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(continued) rmittee of two to four UST facilities.
(H) Any violation, except a violation related to a spill or release, of a used oil statute, rule, permit or related order committed by a person that is a used oil generator.
(I) Unless listed under another penalty matrix, any violation of a hazardous waste management statute, rule, permit or related order committed by a person that is a conditionally exempt generator if the violation does not impact the person's generator status.
(J) Any violation of ORS Chapter 459 or other solid waste statute, rule, permit, or related order committed by a person with a population less than 5,000, as determined by the most recent national census.
(K) Any violation of the labeling requirements of ORS 459A.675 through 459A.685.
(L) Any violation of rigid pesticide container disposal requirements by a conditionally exempt generator of hazardous waste.
(b) The base penalty values for the $2,500 penalty matrix are as follows:
(A) Class I:
(i) Major -- $2500;
(ii) Moderate -- $1250;
(iii) Minor -- $625.
(B) Class II:
(i) Major -- $1250;
(ii) Moderate -- $625;
(iii) Minor -- $300.
(C) Class III: $200.
(5) $1,000 Penalty Matrix:
(a) The $1,000 penalty matrix applies to the following:
(A) Any violation of an open burning statute, rule, permit or related order committed by a residential owner-occupant at the residence, not listed under another penalty matrix.
(B) Any violation of visible emissions standards by operation of a vehicle.
(C) Any violation of an asbestos statute, rule, permit or related order committed by a residential owner-occupant.
(D) Any violation of an onsite sewage disposal statute, rule, permit or related order of OAR chapter 340, division 44 committed by a residential owner-occupant.
(E) Any violation of an UST statute, rule, permit or related order committed by a person who is the owner, operator or permittee of one UST facility.
(F) Any violation of an HOT statute, rule, permit or related order not listed under another penalty matrix.
(G) Any violation of a dry cleaning facility statute, rule, permit or related order.
(H) Any violation of a statute, rule, permit or order relating to rigid plastic containers, except for violation of the labeling requirements under OAR 459A.675 through 459A.685.
(I) Any violation of a statute, rule or order relating to the opportunity to recycle.
(J) Any violation of a statute, rule, permit or order relating to woodstoves, except a violation related to the sale of new or used woodstoves.
(K) Any violation of an UIC system statute, rule, permit or related order by a residential owner-occupant, when the UIC disposes of stormwater or sewage.
(L) Any violation by a person that has or should have applied for coverage under an NPDES 700-PM General Permit for Suction Dredges.
(b) The base penalty values for the $1,000 penalty matrix are as follows:
(A) Class I:
(i) Major -- $1000;
(ii) Moderate -- $500;
(iii) Minor -- $250.
(B) Class II:
(i) Major -- $500;
(ii) Moderate -- $250;
(iii) Minor -- $125.
(C) Class III: $100.
Stat. Auth.: ORS 468.020 & 468.090 - 468.140
Stats. Implemented: ORS 459.995, 459A.655, 459A.660, 459A.685 & 468.035
Hist.: DEQ 4-1989, f. & cert. ef. 3-14-89; DEQ 15-1990, f. & cert. ef. 3-30-90; DEQ 33-1990, f. & cert. ef. 8-15-90; DEQ 21-1992, f. & cert. ef. 8-11-92; DEQ 4-1994, f. & cert. ef. 3-14-94; DEQ 9-1996, f. & cert. ef. 7-10-96; DEQ 19-1998, f. & cert. ef. 10-12-98; DEQ 6-2001, f. 6-18-01, cert. ef. 7-1-01; Renumbered from 340-012-0042, DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06; DEQ 6-2006, f. & cert. ef. 6-29-06
340-012-0145
Determination of Aggravating or Mitigating Factors
(1) Each of the aggravating or mitigating factors is determined, as described below, and then applied to the civil penalty formula in OAR 340-012-0045(2).
(2) "P" is whether the respondent has any prior significant actions (PSAs). A violation becomes a PSA on the date the first FEA in which it is cited is issued.
(a) Except as otherwise provided in this section, the values for "P" and the finding that supports each are as follows:
(A) 0 if no PSAs or there is insufficient information on which to base a finding under this section.
(B) 1 if the PSA included one Class II violation or two Class III violations.
(C) 2 if the PSA (s) included one Class I violation or Class I equivalent.
(D) For each additional Class I violation or Class I equivalent, the value of "P" is increased by 1.
