Compromise or Settlement of Civil Penalty by DEQ
(1)DEQ may compromise or settle a civil penalty assessed in a formal enforcement action at any amount that DEQ deems appropriate. In determining whether a penalty should be compromised or settled, DEQ 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 (Civil Penalty Determination Procedure);
(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 340-012-0162 (Inability to Pay the Penalty);
(f)Whether the compromise or settlement would be consistent with DEQ’s goal of protecting human health and the environment; and
(g)The relative strength or weakness of DEQ’s evidence.
(2)Expedited Enforcement Offers:
(a)DEQ may pursue informal disposition of any alleged violation by making an expedited enforcement offer.
(b)The decision as to whether to make an expedited enforcement offer with respect to any alleged violation is within DEQ’s sole discretion, except as otherwise provided in this section (2).
(c)In determining whether to make an expedited enforcement offer, DEQ must consider the amount of the economic benefit gained by the alleged violator as a result of the noncompliance; whether the alleged violator has been the subject of a formal enforcement action or been issued a warning letter or pre-enforcement notice for the same or similar violations; whether the alleged violation is isolated or ongoing; and the mental state of the alleged violator.
(d)DEQ will not make an expedited enforcement offer to settle a Class I violation that has been repeated within the previous three years or to settle a violation that would be a major magnitude violation under OAR 340-012-0130 (Determination of Violation Magnitude)(3) regardless of whether a selected magnitude under 340-012-0135 (Selected Magnitude Categories) applies.
(e)The penalty amount for an alleged violation cited in an expedited enforcement offer will be 40% of the moderate base penalty listed in OAR 340-012-0140 (Determination of Base Penalty) under the applicable matrix and the applicable classification.
(f)Participation in the expedited enforcement program is voluntary. An alleged violator to whom DEQ makes an expedited enforcement offer is under no obligation to accept the offer.
(g)A person to whom an expedited enforcement offer is made has 30 calendar days from the date of the offer to accept the offer by paying the total amount stipulated in the expedited enforcement offer, or by making a payment toward the total amount if DEQ has approved a payment plan. The expedited enforcement offer payment and acceptance are deemed submitted when received by DEQ.
(h)By submitting payment to DEQ of the total amount stipulated in the expedited enforcement offer or a payment toward the total amount if DEQ has approved a payment plan, the alleged violator accepts the expedited enforcement offer, consents to the issuance of a final order of the commission which may include a compliance schedule, and agrees to waive any right to appeal or seek administrative or judicial review of the expedited enforcement offer, the final order, or any violation cited therein.
(i)Expedited enforcement offers incorporated into final orders of the commission will be treated as prior significant actions in accordance with OAR 340-012-0145 (Determination of Aggravating or Mitigating Factors).
(j)DEQ may initiate a formal enforcement action for any violation not settled by acceptance of the expedited enforcement offer.
Rule 340-012-0170 — Compromise or Settlement of Civil Penalty by DEQ,