603-077-0180 Civil Penalty Determination Procedure (1) When determining the amount of civil penalty to be assessed for any violation, the Director or authorized representative shall apply the following procedures: (a) Determine the class and the magnitude of each violation: (A) The class of a violation is determined by consulting OAR 603-077-0195; (B) The magnitude of the violation shall be moderate unless: (i) If the Department finds that the violation had a significant adverse impact on the environment, or posed a significant threat to public health, a determination of major magnitude shall be made. In making a determination of major magnitude, the Department shall consider all available applicable information including such factors as: The degree of deviation from applicable statutes, rules, standards, permits or orders, and the extent of the effects of the violation. In making this finding, the Department may consider any single factor to be conclusive for the purpose of making a major magnitude determination; (ii) If the Department finds that the violation had no potential for or actual adverse impact on the environment, nor posed any threat to public health, or other environmental receptors, a determination of minor magnitude shall be made. In making a determination of minor magnitude, the Department shall consider all available applicable information including such factors as: The degree of deviation from the applicable statutes, rules, standards, permits or orders, and the extent of the effects of the violation. In making this finding, the Department may consider any single factor to be conclusive for the purpose of making a minor magnitude determination. (b) Choose the appropriate base penalty (BP) established by the matrices of OAR 603-077-0177 after determining the class and magnitude of each violation; (c) Starting with the base penalty, determine the amount of penalty through application of the formula: BP + ((.1 x BP) (P + H + O + R + C)) + EB where: (A) "P" is whether the Respondent has any prior significant actions relating to statutes, rules, orders and permits pertaining to environmental quality or pollution control. The values for "P" and the finding which supports each are as follows: (i) 0 if no prior significant actions or there is insufficient information on which to base a finding; (ii) 1 if the prior significant action is one Class Two or two Class Threes; (iii) 2 if the prior significant action(s) is one Class One or equivalent; (iv) 3 if the prior significant actions are two Class One or equivalents; (v) 4 if the prior significant actions are three Class Ones or equivalents; (vi) 5 if the prior significant actions are four Class Ones or equivalents; (vii) 6 if the prior significant actions are five Class Ones or equivalents; (viii) 7 if the prior significant actions are six Class Ones or equivalents; (ix) 8 if the prior significant actions are seven Class Ones or equivalents; (x) 9 if the prior significant actions are eight Class Ones or equivalents; (xi) 10 if the prior significant actions are nine Class Ones or equivalents; (xii) In determining the appropriate value for prior significant actions as listed above, the Department shall reduce the appropriate factor by: (I) A value of 2 if the date of issuance of all the prior significant actions are greater than three years old but less than five years old; (II) A value of 4 if the date of issuance of all the prior significant actions are greater than five years old; (III) In making the above reductions, no finding shall be less than zero. (xiii) Any prior significant action which is greater than ten years old shall not be included in the above determination. (B) "H" is past history of the Respondent in taking all feasible steps or procedures necessary or appropriate to correct any violation cited in any prior significant actions. In no case shall the combination of the "P" factor and the "H" factor be a value less than zero. In such cases where the sum of the "P" and "H" values is a negative numeral the finding and determination for the combination of these two factors shall be zero. The values for "H" and the finding which supports each are as follows: (i) -2 if Respondent took all feasible steps to correct each violation contained in any prior significant action; (ii) 0 if there is no prior history or if there is insufficient information on which to base a finding. (C) "O" is whether the violation was repeated or continuous. The values for "O" and the finding which supports each are as follows: (i) 0 if the violation existed for one day or less and did not recur on the same day; (ii) 2 if the violation existed for more than one day or if the violation recurred on the same day. (iii) 2 if Respondent took some but not all feasible steps to correct each violation contained in any prior significant action. (iv) 4 if Respondent took no steps to correct each violation contained in any prior significant action. (D) "R" is whether the violation resulted from an unavoidable accident, or a negligent, intentional or flagrant act of the Respondent. The values for "R" and the finding which supports each are as follows: (i) 0 if an unavoidable accident, or if there is insufficient information to make a finding; (ii) 2 if negligent; (iii) 6 if intentional; or (iv) 10 if flagrant. (E) "C" is the Respondent's cooperativeness and efforts to correct the violation. The values for "C" and the finding which supports each are as follows: (i) -2 if Respondent was cooperative and took reasonable efforts to correct the violation or minimize the effects of the violation; (ii) 0 if there is insufficient information to make a finding, or if the violation or the effects of the violation could not be corrected; (iii) 2 if Respondent was uncooperative and did not take reasonable efforts to correct the violation or minimize the effects of the violation. (F) "EB" is the approximated dollar sum of the economic benefit that the Respondent gained through noncompliance. The Department may increase the penalty by the approximated dollar sum of the economic benefit, provided that the sum penalty does not exceed the maximum allowed for the violation by rule or statute. After determining the base penalty and applying the civil formula penalty above to determine the gravity and magnitude based portion of the civil penalty, "EB" is to be determined as follows: (i) Add to the formula the approximate dollar sum of the economic benefit gained through noncompliance, as calculated by determining both avoided costs and the benefits obtained through any delayed costs, where applicable; (ii) The Department need not calculate nor address the economic benefit component of the civil penalty when the benefit obtained is deminimis. (2) In addition to the factors listed in section (1) of this rule, the Director may consider any other relevant rule of the Department and shall state the effect the consideration had on the penalty. On review, the Department shall consider the factors contained in section (1) of this rule and any other relevant rule of the Department. (3) The Department may reduce any penalty based on the Respondent's inability to pay the full penalty amount. If the Respondent seeks to reduce the penalty, the Respondent has the responsibility of providing to the Department documentary evidence concerning Respondent's inability to pay the full penalty amount: (a) When the Respondent is currently unable to pay the full amount, the first option should be to place the Respondent on a payment schedule with interest on the unpaid balance for any delayed payments. The Department may reduce the penalty only after determining that the Respondent is unable to meet a long term payment schedule; (b) In appropriate circumstances, the Department may impose a penalty that may result in a Respondent going out of business. Such circumstances may include situations where the violation is intentional or flagrant or situations where the Respondent's financial condition poses a serious concern regarding the ability or incentive to remain in compliance. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 468A.585 History: DOA 22-2004, f. & cert. ef. 8-10-04 DOA 18-2003, f. & cert. ef. 5-15-03 DOA 2-1998, f. & cert. ef. 3-3-98