Current through Register Vol. 63, No. 3, March 1, 2024
(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) "P" is whether the respondent has any
prior significant actions (PSAs). A violation becomes a PSA on the date the
first formal enforcement action (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 PSAs included one Class II
violation or two Class III violations; or
(C) 2 if the PSAs 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 final value of "P" will be 10.
(d) In determining the value of "P," DEQ
will:
(A) Reduce the value of "P" by:
(i) 2 if all the FEAs in which PSAs were
cited were issued more than three years before the date the current violation
occurred.
(ii) 4 if all the FEAs 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 respondent 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. The values for "H" and the finding that supports each are as
follows:
(a) -2 if the respondent corrected
all prior 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) or (b).
(d) 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 violation can be repeated independently on the same day, thus
multiple occurrences may occur within one day. Each repeated occurrence of the
same violation and each day of a violation with a duration of more than one day
is a separate occurrence when determining the "O" factor. Each separate
violation is also a separate occurrence when determining the "O" factor. The
values for "O" and the finding that supports each are as follows:
(a) 0 if there was only one occurrence of the
violation, or if there is insufficient information on which to base a finding
under paragraphs (4)(b) through (4)(d).
(b) 2 if there were more than one but less
than seven occurrences of the violation.
(c) 3 if there were from seven to 28
occurrences of the violation.
(d) 4
if there were more than 28 occurrences of the violation.
(e) DEQ may, at its discretion, assess
separate penalties for each occurrence of a violation. If DEQ does so, the O
factor for each affected violation will be set at 0. If DEQ assesses one
penalty for multiple occurrences, the penalty will be based on the highest
classification and magnitude applicable to any of the occurrences.
(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. 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)(b) through (5)(d).
(b) 2 if the respondent had constructive
knowledge (reasonably should have known) of the requirement.
(c) 4 if the respondent's conduct was
negligent.
(d) 8 if the
respondent's conduct was reckless or the respondent acted or failed to act
intentionally with actual knowledge of the requirement.
(e) 10 if respondent acted
flagrantly.
(6) "C" is
the respondent's efforts to correct or mitigate the violation. The values for
"C" and the finding that supports each are as follows:
(a) -5 if the respondent made extraordinary
efforts to correct the violation or to minimize the effects of the violation,
and made extraordinary efforts to ensure the violation would not be
repeated.
(b) -4 if the respondent
made extraordinary efforts to ensure that the violation would not be
repeated.
(c) -3 if the respondent
made reasonable efforts to correct the violation, or took reasonable
affirmative efforts to minimize the effects of the violation.
(d) -2 if the respondent eventually made some
efforts to correct the violation, or to minimize the effects of the
violation.
(e) -1 if the respondent
made reasonable efforts to ensure that the violation would not be
repeated.
(f) 0 if there is
insufficient information to make a finding under paragraphs (6)(a) through
(6)(e), or (6)(g) or if the violation or the effects of the violation could not
be corrected or minimized.
(g) 2 if
the respondent did not address the violation as described in paragraphs (6)(a)
through (6)(e) and the facts do not support a finding under paragraph
(6)(f).
Statutory/Other Authority: ORS
468.020 &
468.130
Statutes/Other Implemented: ORS
459.376,
459.995,
465.900,
465.992,
466.990
- 994, 468.090 - 140 & 468B.450
