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, 459.205-459.426, 459.705–459.790, Chapters 465, 466, 467, 468, or 468A or 468B or any rule or standard or order of the commission adopted or issued pursuant to 459.205–459.426, 459.705–459.790, 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, then the base penalty is determined according to OAR 340-012-0140. (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(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 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(2) and the civil penalty formula contained in 340-012-0045, 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 to 468B.460, 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 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 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. (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. (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 to 465.034. (c) DEQ may assess a civil penalty of up to $500 for each violation of ORS 459.420 to 459.426. 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 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. (3) DEQ may assess the civil penalties below in lieu of civil penalties calculated pursuant to OAR 340-012-0045: (a) DEQ will assess a Field Penalty as specified under OAR 340-150-0250 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(2). (4) DEQ may assess a civil penalty of up to $500 for each violation of ORS 459.247(1)(f). Each covered electronic device that is disposed of improperly is a separate violation.