(b) The value of "P" will not exceed 10.
(c) If any of the PSAs were issued under ORS 468.996, the value of "P" will be 10.
(d) In determining the value of "P," the department will:
(A) Reduce the value of "P" by:
(i) 2 if all the formal enforcement actions in which PSAs were cited were issued more than three years before the date the current violation occurred.
(ii) 4 if all the formal enforcement actions in which PSAs were cited were issued more than five years before the date the current violation occurred.
(B) Include the PSAs:
(i) At all facilities owned or operated by the same violator within the state of Oregon; and
(ii) That involved the same media (air, water or land) as the violations that are the subject of the current FEA.
(e) In applying subsection (2)(d)(A), the value of "P" may not be reduced below zero.
(f) PSAs that are more than ten years old are not included in determining the value of "P."
(3) "H" is the respondent's history of correcting PSAs.
(a) The values for "H" and the finding that supports each are as follows:
(A) -2 if the Respondent corrected all violations cited as PSAs.
(B) -1 if the violations were uncorrectable and the respondent took reasonable efforts to minimize the effects of the violations cited as PSAs; or
(C) 0 if there is no prior history or if there is insufficient information on which to base a finding under paragraphs (3)(a)(A) or (B).
(b) The sum of values for "P" and "H" may not be less than 1 unless the respondent took extraordinary efforts to correct or minimize the effects of all PSAs. In no case may the sum of the values of "P" and "H" be less than zero.
(4) "O" is whether the violation was repeated or ongoing.
(a) The values for "O" and the finding that supports each are as follows:
(A) 0 if the violation existed for one day or less and did not recur on the same day, or if there is insufficient information on which to base a finding under paragraphs (4)(a)(B) through (4)(a)(D).
(B) 2 if the violation recurred on the same day, or existed for or occurred on more than one day up to and including six days, which need not be consecutive days.
(C) 3 if the violation existed for or occurred from seven to 28 days, which need not be consecutive days.
(D) 4 if the violation existed for or occurred on more than 28 days, which need not be consecutive days.
(b) The department may, at its discretion, assess separate penalties for each day that a violation occurs. If the department does so, the O factor for each affected violation will be set at 0.
(5) "M" is the mental state of the respondent. For any violation where the findings support more than one mental state, the mental state with the highest value will apply.
(a) The values for "M" and the finding that supports each are as follows:
(A) 0 if there is insufficient information on which to base a finding under paragraphs (5)(a)(B) through (5)(a)(D).
(B) 2 if the respondent's conduct was negligent or the respondent had constructive knowledge (reasonably should have known) that the conduct would be a violation. Holding a permit that prohibits or requires conduct is presumed to constitute at least constructive knowledge and may be actual knowledge depending on the specific facts of the case.
(C) 6 if the respondent's conduct was reckless, or the respondent had actual knowledge that its conduct would be a violation and respondent's conduct was intentional. A respondent that previously received a Notice of Noncompliance, WL, PEN or any FEA for the same violation is presumed to have actual knowledge. Holding a permit that prohibits or requires conduct may be actual knowledge depending on the specific facts of the case.
(D) 10 if respondent acted flagrantly.
(6) "C" is the respondent's efforts to correct the violation.
(a) The values for "C" and the finding that supports each are as follows:
(A) -3 if the respondent made extraordinary efforts to correct the violation, or took extraordinary efforts to minimize the effects of the violation.
(B) -2 if the respondent made reasonable efforts to correct the violation, reasonable affirmative efforts to minimize the effects of the violation, or extraordinary efforts to ensure the violation would not be repeated.
(C) -1 if the respondent eventually made efforts to correct the violation, or took affirmative efforts to minimize the effects of the violation.
(D) 0 if there is insufficient information to make a finding under paragraphs (6)(a)(A) through (6)(a)(C), or (6)(a)(E), or if the violation or the effects of the violation could not be corrected or minimized.
(E) 2 if the respondent did not address the violation as described in paragraphs (6)(a)(A) through (6)(a)(C) and the facts do not support a finding under paragraph (6)(a)(D).
