OAR 345-029-0560: Calculation of Civil Penalty Amount

(1) The Director must determine the base penalty amount for a violation based on the classification and severity of the violation, subject to the following: (a) The classification of violation is as provided in OAR 345-029-0530; (b) No severity determination is needed for Class III violations. In making a severity determination for Class I or Class II violations, the Director will consider all reasonably available information, including, but not limited to: the degree of deviation from applicable statutes, rules, standards, permits or orders; the extent of actual effects of the violation; the concentration, quantity, or radioactivity of the materials involved; the availability of potential pathways of exposure; and the duration of the violation. (A) The severity of the violation is major if the Director finds the violation has caused, or has the potential to cause, a significant adverse impact on public health and safety, or the environment. In making this finding, the Director may describe any of the factors described in subsection (1)(b) to be conclusive. (B) The severity of a violation is moderate if the Director finds the violation has caused, or has the potential to cause no more than a minimal adverse impact on public health and safety or the environment, but could have the potential to cause a significant adverse impact on public health and safety or the environment if the physical conditions of the disposal did not limit pathways of exposure to human health or the environment. (C) The severity of a violation is minor if the Director finds the violation has caused, or has the potential to cause, no more than a minimal adverse impact on public health and safety or the environment. (c) The base penalty for each violation is: (A) For Class I violations: (i) $10,000 for a major violation; (ii) $5,000 for a moderate violation; (iii) $1,000 for a minor violation; (B) For Class II violations; (i) $5,000 for a major violation; (ii) $2,500 for a moderate violation; (iii) $500 for a minor violation; and (C) For Class III violations, $500; and (d) For the purposes of determining the base penalty amount, violations of more than one law, rule, permit, or order that result from the same actions, conditions, or circumstances, will be treated as a single violation. The base penalty amount will be based on the highest classification and severity applicable to any of the violations. (2) The Director may adjust the base penalty amount to account for aggravating or mitigating factors by multiplying the base penalty by one or more of the following factors: (a) 5.0, if the violation was willful or was the result of reckless behavior; (b) 2.5, if the responsible party has a history of similar or related violations. Similar or related violations are violations that the Director determines to have resulted from the same or similar underlying actions, conditions, or circumstances as the violations addressed in the Notice of Enforcement Action, regardless of whether the Director or Council ever pursued an enforcement action for the previous violations; (c) 2.5, if the corrective actions taken or proposed to be taken by the responsible party are not sufficient to reverse the conditions or circumstances that constituted the violation; (d) 0.75, if the responsible party corrected the violation within the time required to respond to the Pre-Enforcement Notice and the responsible party has submitted a plan adequate to minimize the possibility of recurrence; and (e) 0.8, if the responsible party voluntarily reported the conditions or circumstances of the violation in accordance with OAR 345-029-0510. In determining whether the responsible party voluntarily reported the conditions or circumstances, the Director may consider if the conditions or circumstances were discovered and reported independently from any investigation or inquiry of the Director or Council, or whether the conditions or circumstances were reported as a result of a compliance audit. (3) The Director may assess the adjusted penalty amount for each occurrence of a violation, or for each day of an ongoing violation, except that the total amount of penalty assessed may not exceed: (a) $5,000,000 for a moderate violation; or (b) $25,000 for a minor violation. (4) In addition to the amount of penalty calculated under sections (1) through (3) of this rule, the Director may assess an additional amount for Economic Benefit. Economic Benefit is the approximate dollar value of the benefit gained and the costs avoided or delayed (without duplication) as a result of the responsible party’s noncompliance. Economic Benefit will be determined using the U.S. Environmental Protection Agency's “BEN” computer model, subject to the following: (a) The Director may make, for use in the model, a reasonable estimate of the benefits gained and the costs avoided or delayed by the respondent. (b) Upon request of the responsible party, the Director 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. (c) The model’s standard values for income tax rates, inflation rate and discount rate are presumed to apply unless the responsible party can demonstrate that the standard value does not reflect the responsible party’s actual circumstance. (d) The Director may assume the economic benefit is zero if the Director makes a reasonable determination that the economic benefit is de minimis or if there is insufficient information to make an estimate under this section. (5) Notwithstanding any provision of this rule, the total amount of civil penalty assessed may not exceed the maximum civil penalty allowed by ORS 469.992.