR
section 262.11 is distinct from the manifest requirement
imposed on transporters under 40 CFR section 263.20(a)(1).
The former requires determining whether waste is haz-
ardous and the latter prohibits accepting hazardous waste
without a manifest. ORRCO improperly conflates those
provisions because a generator who fails to properly deter-
mine whether waste is hazardous might cause a transporter
to accept hazardous waste without a manifest, even if the
transporter has taken all reasonable precautions—or even
extraordinary precautions—to comply with the law. In that
sense, a generator who violates 40 CFR section 262.11 may
be the party at fault for a transporter’s separate violation of
the manifest requirement in 40 CFR section 263.20(a)(1).
ORRCO’s argument presumes that fault is relevant,
but ORRCO fails to explain how 40 CFR section 262.11
makes fault relevant. Fault would be relevant only if the
manifest requirement were subject to a liability standard
10
ORRCO further points out that there are circumstances in which, by law,
transporters are required to make a determination about whether waste is haz-
ardous: (1) when a transporter imports waste from a foreign country outside of
the EPA’s jurisdiction; (2) when a transporter mixes different wastes, potentially
making waste hazardous that was nonhazardous when the transporter accepted
it. 40 CFR § 263.10(c). ORRCO contends that, because this case is not one of
those circumstances, it should not be required to make that its own independent
determination about whether the waste is hazardous.
22 Oil Re-Refining Co. v. Environmental Quality Comm.
other than strict liability, such as negligence or intent. A
strict liability standard is distinct from other standards
specifically because it allows liability to be imposed with-
out a finding of fault. See, e.g., Restatement (Third) of Torts:
Phys. & Emot. Harm ch. 4 Scope Note (2010) (“[L]iability
for negligence or for intent is liability based on fault. By
contrast, strict liability signifies liability without fault, or
at least without any proof of fault.”). By premising its argu-
ment on fault being a relevant consideration, ORRCO begs
the question of whether the manifest requirement is subject
to a strict liability standard and, thus, fails to counter the
analysis above, which suggests that the manifest require-
ment is subject to strict liability.11
4.  Statutes and rules enforced by the USDOT
ORRCO makes a second contextual argument, how-
ever. ORRCO argues that, regardless of whether RCRA’s
civil enforcement provision establishes a strict liability
standard in general, that standard should not be applied to
the manifest requirement. ORRCO contends that, because
the manifest requirement is an EPA regulation imposed on
transporters, it must be reconciled with companion statutes
and rules enforced by the USDOT: the Hazardous Material
Transportation Act (HMTA), as amended and codified in
49 USC section 5101 et seq., and the USDOT’s hazardous
materials regulations adopted pursuant to that act, 49 CFR
parts 100 to 180.
11
ORRCO’s reliance on Crockett v. Uniroyal, Inc., 772 F2d 1524 (11th Cir
1985), where the court accepted a transporter’s reasonable-reliance defense, is
similarly misplaced. There, a transporter consigned a railcar to a third party.
Although the railcar contained residue of poison that had previously been
shipped in the car, the transporter provided the third party with paperwork,
completed based on information provided by the waste generator, stating that the
railcar was empty. The third party sued the generator for negligence after suffer-
ing injuries from the poison residue remaining in the railcar. The generator then
sued the transporter based on indemnity and contribution—claims that turned
on whether the transporter’s conduct was negligent. Id. at 1531. In considering
the generator’s claims against the transporter, the court noted that EPA regu-
lations did not require a transporter to make an independent determination of
whether the material being transported was hazardous waste and accepted the
transporter’s reasonable-reliance defense against the allegation that the trans-
porter acted negligently. Id. at 1534. Thus, Crockett would be relevant only if the
standard of liability in this case were negligence. But Crockett does not speak to
the issue before us—namely, determining what standard of liability should apply
in the first place—nor does it involve agency enforcement of a waste regulation.
Cite as 361 Or 1 (2017) 23
ORRCO points out that, although Congress autho-
rized the EPA to promulgate rules applied to transporters of
hazardous waste, Congress required the EPA to ensure that
its rules are “consistent with the requirements” imposed by
USDOT, 42 USC section 6923(b). One of the rules adopted
by the EPA that must be consistent with USDOT regulations
is the EPA’s manifest requirement. See 42 USC § 6923(a)(3)
(so stating). USDOT promulgated a manifest requirement
that is almost identical to the EPA’s manifest requirement:
“No person may offer, transport, transfer, or deliver a haz-
ardous waste (waste) unless * * * [a] hazardous waste man-
ifest (manifest) is prepared in accordance with 40 CFR
262.20 and is signed, carried, and given as required of that
person by this section.”
49 CFR § 172.205(a); see also 49 CFR § 171.3(b)(2) (requir-
ing transporters to comply with 49 CFR § 172.205(a)).