Stat. Auth.: ORS 468.020 & 468.130
Stats. Implemented: ORS 459.376, 459.995, 465.900, 465.992, 466.990 - 994, 468.090 - 140 & 468B.450 Hist.: DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05
340-012-0150
Determination of Economic Benefit
(1) The Economic Benefit (EB) is the approximate dollar value of the benefit gained and the costs avoided or delayed (without duplication) as a result of the respondent's noncompliance. The EB may be determined using the U.S. Environmental Protection Agency's BEN computer model. Upon request of the respondent, the department will provide the name of the version of the model used and respond to any reasonable request for information about the content or operation of the model. The model's standard values for income tax rates, inflation rate and discount rate are presumed to apply to all respondents unless a specific respondent can demonstrate that the standard value does not reflect that respondent's actual circumstance. Upon request of the Respondent, the department will use the model in determining the economic benefit component of a civil penalty.
(2) The department may make, for use in the applicable model, a reasonable estimate of the benefits gained and the costs avoided or delayed by the respondent. Economic benefit will be calculated without duplicating or double-counting the advantages realized by respondent as a result of its noncompliance.
(3) The department need not calculate EB if the department makes a reasonable determination that the EB is de minimis or if there is insufficient information reasonably available to the department on which to make an estimate under section (2) of this rule.
(4) The department may assess EB whether or not it assesses any other portion of the civil penalty using the formula in OAR 340-012-0045.
(5) The department's calculation of EB may not result in a civil penalty for a violation that exceeds the maximum civil penalty allowed by rule or statute. However, when a violation has occurred or been repeated for more than one day, the department may treat the violation as extending over at least as many days as necessary to recover the economic benefit of the violation. When the purpose of treating a violation as extending over more than one day is to recover the economic benefit, the department has the discretion not to impose the base penalty portion of the civil penalty. Nothing in this section precludes the department from assessing a penalty of up to the maximum allowed for the violation by statute.
Stat. Auth.: ORS 468.020 & 468.090 - 468.140
Stats. Implemented: ORS 459.376, 459.995, 465.900, 465.992, 466.210, 466.990, 466.994, 467.050, 467.990, 468.090 - 468.140 & 468.996
Hist.: DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05
340-012-0155
Additional or Alternate Civil Penalties
(1) The following violations and violators may be subject to additional civil penalties as specified below:
(a) In addition to any other penalty prescribed by these rules, any person who intentionally or recklessly violates any provisions of ORS 164.785, 459.205-459.426, 459.705-459.790, ORS Chapters 465, 466, 467, 468, or 468A or 468B or any rule or standard or order of the commission adopted or issued pursuant to ORS 459.205-459.426, 459.705-459.790, ORS Chapters 465, 466, 467, 468, 468A, or 468B, that results in or creates the imminent likelihood for an extreme hazard to the public health or that causes extensive damage to the environment, may incur a civil penalty of up to $100,000. When determining the civil penalty to be assessed under this subsection, the director will apply the following procedures:
(A) Select one of the following base penalties after evaluating the cause of the violation:
(i) $50,000 if the violation was caused intentionally;
(ii) $75,000 if the violation was caused recklessly;
(iii) $100,000 if the violation was caused flagrantly.
(B) Then determine the civil penalty through application of the following formula: BP + [(.1 x BP) (P + H + O + C)] + EB.
(b) In addition to any other penalty prescribed by these rules, any person who intentionally or negligently causes or permits the discharge of oil to waters of the state will incur a civil penalty not to exceed $20,000 dollars for each violation. The amount of the penalty is determined by doubling the penalty derived from application of the $8,000 penalty matrix in 340-012-0140(2) and the civil penalty formula contained in OAR 340-012-0045.
(c) In addition to any other penalty prescribed by these rules, any person who willfully or negligently causes or permits the discharge of oil to state waters will incur, in addition to any other penalty derived from application of the $8,000 penalty matrix in 340-012-0140(2) and the civil penalty formula contained in OAR 340-012-0045, a civil penalty commensurate with the amount of damage incurred. The amount of the penalty will be determined by the director with the advice of the director of the Oregon Department of Fish and Wildlife. In determining the amount of the penalty, the director may consider the gravity of the violation, the previous record of the violator in complying with the provisions of ORS 468B.450 to 468B.460, and such other considerations the director deems appropriate.
(d) In addition to any other penalty prescribed by these rules, any person who has care, custody or control of a hazardous waste or a substance that would be a hazardous waste except for the fact that it is not discarded, useless or unwanted will incur a civil penalty according to the schedule set forth in this subsection for the destruction, due to contamination of food or water supply by such waste or substance, of any of the following wildlife that are property of the state:
(A) Each game mammal other than mountain sheep, mountain goat, elk or silver gray squirrel, $400.
