Oregon Administrative Rules
Chapter 340 - DEPARTMENT OF ENVIRONMENTAL QUALITY
Division 12 - ENFORCEMENT PROCEDURE AND CIVIL PENALTIES
Section 340-012-0155 - Additional or Alternate Civil Penalties
Universal Citation: OR Admin Rules 340-012-0155
Current through Register Vol. 63, No. 3, March 1, 2024
(1) DEQ may assess additional civil penalties for the following violations as specified below:
(a) DEQ may assess a civil penalty of up to
$250,000 to any person who intentionally or recklessly violates any provisions
of ORS 164.785, 459.205-459.426, 459.705-459.790, Chapters 465, 466, 467, 468,
or 468A or 468B or any rule or standard or order of the commission adopted or
issued pursuant to 459.205-459.426, 459.705-;459.790, Chapters 465, 466, 467,
468, 468A, or 468B, that results in or creates the imminent likelihood for an
extreme hazard to public health or that causes extensive damage to the
environment. When determining the civil penalty to be assessed under this
subsection, the director will use the procedures set out below:
(A) The following base penalties apply:
(i) $100,000 if the violation was caused
intentionally;
(ii) $150,000 if
the violation was caused recklessly;
(iii) $200,000 if the violation was caused
flagrantly.
(B) The
civil penalty is calculated using the following formula: BP + [(.1 x BP) (P + H
+ O + C)] + EB.
(b) Any
person who intentionally or negligently causes or permits the discharge of oil
or hazardous materials into waters of the state or intentionally or negligently
fails to clean up a spill or release of oil or hazardous materials into waters
of the state will incur a civil penalty not to exceed $100,000 dollars for each
violation. The amount of the penalty is determined as follows:
(A) The class and magnitude of the violation
are determined according to OAR
340-012-0045,
then the base penalty is determined according to OAR
340-012-0140.
(B) The multiplier for the base
penalty is determined by adding the following values:
(i) 2 points if the violation was caused
negligently; or 3 points if the violation was caused recklessly; or 4 points if
the violation was caused intentionally with actual knowledge that a violation
would occur; and
(ii) 1 point if
the oil or hazardous material is or contains any constituent listed as a
"hazardous substance" in 40 CFR 302; or 2 points if the oil or hazardous
material is or contains any constituent listed as an "extremely hazardous
substance" under 40 CFR 355; and
(iii) 2 points if the volume of the oil or
hazardous material spilled, lost to the environment, or not cleaned up exceeds
1,000 gallons; and
(iv) 1 point if
the violation impacted an area of particular environmental value where oil or
hazardous materials could pose a greater threat than in other non-sensitive
areas, for example, sensitive environments such as those listed in OAR
340-122-0115(50),
drinking water sources, and cultural sites.
(C) The base penalty from paragraph (A) is
multiplied by the sum of the points from paragraph (B) to determine the
adjusted base penalty. The civil penalty formula in OAR
340-012-0045
is applied using the adjusted base penalty for the BP factor.
(c) 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 applicable
penalty matrix in
340-012-0140(2)
and the civil penalty formula contained in
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) 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 ORS
496.705 for the destruction, due to contamination of food or water supply by
such waste or substance, of any of the wildlife referred to in ORS 496.705 that
are property of the state.
(e) DEQ
may assess a civil penalty of $500 to 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.
(2) Civil penalties for certain violations are subject to the following maximums in lieu of the maximum daily penalty provided in OAR 340-012-160(4):
(a) DEQ may
assess a civil penalty of up to $1,000 for each day of violation to any person
that fails to comply with the prohibitions on the sale or distribution of
cleaning agents containing phosphorus in ORS 468B.130.
(b) DEQ may assess a civil penalty of up to
$500 for each violation of each day to any person that fails to comply with
Toxics Use Reduction and Hazardous Waste Reduction Act requirements of ORS
465.003 to 465.034.
(c) DEQ may
assess a civil penalty of up to $500 for each violation of ORS 459.420 to
459.426. Each battery that is improperly disposed of is a separate violation,
and each day an establishment fails to post the notice required by ORS 459.426
is a separate violation.
(d) DEQ
may assess a civil penalty of up to $500 for each violation of the requirement
to provide the opportunity to recycle as required by ORS 459A.005.
(3) DEQ may assess the civil penalties below in lieu of civil penalties calculated pursuant to OAR 340-012-0045:
(a) DEQ will assess a Field Penalty as
specified under OAR
340-150-0250
unless DEQ determines that an owner, operator or permittee is not eligible for
the Field Penalty.
(b) DEQ may
assess Expedited Enforcement Offers as specified under OAR
340-012-0170(2).
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
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