740-300-0090 Violation of Rules — Civil Penalties Under ORS 825.258 (1) Any person who transports or who causes to be transported, a hazardous material, as defined in OAR 740-110-0020, who violates a rule of the Department adopted under ORS 825.258, shall be subject to the penalties in section (5) of this rule. (2) As used in this rule, the following definitions apply: (a) “Similar violation” means a violation similar to a violation that was documented either by a five-day corrective notice or an order issued by the Department of Transportation; (b) “Hazardous materials” means a hazardous substance as defined by OAR 740-110-0020(1); and (c) “Audit” means a Safety Compliance Review at the transporter’s place of business, or other investigation or inspection to determine compliance with rules adopted under ORS 825.258. (3) Staff Guidelines for Monetary Penalties: Penalties requested by staff in a notice of proposed civil penalty shall be guided by application of the Hazardous Materials Penalty Matrix contained in OAR 740-300-0100. The guidelines of the matrix shall be applied to each violation separately. A copy of the penalty matrix worksheet shall be attached to each notice showing the calculation of the penalty and the value assigned to each violation. The worksheet shall indicate the values assigned to each rule violation in a manner which will allow the Department to adjust the total points to eliminate the effect of an alleged violation found not to have been committed. (4) Evidence Relating to Application of Matrix: The Department shall not accept evidence with respect to the weighting by staff of rules violations unless the evidence shows that staff have not applied the guidelines in good faith. (5) Monetary penalties shall be determined by the Echelon value resulting from the point values applied in the Hazardous Materials Matrix contained in OAR 740-300-0100 as follows: (a) Echelon I violations equal $250 per violation to a maximum of $2,500; (b) Echelon II violations equal $500 per violation to a maximum of $5,000; (c) Echelon III violations equal $1,000 per violation to a maximum of $10,000; and (d) Echelon IV violations equal $10,000 per violation with no maximum. (6) Upon a finding of violation(s) at Level I, the Department will issue an order finding such violation(s). (7) Level II: If within the five years preceding the violation, the defendant has been found by order of the Department in violation of rules in the same group, or has received a cease and desist order or order finding violations occurred with respect thereto, penalties will be assessed at Level II. In addition to monetary penalties, the Department shall suspend the operating authority of the transporter for five working days. (8) Level III: For a defendant who has been penalized at Level II within the 12 months preceding the violation, in addition to monetary penalties, the Department will impose any penalties suspended under prior orders, except suspensions of penalties which have become permanent and shall suspend for an additional five days any operating authority of the transporter or cancel such authority if justified by the circumstances of the particular case. (9) For purposes of determining which penalty level is applicable, a corporate carrier will not be held responsible for orders entered against it while under a different controlling interest. (10) A person who causes to be transported a hazardous substance as defined in OAR 740-110-0020(3) shall have five business days from the date of written notice of violation(s), by the Department of Transportation, to correct the violation(s) without being subject to penalties under this rule except when: (a) The person has committed similar violations as defined in subsection (2)(a) of this rule within the previous five years; or (b) As determined by the Department of Transportation, the violation could or does cause substantial harm to human health or the environment. Statutory/Other Authority: ORS 823.011 & 825.258 Statutes/Other Implemented: ORS 823.061, 823.063 & 825.258 History: MCTB 4-2001, f. & cert. ef. 11-9-01 MCT 3-1997, f. & cert. ef. 5-9-97 MCT 5-1996, f. & cert. ef. 9-17-96 MCT 3-1996, f. & cert. ef. 3-14-96, Renumbered from 860-061-0090 PUC 14-1992, f. & cert. ef. 11-9-92, (Order No. 92-1560)