Washington Administrative Code › Title 16 - Agriculture, Department of (See also Titles 24, 60, and 142) › GRAIN AND CHEMICAL › Chapter 16-228 - General pesticide rules › Section 16-228-1131 - Aggravating and mitigating factors

Current through Register Vol. 24-14, July 15, 2024
The department may consider the following factors when
				  calculating penalties under WAC
				  16-228-1130. The department is not
				  required to apply every aggravating or mitigating factor that may be present or
				  relevant to a particular violation, and will only apply those factors that the
				  department determines significantly affect a case or contribute to a particular
				  violation.
(1) Aggravating factors.
				When calculating penalties under WAC
				16-228-1130, the department may
				consider circumstances that warrant enhancing the penalty above base penalty.
				Aggravating factors include, but are not limited to, the following:
(a) The number of separate alleged violations
				contained within a single notice of intent.
(b) The high magnitude of the harm, or
				potential harm, including either the quantity or degree, or both, to humans,
				animals, plants, property, or the environment caused by the violation(s).
(i) Number of individuals directly exposed as
				a result of the violation. The department may aggravate the penalty for each
				individual exposed.
(ii) Number of
				individuals reporting verifiable health symptoms to the department or to the
				state department of health. The department may aggravate the penalty for each
				individual that reported verifiable symptoms.
(iii) Number of individuals requiring
				emergency medical treatment. The department may aggravate the penalty for each
				individual that required emergency medical treatment.
(c) The similarity of the current alleged
				violation to previous violations committed within the last six years,
				regardless of whether those violations resulted in notices of correction or
				notices of intent, and regardless of whether a notice of intent was resolved by
				a settlement unless otherwise expressly indicated in the agreement.
(d) The extent to which the alleged violation
				is part of a pattern of the same or substantially similar conduct.
(e) Lack of, or deficiency in, either
				training or supervision of operator(s), or both, regardless of whether the
				pesticide(s) applied required direct supervision of uncertified
				applicators.
(f) High pesticide
				toxicity. This may be indicated by a product's signal word or words on any
				pesticide label involved in the offending investigation including, but are not
				limited to, "Danger/Poison."
(g)
				One or more pesticides involved in the incident were state or federal
				restricted use pesticides.
(h) The
				high degree of visible and accessible damage that was not reported in
				conjunction with a complete wood destroying organism inspection, when the
				damage was located in an area that was not allowably excluded from
				inspection.
(i) The violation
				involved a careless or negligent operation.
(j) Inappropriate or insufficient equipment
				safeguards or operation including, but not limited to, the failure to properly
				calibrate and configure application equipment prior to application.
(k) Extent to which the location of the
				violation, including near sensitive areas or areas near human population,
				creates the potential for harm to the environment or human health or
				safety.
(l) False information
				provided to the department during an investigation of the violation.
(m) Applicator failed to follow advisory
				precautionary language on label, which impacted the violation.
(n) Except as exempted in WAC
				16-228-1110(2),
				the violation had a direct adverse effect on bees, honey bees, or other
				beneficial pollinating insects.