603-090-0120 Civil Penalty Determination Procedure In determining the amount of a civil penalty to be assessed for any violation of the requirements of agricultural water quality management area rules adopted under ORS 568.900 to 568.933, the department shall apply the following procedure: (1) Determine the magnitude of the violation as specified in OAR 603-090-0110(4). (2) Determine the gravity of effect pertinent to the violation as specified in OAR 603-090-0110(5). (3) Using the magnitude of the violation and the gravity of effect identified, and depending on whether it is the first or a repeat violation, determine the base penalty (B) by reference to the appropriate matrix contained in this rule. [Table not included. See ED. NOTE.] (4) Calculate the amount of the civil penalty to be assessed utilizing the formula: B + [(.1 X B) (P + H + R)] = Penalty Amount where: (a) B = Base penalty is the primary penalty for a given violation derived from the appropriate matrix contained in OAR 603-090-0120; (b) P = Past occurrence of violations of the requirements of water quality management area rules adopted under ORS 568.900 to 568.993. P will be weighted from 0 to 6 in the following manner: (A) 0 = no prior violation or insufficient evidence on which to base a finding; (B) 1 = past occurrence of a Category III violation; (C) 2 = past occurrence of a Category II violation or two category III violations; (D) 3 = past occurrence of a Category I violation, two Category II violations, or three Category III violations: (E) 4 = past occurrence of two Category I violations, three Category II violations or four Category III violations; (F) 5 = past occurrence of three Category I violations, four Category II violations, or five or more Category III violations; (G) 6 = past occurrence of more than three Category I violations or five or more Category II violations. (c) H = History of the person in taking all feasible steps or procedures necessary and appropriate to prevent or correct a violation. H will be weighted from -2 to 2 in the following way: (A) -2 = the person took all feasible steps to correct any prior violations: (B) 0 = there is no prior history or insufficient information on which to base a finding; (C) 1 = the person took some, but not all feasible steps to correct prior violations; (D) 2 = the person took no action to correct prior violations. (d) R = Preventability of the violation and whether negligence or misconduct was involved. R will be weighted from -2 to 7 in the following way: (A) -2 = the person's actions determined to be violative were unavoidable; (B) 0 = information is insufficient to make any finding; (C) 3 = the person's actions determined to be violative were reasonably avoidable; (D) 7 = the person's actions were flagrant or reckless. (5) A civil penalty imposed under the applicable statues and these rules may be remitted or reduced at the director's discretion upon such terms and conditions that are proper and consistent with public health and safety. (6) At the discretion of the director, a respondent who is unable to pay the full amount of a civil penalty may be allowed to pay the civil penalty by means of a schedule of payments which may include payment of interest on the unpaid balance for any delayed payments. [ED. NOTE: Tables referenced are available from the agency.] Statutory/Other Authority: ORS 561 & 568.900 - 568.933 Statutes/Other Implemented: ORS 568.900 - 568.933 History: DOA 16-2006, f. & cert. ef. 9-15-06 AD 9-1994, f. & cert. ef. 7-26-94