(B) Each mountain sheep or mountain goat, $3,500.
(C) Each elk, $750.
(D) Each silver gray squirrel, $10.
(E) Each game bird other than wild turkey, $10.
(F) Each wild turkey, $50.
(G) Each game fish other than salmon or steelhead trout, $5.
(H) Each salmon or steelhead trout, $125.
(I) Each fur-bearing mammal other than bobcat or fisher, $50.
(J) Each bobcat or fisher, $350.
(K) Each specimen of any wildlife species whose survival is specified by the wildlife laws or the laws of the United States as threatened or endangered, $500.
(L) Each specimen of any wildlife species otherwise protected by the wildlife laws or the laws of the United States, but not otherwise referred to in this section, $25.
(2) The following violations are subject to the civil penalties specified below, in lieu of civil penalties calculated pursuant to OAR 340-012-0045:
(a) Until December 31, 2005, whenever an underground storage tank fee is due and owing under ORS 466.785 or 466.795, the director may issue a civil penalty of up to $100 for each day the fee is due and owing.
(b) Until December 31, 2005, the department will assess a field penalty as specified under OAR 340-150-0250 for Class I, Class II or Class III violations under OAR 340-012-0067 unless the department determines that an owner, operator or permittee is not eligible for the field penalty. In such cases of ineligibility, the penalty will be calculated according to the procedures in OAR chapter 340, division 12.
(c) Any owner or operator of a vessel discharging ballast water in violation of ORS 783.635 may incur a civil penalty not to exceed $5,000 for each violation. In determining the amount of the penalty, the director will consider whether the violation was intentional, negligent or without any fault and will consider the quality and nature of risks created by the violation, the previous record of the violator in complying with the provisions of ORS 468B.450 to 468B.460, and such other considerations the director deems appropriate.
(d) Any owner or operator of a vessel violating the ballast water reporting requirements in ORS 783.640 will incur a civil penalty not to exceed $500 per violation.
(e) Air emission sources operating under the Western Backstop SO2 Trading Program will be assessed a civil penalty of at least $5,000 for each ton and each day of violation in excess of the applicable allowance limitation as determined by OAR chapter 340 division 228.
(f) Any owner or operator of a confined animal feeding operation that has not applied for or does not have a permit required by ORS 468B.050 will be assessed a civil penalty of $500.
(g) Any person that fails to comply with Toxics Use and Hazardous Waste Reduction Plan, system or summary requirements of ORS 465.003 to 465.034 may incur a civil penalty of $500 for each violation on each day.
Stat. Auth.: ORS 465, 466, 468.020, 468.130, 468.996 & 783.992
Stats. Implemented: ORS 465.021, 466.785, 466.835, 466.992, 468.090 - 468.140, 468.996, 468B.220, 468B.450 & 783.992
Hist.: DEQ 15-1990, f. & cert. ef. 3-30-90; DEQ 21-1992, f. & cert. ef. 8-11-92; DEQ 9-2000, f. & cert. ef. 7-21-00; DEQ 1-2003, f. & cert. ef. 1-31-03; Renumbered from 340-012-0049, DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05; DEQ 4-2006, f. 3-29-06, cert. ef. 3-31-06
340-012-0160
Department Discretion Regarding Penalty Assessment
(1) In addition to that described in section (3) below, the department has the discretion to increase a base penalty determined under OAR 340-012-0140 to that derived using the next highest penalty matrix. Factors that may be taken into consideration in increasing a base penalty include the respondent's compliance history, the likelihood of future violations, the degree of environmental or human health impact, the deterrence impact and other similar factors.
(2) In determining a civil penalty, the director may reduce any penalty by any amount the director deems appropriate if the respondent has voluntarily disclosed the violation to the department. In deciding whether a violation has been voluntarily disclosed, the director may take into account any considerations the director deems appropriate, including whether the violation was:
(a) Discovered through an environmental auditing program or a systematic compliance program;
(b) Voluntarily discovered;
(c) Promptly disclosed;
(d) Discovered and disclosed independent of the government or a third party;
(e) Corrected and remedied;
(f) Prevented from recurring;
(g) Not repeated;
(h) Not the cause of significant harm to human health or the environment; and
(i) Disclosed and corrected in a cooperative manner.
