County of Klamath v. Ricard

Courts will “defer to [an] agency’s plausible interpretation of its own rule,” but otherwise will consider the text and context of the rule and “the rule’s adoption history.” Harris v. Dept. of Public Safety Standards, 287 Or App 111, 115, 400 P3d 1032, rev den, 362 Or 94 (2017).

Defendant appealed the trial court’s determination that he violated OAR 340-071-0130(2) (the rule), an administrative rule from the Department of Environmental Quality (DEQ), which required “all wastewater” be “treated and dispersed” as required by DEQ.  On appeal, Defendant argued that he could not have violated the rule because he was not living on the property at the time the citation was issued and therefore could not have created any wastewater.  In response, DEQ argued that the rule covered both actual and hypothetical wastewater.  Courts will “defer to [an] agency’s plausible interpretation of its own rule,” but otherwise will consider the text and context of the rule and “the rule’s adoption history.”  Harris v. Dept. of Public Safety Standards, 287 Or App 111, 115, 400 P3d 1032, rev den, 362 Or 94 (2017).  The Court found that DEQ’s interpretation of the rule was not plausible because humans must be present to create wastewater; “all wastewater” does not include hypothetical wastewater.  The Court held that the trial court misconstrued the rule and erred when it found Defendant in violation of the rule.  Reversed and remanded.