Current through Register Vol. 63, No. 12, December 1, 2024
(1) The Director must determine the base
penalty amount for a violation based on the classification and severity of the
violation, subject to the following:
(a) The
classification of violation is as provided in OAR
345-029-0530;
(b) No severity determination is needed for
Class III violations. In making a severity determination for Class I or Class
II violations, the Director will consider all reasonably available information,
including, but not limited to: the degree of deviation from applicable
statutes, rules, standards, permits or orders; the extent of actual effects of
the violation; the concentration, quantity, or radioactivity of the materials
involved; the availability of potential pathways of exposure; and the duration
of the violation.
(A) The severity of the
violation is major if the Director finds the violation has caused, or has the
potential to cause, a significant adverse impact on public health and safety,
or the environment. In making this finding, the Director may describe any of
the factors described in subsection (1)(b) to be conclusive.
(B) The severity of a violation is moderate
if the Director finds the violation has caused, or has the potential to cause
no more than a minimal adverse impact on public health and safety or the
environment, but could have the potential to cause a significant adverse impact
on public health and safety or the environment if the physical conditions of
the disposal did not limit pathways of exposure to human health or the
environment.
(C) The severity of a
violation is minor if the Director finds the violation has caused, or has the
potential to cause, no more than a minimal adverse impact on public health and
safety or the environment.
(c) The base penalty for each violation is:
(A) For Class I violations:
(i) $10,000 for a major violation;
(ii) $5,000 for a moderate
violation;
(iii) $1,000 for a minor
violation;
(B) For Class
II violations;
(i) $5,000 for a major
violation;
(ii) $2,500 for a
moderate violation;
(iii) $500 for
a minor violation; and
(C) For Class III violations, $500;
and
(d) For the purposes
of determining the base penalty amount, violations of more than one law, rule,
permit, or order that result from the same actions, conditions, or
circumstances, will be treated as a single violation. The base penalty amount
will be based on the highest classification and severity applicable to any of
the violations.
(2) The
Director may adjust the base penalty amount to account for aggravating or
mitigating factors by multiplying the base penalty by one or more of the
following factors:
(a) 5.0, if the violation
was willful or was the result of reckless behavior;
(b) 2.5, if the responsible party has a
history of similar or related violations. Similar or related violations are
violations that the Director determines to have resulted from the same or
similar underlying actions, conditions, or circumstances as the violations
addressed in the Notice of Enforcement Action, regardless of whether the
Director or Council ever pursued an enforcement action for the previous
violations;
(c) 2.5, if the
corrective actions taken or proposed to be taken by the responsible party are
not sufficient to reverse the conditions or circumstances that constituted the
violation;
(d) 0.75, if the
responsible party corrected the violation within the time required to respond
to the Pre-Enforcement Notice and the responsible party has submitted a plan
adequate to minimize the possibility of recurrence; and
(e) 0.8, if the responsible party voluntarily
reported the conditions or circumstances of the violation in accordance with
OAR 345-029-0510. In determining
whether the responsible party voluntarily reported the conditions or
circumstances, the Director may consider if the conditions or circumstances
were discovered and reported independently from any investigation or inquiry of
the Director or Council, or whether the conditions or circumstances were
reported as a result of a compliance audit.
(3) The Director may assess the adjusted
penalty amount for each occurrence of a violation, or for each day of an
ongoing violation, except that the total amount of penalty assessed may not
exceed:
(a) $5,000,000 for a moderate
violation; or
(b) $25,000 for a
minor violation.
(4) In
addition to the amount of penalty calculated under sections (1) through (3) of
this rule, the Director may assess an additional amount for Economic Benefit.
Economic Benefit is the approximate dollar value of the benefit gained and the
costs avoided or delayed (without duplication) as a result of the responsible
party's noncompliance. Economic Benefit will be determined using the U.S.
Environmental Protection Agency's "BEN" computer model, subject to the
following:
(a) The Director may make, for use
in the model, a reasonable estimate of the benefits gained and the costs
avoided or delayed by the respondent.
(b) Upon request of the responsible party,
the Director 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.
(c) The model's standard
values for income tax rates, inflation rate and discount rate are presumed to
apply unless the responsible party can demonstrate that the standard value does
not reflect the responsible party's actual circumstance.
(d) The Director may assume the economic
benefit is zero if the Director makes a reasonable determination that the
economic benefit is de minimis or if there is insufficient information to make
an estimate under this section.
(5) Notwithstanding any provision of this
rule, the total amount of civil penalty assessed may not exceed the maximum
civil penalty allowed by ORS
469.992.
Statutory/Other Authority: ORS
469.470
Statutes/Other Implemented: ORS
469.085 &
469.992