(3) Regardless of any other penalty amount listed in this division, the director has the discretion to increase the penalty to $10,000 per violation per day of violation based upon the facts and circumstances of the individual case.
(4) For violations of a department-issued permit with more than one permittee, the department may issue separate civil penalties to each permittee, given compliance objectives, including the level of deterrence needed.
Stat. Auth.: ORS 468.020, 468.130
Stats. Implemented: ORS 183.745, 459.376, 459.995, 465.900, 465.992, 466.990, 466.994, 468.090-468.140, 468.996, 468B.450
Hist.: DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05
340-012-0162
Inability to Pay the Penalty
(1) After a penalty is assessed, the department may reduce a penalty based on the respondent's inability to pay the full penalty amount. In order to do so, the department must receive information regarding the respondent's financial condition on a form required by the department along with any additional documentation requested by the department.
(2) If the respondent is currently unable to pay the full penalty amount, the first option is to place the respondent on a payment schedule with interest. The department may reduce the penalty only after determining that the respondent is unable to meet a payment schedule of a length the department determines is reasonable.
(3) In considering the respondent's ability to pay a civil penalty, the department may use the U.S. Environmental Protection Agency's ABEL, INDIPAY or MUNIPAY computer models to evaluate a respondent's financial condition or ability to pay the full civil penalty amount. Upon request of the respondent, the department will provide the respondent the name of the version of the model used and respond to any reasonable request for information about the content or operation of the model;
(4) The department, at its discretion, may refuse to reduce an assessed civil penalty. In exercising this discretion, the department may take into consideration any factor related to the violations or the respondent, including but not limited to the respondent's mental state, whether the respondent has corrected the violation or taken efforts to ensure the violation will not be repeated, whether the respondent's financial condition poses a serious concern regarding the respondent's ability to remain in compliance, the respondent's future ability to pay, and the respondent's real property or other assets.
Stat. Auth.: ORS 468.020, 468.130
Stats. Implemented: ORS 454.635, 454.645, 459.376, 459.995, 465.900, 465.992, 466.990-466.994, 468.090-468.140, 468B.220-468B.450
Hist.: DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05
340-012-0165
Stipulated Penalties
Nothing in OAR chapter 340, division 12 affects the ability of the commission or department to include stipulated penalties in a Mutual Agreement and Order, Consent Order, Consent Judgment or any other order or agreement issued under ORS Chapters 183, 454, 459, 465, 466, 467, 468, 468A, or 468B.
Stat. Auth.: ORS 454.625, 459.995, 468.020 & 468.996
Stats. Implemented: ORS 183.090 & 183.415
Hist.: DEQ 4-1989, f. & cert. ef. 3-14-89; DEQ 15-1990, f. & cert. ef. 3-30-90; DEQ 21-1992, f. & cert. ef. 8-11-92; DEQ 19-1998, f. & cert. ef. 10-12-98; Renumbered from 340-012-0048, DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05
340-012-0170
Compromise or Settlement of Civil Penalty by Department
(1) Any time after service of the formal enforcement action, the department may compromise or settle a civil penalty at any amount that the department deems appropriate.
(2) In determining whether a penalty should be compromised or settled, the department may take into account the following:
(a) New information obtained through further investigation or provided by the respondent that relates to the penalty determination factors contained in OAR 340-012-0045;
(b) The effect of compromise or settlement on deterrence;
(c) Whether the respondent has or is willing to employ extraordinary means to correct the violation or maintain compliance;
(d) Whether the respondent has had any previous penalties which have been compromised or settled;
(e) Whether the respondent has the ability to pay the civil penalty as determined by OAR 340-012-0160;
(f) Whether the compromise or settlement would be consistent with the department's goal of protecting human health and the environment; and
(g) The relative strength or weakness of the department's evidence.
Stat. Auth.: ORS 459.995, 466, 467, 468.020 & 468.996
Stats. Implemented: ORS 183.090 & 183.415
Hist.: DEQ 78, f. 9-6-74, ef. 9-25-74; DEQ 22-1984, f. & ef. 11-8-84; DEQ 22-1988, f. & cert. ef. 9-14-88; Renumbered from 340-12-075; DEQ 4-1989, f. & cert. ef. 3-14-89; DEQ 15-1990, f. & cert. ef. 3-30-90; DEQ 21-1992, f. & cert. ef. 8-11-92; Renumbered from 340-012-0047, DEQ 4-2005, f. 5-13-05, cert. ef. 6-1-05
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