This information is to help you better understand DEQ's enforcement
process. As a person who has received a Notice of Violation,
Assessment of Civil Penalty and/or Department Order (Notice/Order),
you will want to be adequately prepared to meet with DEQ staff to
resolve this matter as efficiently and painlessly as possible. It is
DEQ's underlying goal to assist you in returning to full compliance.
The following are answers to questions most frequently asked by
people involved in the enforcement process:
What is a Notice of Violation, Assessment of Civil Penalty and/or
It is important that we receive your request for hearing within
20 days from the date you receive the Notice/Order, if you intend to
appeal it. The Notice/Order initiates a formal administrative
enforcement process. It outlines DEQ's finding of facts, identifies
the laws or regulations DEQ believes were violated, invites you to
request an informal discussion, and gives you information about how
to appeal. If you accept DEQ's findings, the case will be
closed once you perform the actions required by the Order, if any,
and pay the penalty.
I have been working with regional inspectors and staff to correct
this problem - why is DEQ taking an enforcement action?
DEQ takes enforcement actions and assesses civil penalties to
create consistency and predictability in enforcement, to deter
future noncompliance, and to eliminate economic incentives for not
complying with environmental laws. In some cases, DEQ initiates and
follows through with an enforcement action if the alleged violation
has not been corrected within a reasonable period of time. DEQ may
also initiate enforcement because of the importance of the
requirement that was violated or if the violation created a threat
to public health or the environment.
How is the penalty amount determined?
The exhibit(s) attached to the Notice/Order shows how your
penalty was calculated. The penalty was calculated using a formula
set forth in Oregon’s Administrative Rules (OARs) Chapter 340,
Division 012. The amount of the civil penalty reflects the type of
alleged violator and violation(s) and the severity, frequency, and
duration of the alleged violation(s). Other factors considered are
the history of compliance or noncompliance with environmental laws,
degree of negligence, and the economic benefit gained through
What is an informal discussion and what can I do to prepare for it?
The informal discussion is a voluntary meeting you may request
with DEQ staff. The Notice/Order you received contains all of the
known issues of regulatory concern and provides the basis for
discussion. It's important that you be fully prepared to present any
information that contradicts the alleged facts or that will help DEQ
staff make fair and sound decisions about whether a settlement
recommendation is possible. Toward that end, you should also be
prepared to report any actions you are taking or planning to take to
correct the situation.
Who will attend the informal discussion?
Typically, an Environmental Law Specialist and the regional
inspector involved with the matter will represent DEQ. You will
likely want to bring people most familiar with the issues and who
can represent you well. You may consult with or bring an attorney if
What can I expect to happen at the informal discussion and what may
You can expect a fair and objective evaluation of the facts and
circumstances surrounding the alleged violations. DEQ encourages you
to present whatever new or mitigating information you have that will
shed light on the issues. Also, DEQ's enforcement staff may ask
questions to help you elaborate on the issues. After the informal
discussion, DEQ staff will make recommendations to DEQ
Administration on what steps should be taken to conclude the action.
There are three possible outcomes:
- DEQ determines that the event was not a violation and the
action is dismissed;
- DEQ determines that the violation or penalty calculation
should be re-alleged according to new facts or mitigating
information, and offers to settle the action by entering into a
Mutual Agreement and Order;
- There is disagreement on the violation and/or other issues
that make settlement impossible, in which case you are entitled
to a contested case hearing where the Department must prove that
the violations occurred and that a penalty is appropriate.
What is a Mutual Agreement and Order?
A Mutual Agreement and Order (MAO) is a legally binding
enforceable document that sets out settlement terms on which you and
DEQ agree. Often, the MAO provides that the Department agrees to
reduce the penalty to reflect facts based on new information.
Sometimes the purpose of the MAO is to provide a payment plan. The
MAO may also change the actions or deadlines set forth in an Order.
In signing a MAO, you waive your right to appeal, but obtain the
benefit of the agreement you have reached with DEQ and avoid the
additional time and potential legal costs associated with the appeal
processes. Once the MAO is signed by the parties, the penalty and/or
order becomes final.
What if I do not settle?
If you are not able to reach a settlement with DEQ, you are
entitled to a contested case hearing. The hearing will be conducted
by an administrative law judges available through by the Oregon
Central Hearings Panel. These judges are not employees of DEQ and
are instructed to render neutral and objective findings of fact. At
the hearing, DEQ must prove that, more likely than not, the
allegations on which DEQ based its case are true and the assessed
penalty is supported by law. In most cases DEQ will proceed with the
penalty as initially calculated in the Notice/Order. The hearing is
a semi-formal proceeding and you will be given an opportunity to
present evidence and cross-examine witnesses. You may be
represented at the hearing by an attorney if you wish.
Where do the civil penalties go?
Penalty money received is deposited in Oregon's General Fund or
otherwise dispersed according to state law. As provided by state
statute, only DEQ's underground storage tank and spill programs
receive any portion of the penalty collected in those programs.
What is my incentive to comply if DEQ will proceed with a civil
penalty assessment anyway?
DEQ assesses penalties to deter continued or repeated
noncompliance and to create a regulatory environment that is fair to
those who reach compliance on their own initiative. For reasons of
consistency, DEQ rarely withdraws an action in a case where it has
determined that enforcement was needed. However continued
noncompliance may lead to additional penalties. Also, if you
demonstrate good faith efforts to promptly correct the alleged
violation, DEQ will favorably consider these actions when
calculating any penalty reduction. Other mitigating factors that may
reduce the penalty amount include measures taken to prevent
recurrence, exceptional pollution prevention, and, in penalties over
$2,000, a Supplemental Environmental Project.
What is a Supplemental Environmental Project?
A Supplemental Environmental Project (SEP) is an environmental
enhancement project which, upon agreement with DEQ, you could
perform as part of a penalty reduction. SEPs are considered only for
penalties amounting to over $2,000. The SEP cannot be something you
are already required to do by law or something that is financially
self-serving. SEPs that result in pollution prevention are
especially favored. A SEP directive was likely included in the
documents sent to you and defines the factors DEQ will consider in
evaluating whether an SEP proposal is acceptable for settlement.
Who should I contact if I have questions?
The last paragraph of the cover letter to the Notice/Order gives
you a phone number for the Environmental Law Specialist who will
handle your action for DEQ. This person will answer other questions
about the enforcement process and will represent DEQ at the informal
discussion and at the contested case hearing (if there is one). You
may continue to contact the DEQ inspector with whom you have been in
prior contact. The inspector will be better able to assist you with