Although USDOT has used wording similar to the
EPA’s manifest requirement, USDOT has stated that its
manifest requirement and other requirements imposed on
transporters are not subject to a strict liability standard. In
1998, USDOT issued a formal interpretation of its regula-
tions governing transporters who accept hazardous materi-
als, including hazardous waste. 63 Fed Reg 30411 (June 4,
1998). In that formal interpretation, USDOT explains that
a civil penalty will be assessed only against transporters
who knowingly violate those regulations, thus permitting a
reasonable-reliance defense:
“[A]n offeror who fails to properly declare (and prepare)
a shipment of hazardous materials bears the primary
responsibility for a hidden shipment. Whenever hazardous
materials have not been shipped in compliance with the
HMR, DOT generally will attempt to identify and bring
an enforcement proceeding against the person who first
caused the transportation of a noncomplying shipment.
“* * * * *
“To the extent that any carrier, regardless of the mode
of transportation, is truly ‘innocent’ in accepting an unde-
clared or hidden shipment of hazardous materials, it lacks
the knowledge required for assessment of a civil penalty.”
Id. at 30412.
24 Oil Re-Refining Co. v. Environmental Quality Comm.
ORRCO argues that, to be consistent with USDOT’s
manifest requirement, the EPA’s manifest requirement
must be read to allow a civil penalty only if the transporter
acts knowingly. And, if we must read the EPA’s manifest
requirement as imposing a knowledge standard, then we
should assume that the commission intended to adopt that
knowledge standard when it adopted the EPA’s manifest
requirement by reference in OAR 340-100-0002(1).
We reject ORRCO’s argument because it ignores the
source of USDOT’s knowledge standard—namely, USDOT’s
civil enforcement statute, 49 USC section 5123(a). Under that
provision, USDOT can assess a civil penalty only against
“[a] person that knowingly violates” the USDOT’s hazard-
ous materials rules. (Emphasis added.) Thus, USDOT does
not assess liability on transporters who unknowingly accept
hazardous waste without a manifest because USDOT has
no authority to do so. The USDOT formal interpretation
that ORRCO relies on, 63 Fed Reg at 30412, is not a for-
mal interpretation of the manifest requirement or any other
substantive regulation imposed on transporters. Instead, it
is an application of USDOT’s civil enforcement provision.
See id. (noting that USDOT has “the authority in 49 U.S.C.
5123 to assess a civil penalty against any person who ‘know-
ingly violates’ any requirement in the [hazardous materials
rules]”). As a result, that formal interpretation merely rec-
ognizes a limit that Congress placed on USDOT’s authority
to assess civil penalties. But Congress placed no such limit
on the authority that it granted the EPA to enforce RCRA.
The manifest requirements imposed by the com-
mission, the EPA, and the USDOT are consistent. They
each prohibit a transporter from transporting hazardous
waste without a manifest. 49 CFR § 172.205(a); 40 CFR
§ 263.20(a)(1), as adopted by OAR 340-100-0002(1). A trans-
porter who transports hazardous waste without a manifest
violates each of those provisions. The difference is that the
commission and the EPA have the authority to assess a pen-
alty for such a violation, but USDOT has the authority to
assess such a penalty only if the violation was knowing.12
12
Because we hold that the EPA’s and the commission’s manifest requirement
in 40 CFR section 263.20(a)(1), as adopted by OAR 340-100-0002(1), is consistent
Cite as 361 Or 1 (2017) 25
That difference does not make the subject provisions incom-
patible or contradictory.
ORRCO additionally relies on a 2005 rule amend-
ment by USDOT expressly acknowledging that transporters
may reasonably rely on information provided by generators.
See 70 Fed Reg 43638, 43644 (July 28, 2005) (amending 49
CFR § 171.2(f)); 49 CFR § 171.2(f) (“Each carrier who trans-
ports a hazardous material in commerce may rely on infor-
mation provided by the offeror of the hazardous material
or a prior carrier, unless the carrier knows or, a reasonable
person, acting in the circumstances and exercising reason-
able care, would have knowledge that the information pro-
vided by the offeror or prior carrier is incorrect.”).
That amendment, however, does not change our
analysis. The amendment applies to all USDOT rules and
is not specific to the manifest requirement. At the time of
its adoption, USDOT stated that the amendment merely
reflected the limits imposed on its statutory enforcement
authority by the knowledge standard described above. See
70 Fed Reg at 43639 (“[T]he language proposed in § 171.2
should reflect the standard for ‘knowingly’ established in
Federal hazmat law. Therefore, in this final rule, we are
revising paragraphs (b) and (f) of § 171.2 (proposed as para-
graphs (a) and (b) of § 171.2 in the NPRM) for consistency
with Federal hazmat law.”). USDOT viewed the amendment
as a clarification of existing law, rather than a change in
its substantive law. Id. at 43639 (“[T]he [notice of proposed
rulemaking] proposed to clarify in § 171.2 that an offeror
or carrier of a hazardous material may rely on information
provided by a previous offeror or carrier in the absence of
knowledge that the information is incorrect.”). And ORRCO
has not identified any source indicating that the EPA has
regarded the amendment as one that requires a change to
the EPA’s own regulations.
with the USDOT’s manifest requirement in 49 CFR section 172.205(a), we need
not assess the legislative and administrative history that ORRCO cites, which
includes that the EPA’s regulations must be consistent with USDOT’s regula-
tions. We also need not assess ORRCO’s reliance on New York v. United States
Department of Transportation, 37 F Supp 2d 152 (NDNY 1999), a case about the
scope of the USDOT’s authority to preempt state laws that create obstacles to
carrying out or complying with the HMTA.
