OAR 340-012-0155
Additional or Alternate Civil Penalties


(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 (Placing offensive substances in waters, on highways or other property), 459.205 (Permit required)-459.426 (Notice to customers), 459.705 (Definitions for ORS 459.705 to 459.790)459.790 (Exceptions to ORS 459.705 to 459.785), 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 (Permit required)459.426 (Notice to customers), 459.705 (Definitions for ORS 459.705 to 459.790)459.790 (Exceptions to ORS 459.705 to 459.785), 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 (Civil Penalty Determination Procedure), then the base penalty is determined according to OAR 340-012-0140 (Determination of Base Penalty).

(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 (Definitions)(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 (Civil Penalty Determination Procedure) 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 (Determination of Base Penalty)(2) and the civil penalty formula contained in 340-012-0045 (Civil Penalty Determination Procedure), 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 (Willful or negligent discharge of oil) to 468B.460 (Rules), 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 (Damage suits for unlawful killing of wildlife) 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 (Damage suits for unlawful killing of wildlife) 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 (Water quality permit).

(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 (Prohibition on sale or distribution of cleaning agents containing phosphorous).

(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 (Definitions for ORS 465.003 to 465.034) to 465.034 (Application 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 (Permitted lead-acid battery disposal) to 459.426 (Notice to customers). 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 (Notice to customers) 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 (“Opportunity to recycle” defined).

(3)

DEQ may assess the civil penalties below in lieu of civil penalties calculated pursuant to OAR 340-012-0045 (Civil Penalty Determination Procedure):

(a)

DEQ will assess a Field Penalty as specified under OAR 340-150-0250 (Expedited Enforcement Process) 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 (Compromise or Settlement of Civil Penalty by DEQ)(2).

Source: Rule 340-012-0155 — Additional or Alternate Civil Penalties, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=340-012-0155.

340‑012‑0026
Policy
340‑012‑0028
Scope of Applicability
340‑012‑0030
Definitions
340‑012‑0038
Warning Letters, Pre-Enforcement Notices, and Notices of Permit Violation
340‑012‑0041
Formal Enforcement Actions
340‑012‑0045
Civil Penalty Determination Procedure
340‑012‑0053
Classification of Violations that Apply to all Programs
340‑012‑0054
Air Quality Classification of Violations
340‑012‑0055
Water Quality Classification of Violations
340‑012‑0060
Onsite Sewage Disposal Classification of Violations
340‑012‑0065
Solid Waste Management Classification of Violations
340‑012‑0066
Solid Waste Tire Management Classification of Violations
340‑012‑0067
Underground Storage Tank (UST) Classification of Violations
340‑012‑0068
Hazardous Waste Management and Disposal Classification of Violations
340‑012‑0071
Polychlorinated Biphenyl (PCB) Classification of Violations
340‑012‑0072
Used Oil Management Classification of Violations
340‑012‑0073
Environmental Cleanup Classification of Violations
340‑012‑0074
Underground Storage Tank (UST) Cleanup Classification of Violations
340‑012‑0079
Heating Oil Tank (HOT) Classification of Violations
340‑012‑0081
Oil and Hazardous Material Spill and Release Classification of Violations
340‑012‑0082
Contingency Planning Classification of Violations
340‑012‑0083
Ballast Water Management Classification of Violations
340‑012‑0097
Dry Cleaning Classification of Violations
340‑012‑0130
Determination of Violation Magnitude
340‑012‑0135
Selected Magnitude Categories
340‑012‑0140
Determination of Base Penalty
340‑012‑0145
Determination of Aggravating or Mitigating Factors
340‑012‑0150
Determination of Economic Benefit
340‑012‑0155
Additional or Alternate Civil Penalties
340‑012‑0160
DEQ Discretion Regarding Penalty Assessment
340‑012‑0162
Inability to Pay the Penalty
340‑012‑0165
Stipulated Penalties
340‑012‑0170
Compromise or Settlement of Civil Penalty by DEQ
Last Updated

Jun. 24, 2021

Rule 340-012-0155’s source at or​.us