(2) The department may use moneys from the Waste Tire Recycling Account to assist a permittee in removing or processing the waste tires. Such assistance may include the payment by the department of the total costs of removal or processing the waste tires and the entering into an agreement between the department and the permittee that requires the permittee to pay to the department a portion of the costs of removal or processing calculated according to rules adopted by the Environmental Quality Commission. Moneys may be used only after the commission finds that:

(a) Special circumstances make such assistance appropriate; or

(b) Strict compliance with the provisions of ORS 459.705 to 459.790 would result in substantial curtailment or closing of the permittee’s business or operation or the bankruptcy of the permittee.

(3) The department may proceed under subsections (4) to (8) of this section if:

(a) A person fails to apply for or obtain a waste tire storage site permit under ORS 459.715 to 459.760;

(b) A permittee fails to meet the conditions of such permit; or

(c) An owner of real property fails to remove waste tires as required by the department.

(4) The department may abate any danger or nuisance created by waste tires or other waste tire materials by removing or processing the tires or other waste tire materials. Before taking any action to abate the danger or nuisance, the department shall give any persons having the care, custody or control of the waste tires or materials, or owning the property upon which the tires or materials are located, notice of the department’s intentions and order the person to abate the danger or nuisance in a manner approved by the department. After the abatement, the department, upon request, may conduct a hearing according to the provisions of ORS chapter 183 applicable to contested case hearings to determine the financial responsibility of any party involved. If a hearing is not requested, the department may proceed to recover the costs incurred in abating the waste tires or other waste tire materials.

(5) If a person fails to take action as required under subsection (4) of this section within the time specified the Director of the Department of Environmental Quality may abate the danger or nuisance. The order issued under subsection (4) of this section may include entering the property where the danger or nuisance is located, taking the tires or other waste tire materials into public custody and providing for their processing or removal.

(6) The department may bring an action or proceeding against the property owner or the person having possession, care, custody or control of the waste tires or other waste tire materials to enforce the abatement order issued under subsection (4) of this section and recover any reasonable and necessary expenses incurred by the department for abatement costs, including administrative and legal expenses. The department’s certification of expenses shall be prima facie evidence that the expenses are reasonable and necessary.

(7) In lieu of entering an order and conducting a contested case hearing, the department may enter into a stipulation, agreed settlement or consent order with any or all of the applicable parties, allowing the department to enter and remove the waste tires on the property. The stipulation, agreed settlement or consent order also may provide that the parties shall pay to the department either a specified sum of money representing the department’s costs in removing the waste tires from the property, or if the exact amount of the costs are unknown at the time of the agreement, the parties may agree to pay to the department a percentage of the department’s final costs incurred in removing the waste tires from the property. Upon completion of the waste tire removal, the department shall send to the applicable parties a certified statement indicating the total cost of removal and the percentage of the total costs the parties are required to pay to the department. The costs or percentage of costs to be paid by the parties shall be computed according to rules adopted by the Environmental Quality Commission.

(8) Nothing in ORS 459.705 to 459.790 shall affect the right of any person or local government unit to abate a danger or nuisance or to recover for damages to real property or personal injury related to the transportation, storage or disposal of waste tires. The department may reimburse a person or local government unit for the cost of abatement.

(9) No state or local government shall be liable for costs or damages as a result of actions taken under the provisions of ORS 459.705 to 459.790. This subsection shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the state or local government. For purposes of this subsection, reckless, willful or wanton misconduct shall constitute gross negligence. [1987 c.706 §15; 1991 c.882 §10; 1993 c.560 §70]