OAR 603-057-0525: Civil Penalties; Magnitude of Violation and Gravity of Effect

(1) The Director will consider the magnitude of the violation and its gravity of effect when calculating a civil penalty for a violation. (a) The Director shall determine the magnitude of the violation as specified in section (2) of this rule. (b) The Director shall determine the gravity of effect pertinent to the violation as specified in section (3) of this rule. (2) Magnitude of Violation: Violations are categorized as to their magnitude of violation as follows: (a) Category I (Major): (A) Make false or misleading claims through any media, relating to the effect of pesticides or application methods to be utilized (ORS 634.372(1)); (B) As a commercial, noncommercial, or public applicator or pesticide operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its labeling (ORS 634.372(2)); (C) As a pesticide consultant recommend the application or use of any pesticide inconsistent with its labeling (ORS 634.372(2)); (D) As a pesticide dealer knowingly distribute any pesticide for application or use inconsistent with its labeling (ORS 634.372(2)); (E) Perform pesticide application activities in a faulty, careless or negligent manner (ORS 634.372(4)); (F) As a pesticide dealer, refuse or neglect to prepare required records of restricted use and highly toxic pesticide product sales and to maintain those records for at least three years prior to the date of inspection (ORS 634.372(5), OAR 603-057-0140). Occurs when four or more items across any of the records inspected are missing or contain incorrectly recorded information; (G) As a pesticide operator, public applicator or noncommercial applicator, refuse or neglect to prepare required pesticide application records, and to maintain those records for at least three years prior to the date of inspection (ORS 634.372(5); 634.146(1); OAR 603-057-0130). Occurs when four or more items across any of the records inspected are missing or contain incorrectly recorded information; (H) Prepare required records, reports or application forms which are false, misleading or fraudulent (ORS 634.372(6)); (I) Operate pesticide applicators' apparatus, machinery or equipment without a licensed commercial, public, noncommercial or private applicator performing the actual application, or supervising such application if performed by a trainee as defined in ORS 634.006 (ORS 634.372(7)); (J) As a commercial, public, or noncommercial applicator, work or engage in the application of any classes of pesticides without first obtaining and maintaining a commercial, public, or noncommercial applicator license, or apply pesticides which are not specifically authorized by such license (ORS 634.372(8)). No license; (K) As a pesticide operator, engage in the business of, or represent or advertise as being in the business of, applying pesticides on the property of another, without first obtaining and maintaining a pesticide operator's license, nor shall such person engage in a class of pesticide application business which is not specifically authorized by the license issued by the Department. Further, no such person shall employ or use any person to apply or spray pesticides who is not a licensed commercial applicator, licensed immediately supervised trainee or licensed pesticide apprentice (ORS 634.372(9)): (i) Firm licensing — No license; (ii) Employee licensing — No license. (L) As an immediately supervised trainee or pesticide apprentice, work or engage in the application of any class of pesticides without first obtaining and maintaining the appropriate trainee’s license and otherwise being in compliance with the provisions of this chapter (ORS 634.372(10). No license; (M) Act as or purport to be, a pesticide dealer or advertise as such without first obtaining and maintaining a pesticide dealer's license (ORS 634.372(11)); (N) Act as or purport to be a pesticide consultant without first obtaining and maintaining a pesticide consultant's license (ORS 634.372(12)); (O) Apply any pesticide classified as a restricted-use or highly toxic pesticide to agricultural, horticultural or forest crops on land owned or leased by the person without first obtaining and maintaining a private applicator certificate (ORS 634.372(13)); (P) As a person described in ORS 634.106(5), use power-driven pesticide application equipment or devices (use hand or backpack types only), or use or apply any pesticide other than those prescribed by the Department (ORS 634.372(14)); (Q) Deliver, distribute, sell or offer for sale any pesticide which has been misbranded (ORS 634.372(15)); (R) Formulate, deliver, distribute, sell or offer for sale any pesticide which is adulterated (ORS 634.372(16)); (S) Make application of pesticides, by aircraft or otherwise, within a protected or restricted area without first obtaining a permit for such application from the committee of the protected or restricted area in which the application is to be made, nor shall such person make such an application contrary to the conditions or terms of the permit so issued (ORS 634.372(20)); (T) Use isopropyl ester of 2,4-D, or any other ester of equal or higher volatility with regard to plant damage as determined by the Department, without first obtaining a permit for such use as provided in ORS 634.322(10); 634.372(21)); (U) Sell, use or remove any pesticide or device subjected to a "stop sale, use or removal" order until the pesticide or device has been released there-from as provided in ORS 634.322(3) (634.372(22)); (V) Other violations with a substantially similar potential to affect the public interests reflected in ORS chapter 634. (b) Category II (Moderate): (A) Operate a faulty or unsafe spray apparatus, aircraft or other application device or equipment (ORS 634.372(3)); (B) As