Or. Admin. Code § 603-074-0070

Current through Register Vol. 63, No. 10, October 1, 2024

Section 603-074-0070 - Notice of Civil Penalty Assessment

(1) A Notice of Civil Penalty Assessment:

(a) Is issued by the director or the director's designee; and

(b) Is issued in a manner consistent with the provisions of ORS 183.415, 468B.230 and OAR chapter 137.

(c) In addition to any other penalty provided by law, may be assessed for failure to comply with a provision of ORS Chapter 468 or 468B or any rule adopted under or a permit issued under Chapter 468 or 468B, relating to the control and prevention of water pollution from a CAFO. The amount of the civil penalty shall be determined using the two matrices contained in OAR 603-074-0080 in conjunction with the formula contained in OAR 603-074-0080(4).

(A) Except for those CAFOs defined in OAR 603-074-0010(4)(b), the amount of the initial civil penalty may not exceed $2,500 and any subsequent civil penalties for a repeat occurrence may not exceed $10,000 per violation.

(B) For those CAFOs defined in OAR 603-074-0010(4)(b), civil penalties may not exceed $5,000 per violation and any subsequent civil penalties for a repeat occurrence may not exceed $10,000 per violation.

(2) Prior to assessment of a civil penalty for a violation, the Department must provide a notice of noncompliance to the owner or operator. No advance notice or period to achieve compliance prior to assessment of a civil penalty is required under section (1) of this rule and the Department may issue a notice of civil penalty assessment if:

(a) The violation is intentional; or

(b) The person has received a previous notice of the same or similar violation; or

(c) The operation is a CAFO defined in OAR 603-074-0010(4)(b).

(3) The amount of any civil penalty imposed shall be reduced by the amount of any civil penalty imposed by the Environmental Quality Commission, DEQ, or the United States Environmental Protection Agency, if the latter penalties are imposed on the same person and are based on the same violation.

(4) Magnitude of Violation: The magnitude of a violation shall be categorized as follows:

(a) Category I (Major):

(A) A violation of a Department order issued as part of or in connection with a formal enforcement action;

(B) Failure to provide access to premises or records when required by statute, rule or order;

(C) Any direct discharge of wastes that enters the waters of the state, either without a WCPF or NPDES Permit, or from a point not authorized by the WCPF or NPDES Permit;

(D) Submitting records, reports or application forms that are false, misleading, or fraudulent;

(E) Failure to provide notification of a spill or upset condition that results in a nonpermitted discharge of waste to waters of the state;

(F) Violation of a permit compliance schedule;

(G) Any violation of any pretreatment standard or requirement by a user of a municipal treatment works that either impairs or damages the treatment works, or causes major harm or poses a major risk of harm to public health or the environment.

(b) Category II (Moderate):

(A) Failure to submit a plan or report as required by rule, permit or order;

(B) Placing wastes such that the wastes are likely to enter the waters of the state by any means;

(C) Any violation related to water quality that is not classified elsewhere in these rules as major or minor.

(c) Category III (Minor):

(A) Failure to operate in accordance with an animal waste management plan when one has been approved by the Department;

(B) Failure to submit a discharge monitoring report on time or failure to submit a completed discharge monitoring report.

(5) The gravity of effect of the violation shall be determined by consideration of the individual or cumulative possibility of harm to public health or the environment caused by a violation or violations. Gravity of effect shall be classified as high, medium or low. The existence of one or more factors determined to be high level shall result in the gravity of effect considered to be of high level. Lacking any factor determined to be of high level, the existence of one or more factors of medium level shall result in the gravity of effect to be considered to be of medium level. Lacking any factor of high or medium level shall result in the gravity being of low level:

(a) Gravity of Effect - High Level:

(A) Evidence of significant injury to crops, wildlife or livestock;

(B) Surface or groundwater contamination of a level that poses a significant risk of harm to public health or the environment.

(b) Gravity of Effect - Medium Level: Surface or groundwater contamination that causes a loss of beneficial uses or a violation of applicable water quality standards, but does not pose a significant threat to human health or the environment.

(c) Gravity of Effect - Low Level: Water contamination not found or not found at a level in excess of applicable water quality standards.

(6) Pursuant to ORS 468B.220, any owner or operator of a confined animal feeding operation who has not applied for or does not have a permit required by ORS 468B.050 may be assessed a civil penalty of $500 in addition to other penalties that the director may assess.

(7) Notwithstanding section (1) above, the Department may assess a penalty larger than that specified by the matrices in OAR 603-074-0070 and 603-074-0080 if the violation is committed by an operation defined in OAR 603-074-0010(4)(b) and the Department determines that a larger penalty is appropriate given the extraordinary nature of the violation or its environmental consequences. In no event, however, may the penalty be increased above the maximum amount specified in subsection (3)(b) of this rule.

Or. Admin. Code § 603-074-0070

AD 8-1994, f. & cert. ef. 7-26-94; DOA 15-2001(Temp), f. & cert. ef. 7-2-01 thru 12-28-01; Reverted to AD 8-1994, f. & cert. ef. 7-26-94; DOA 28-2001, f. & cert. ef. 12-31-01; DOA 30-2003, f. 9-11-03, cert. ef. 10-1-03; DOA 19-2024, amend filed 09/25/2024, effective 9/25/2024

Statutory/Other Authority: ORS 468B.217, 468B.230, 561.190 & 561.191

Statutes/Other Implemented: 468B.230