OAR 340-012-0150: Determination of Economic Benefit

(1) The Economic Benefit (EB) is the approximate dollar value of the benefit gained and the costs avoided or delayed (without duplication) as a result of the respondent's noncompliance. Except as provided in (3), the EB will be determined using the U.S. Environmental Protection Agency's BEN computer model. DEQ may make, for use in the model, a reasonable estimate of the benefits gained and the costs avoided or delayed by the respondent. (2) Upon request of the respondent, DEQ 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. The model’s standard values for income tax rates, inflation rate and discount rate are presumed to apply to all respondents unless a specific respondent can demonstrate that the standard value does not reflect the respondent’s actual circumstance. (3) For violations of the Clean Fuels Program in OAR Chapter 340, division 253, DEQ will determine economic benefit according to subsections (a),(b), or (c), with interest and other considerations as needed to properly capture the full economic benefit of the violation. (a) the actual purchase or sale price of the credits, or the implied value of the credits in a fuel transaction, when a transaction has been completed, if DEQ has sufficient information to determine it; or (b) the average price of credits purchased or sold in the Clean Fuels Program market as published by DEQ for the time period relevant to the violation; or (c) the Credit Clearance Market maximum credit price as calculated under OAR 340-253-1040, where a transaction has not been completed or DEQ has insufficient information to determine the price of the credits. (4) DEQ need not calculate EB if DEQ makes a reasonable determination that the EB is de minimis or if there is insufficient information on which to make an estimate under this rule. (5) DEQ may assess EB whether or not it assesses any other portion of the civil penalty using the formula in OAR 340-012-0045. (6) DEQ's calculation of EB may not result in a civil penalty for a violation that exceeds the maximum civil penalty allowed by rule or statute. However, when a violation has occurred or been repeated for more than one day, DEQ may treat the violation as extending over at least as many days as necessary to recover the economic benefit of the violation.