OAR 340-012-0160: DEQ Discretion Regarding Penalty Assessment

(1) In addition to the authority described in section (4) below, DEQ has the discretion to increase a base penalty determined under OAR 340-012-0140 to that derived using the next highest penalty matrix. Factors that may be taken into consideration in increasing a base penalty include the respondent's compliance history, the likelihood of future violations, the degree of environmental or human health impact, the deterrence impact and other similar factors. (2) In determining a civil penalty, the director may reduce any penalty by any amount the director deems appropriate if the respondent has voluntarily disclosed the violation to DEQ. In deciding whether a violation has been voluntarily disclosed, the director may take into account any considerations the director deems appropriate, including whether the violation was: (a) Discovered through an environmental auditing program or a systematic compliance program; (b) Voluntarily discovered; (c) Promptly disclosed; (d) Discovered and disclosed independent of the government or a third party; (e) Corrected and remedied; (f) Prevented from recurring; (g) Not repeated; (h) Not the cause of significant harm to human health or the environment; and (i) Disclosed and corrected in a cooperative manner. (3) For the violation of spilling oil or hazardous materials into waters of the state, if the respondent exceeds relevant DEQ regulations pertaining to spill preparation and takes all other reasonably expected precautions to prevent spills and be prepared for spill response, DEQ may reduce the penalty for the spill by 10%. Depending on circumstances, such precautions may include, without limitation, employee safety training, company policies designed to reduce spill risks, availability of spill response equipment or staff, or use of alternative non-toxic oils. (4) Regardless of any other penalty amount listed in this division, the director has the discretion to increase the penalty to $25,000 per violation per day of violation based upon the facts and circumstances of the individual case. (5) DEQ may issue separate civil penalties to each potentially liable person for any violation or violations, regardless of whether the violations arise out of the same facts or circumstances, given compliance objectives, including the level of deterrence needed.