26 Oil Re-Refining Co. v. Environmental Quality Comm.
Because we reject ORRCO’s arguments and because
the statutory and regulatory context of the manifest require-
ment overwhelmingly suggest an intent to subject simple
violations of the manifest requirement to a strict liability
standard, we affirm the commission’s strict liability inter-
pretation of the manifest requirement.
B.  Permit Requirement
As noted above, the commission found ORRCO
strictly liable both for violations of the manifest requirement
in 40 CFR section 263.20(a)(1), as adopted by OAR 340-100-
0002(1), and for violations of the permit requirement in
ORS 466.095(1)(c). ORRCO substantially ignores the per-
mit requirement, ORS 466.095(1)(c), in its briefing, relying
entirely on the arguments it made with respect to the man-
ifest requirement. Those arguments fail here as well.
In contrast to the manifest requirement, which
appears in a regulation, the permit requirement is con-
tained in a state statute, ORS 466.095(1)(c):
“[N]o person shall * * * [e]stablish, construct or operate
a hazardous waste treatment site in this state without
obtaining a hazardous waste treatment site permit issued
pursuant to ORS 466.005 to 466.385 and 466.992.”
Id.
We generally interpret statutes by “examin[ing]
the statutory text in context, along with its legislative his-
tory, applying as needed relevant rules and canons of con-
struction.” Lake Oswego Preservation Society v. City of Lake
Oswego, 360 Or 115, 124, 379 P3d 462 (2016). Although the
commission enforces that statute, the commission concedes
that its interpretation of the permit requirement is not enti-
tled to deference. See OR-OSHA v. CBI Services, Inc., 356
Or 577, 585, 341 P3d 701 (2014) (identifying circumstances
justifying deference to an agency’s statutory construction).
The permit requirement is subject to the same reg-
ulatory framework that applies to the manifest require-
ment identified above. The department enforced the permit
requirement by assessing a penalty against ORRCO under
its legislatively delegated authority to “assess a civil penalty
Cite as 361 Or 1 (2017) 27
for any violation.” OAR 340-012-0045; see ORS 468.130(1)
(providing legislative authorization); see also OAR 340-
012-0068(1)(c) (defining a Class I violation as including
“[o]perating a hazardous waste treatment, storage or dis-
posal facility (TSD) without first obtaining a permit or with-
out having interim status”). The department’s authority to
assess a penalty for a simple violation is not subject to a
culpable mental state requirement, such as those defining
an “extreme violation,” ORS 468.996(1), or related crimi-
nal offenses, ORS 468.922(1) (defining unlawful treatment
of hazardous waste in the second degree); ORS 468.926(1)
(defining unlawful treatment of hazardous waste in the first
degree). Instead, as it relates to simple violations, the leg-
islature has made culpability a penalty factor rather than
a liability factor. ORS 468.130(2)(f); see also OAR 340-012-
0145(5) (identifying culpability as a factor increasing a
respondent’s civil penalty).
Because the permit requirement is subject to the
same regulatory framework that applies to the manifest
requirement, we reject ORRCO’s arguments as to the permit
requirement for the same reason that we have rejected them
as to the manifest requirement. Further, decisions applying
the analogous rule within the EPA’s RCRA program have
similarly concluded that the provision is subject to a strict
liability standard. See, e.g., Domestic Industries, Inc., 32 F
Supp 2d at 868 (applying the federal permit requirement and
noting that “[t]here is no explicit knowledge requirement for
liability under this section of RCRA”); In the Matter of Gary
Development Co., RCRA-V-W-86-R-45, 1996 WL 316510, at
*14 (EPA Apr 8, 1996) (“RCRA is a strict liability statute,
and acceptance of hazardous waste for disposal, whether
knowingly or not, requires that all applicable regulatory
requirements for hazardous waste disposal be met.”).13
For the foregoing reasons, we reject ORRCO’s argu-
ment that, because it reasonably relied on assurances from
13
See also Gerrard, 4A-29 Environmental Law Practice Guide § 29.05 (“The
full brunt of EPA’s enforcement efforts under RCRA tends to be focused on the
owners and operators of TSD facilities, who will be held strictly liable to comply
with the literal language of the regulations and the TSD permits. Non-negligent
TSD civil violations, even where no meaningful environmental damage is done,
are increasingly resulting in the assessment of civil penalties in the six or seven
figure range.” (Emphasis added.)).
28 Oil Re-Refining Co. v. Environmental Quality Comm.
the generator of the material that it transported and dis-
posed of that the material was not hazardous waste, it did
not violate the hazardous waste laws as charged by the
department.
The decision of the Court of Appeals and the
final order of the Environmental Quality Commission are
affirmed.