OAR 340-012-0145: Determination of Aggravating or Mitigating Factors

(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).