a pesticide dealer, refuse or neglect to prepare required records of restricted use and highly toxic pesticide product sales and to maintain those records for at least three years prior to the date of inspection (ORS 634.372(5); OAR 603-057-0140). Occurs when two or three items across any of the records inspected are missing or contain incorrectly recorded information; (C) As a pesticide operator, public applicator or noncommercial applicator, refuse or neglect to prepare required pesticide application records, and to maintain those records for at least three years prior to the date of inspection (ORS 634.372(5); 634.146(1); OAR 603-057-0130). Occurs when two or three items across any of the records inspected are missing or contain incorrectly recorded information; (D) As a commercial, public, or noncommercial pesticide applicator, work or engage in the application of any classes of pesticides without a commercial, public, or noncommercial applicator license, or apply pesticides which are not specifically authorized by such license (ORS 634.372(8)). Inappropriate license; (E) As a pesticide operator, engage in the business of, or represent or advertise as being in the business of, applying pesticides on the property of another, without first obtaining and maintaining a pesticide operator's license, nor shall such person engage in a class of pesticide application business which is not specifically authorized by the license issued by the Department. Further, no such person shall employ or use any person to apply or spray pesticides who is not a licensed commercial applicator, licensed immediately supervised trainee, or licensed pesticide apprentice (ORS 634.372(9)): (i) Firm licensing — Inappropriate license; (ii) Employee licensing — Inappropriate license. (F) As an immediately supervised trainee or pesticide apprentice, work or engage in the application of any class of pesticides without first obtaining and maintaining the appropriate trainee's certificate and otherwise being in compliance with the provisions of ORS chapter 634 (ORS 634.372(10)). Inappropriate license; (G) Formulate, deliver, distribute, sell or offer for sale any pesticide which has not been registered as required by ORS 634.016 (634.372(17)); (H) Formulate, deliver, distribute, sell or offer for sale any powdered pesticide containing arsenic or any highly toxic fluoride which is not distinctly colored (ORS 634.372(18)); (I) Distribute sell or offer for sale any pesticide except in the manufacturers original unbroken package (ORS 634.372(19)); (J) Other violations with a substantially similar potential to affect the public interests reflected in ORS chapter 634. (c) Category III (Minor): (A) As a pesticide dealer, refuse or neglect to prepare required records of restricted use and highly toxic pesticide product sales and to maintain those records for at least three years prior to the date of inspection (ORS 634.372(5); OAR 603-057-0140). Occurs when one item across any of the records inspected is missing or contains incorrectly recorded information; (B) As a pesticide operator, public applicator or noncommercial pesticide applicator, refuse or neglect to prepare required pesticides application records, and to maintain those records for at least three years prior to the date of inspection (ORS 634.372(5); 634.146(1); OAR 603-057-0130). Occurs when one item across any of the records inspected is missing or contains incorrectly recorded information; (C) Other violations with a substantially similar potential to affect the public interests reflected in ORS chapter 634. (3) Gravity of Effect: The Director shall rank the violation as to its gravity of effect. Following are the factors that may be considered in assigning a gravity ranking to a specific violation. The existence of one or more factors determined to be of high level shall result in the gravity being ranked high level. Lacking any factor determined to be high level, the existence of one or more factors determined to be of medium level shall result in the gravity being ranked medium level. Lacking any factor determined to be of high or medium level shall result in the gravity being ranked low level: (a) Rank — High Level: (A) Human Threat: Injury or illness occurred which was confirmed by medical evaluation conducted through the Oregon Pesticide Analytical And Response Center to have been caused by the pesticide exposure; (B) Environmental Threat: (i) Evidence of injury to crops, wildlife, and/or livestock documented by the Department or other appropriate federal or state agency; or (ii) Evidence of surface or groundwater contamination documented by the Department or other appropriate federal or state agency. (C) Pesticide: (i) Designated as restricted use or highly toxic; or (ii) Use or distribution halted due to emergency suspension. (D) Conditions of Usage: (i) Wide area of application; (ii) Use in area of high population density (e.g., urban, suburban); or (iii) Usage resulted in a pesticide residue or metabolite on a food or feed crop, on a raw agricultural commodity, or on a crop having food or feed by-products, and for which there is no tolerance or exemption from tolerance established, or for which the established tolerance was exceeded. (iv) Usage resulting in a pesticide residue or a metabolite of a pesticide being deposited onto a school as defined in OAR 603-057-0500(14) by a person other than that authorized by the school’s governing body as defined in ORS 634.700(2). (b) Rank — Medium Level: (A) Human Threat: Physical irritation occurred which was confirmed by medical evaluation conducted through the Oregon Pesticide Analytical And Response Center to have been caused by pesticide exposure. (B) Environmental Threat: Symptoms of exposure visible in crops, wildlife, and/or livestock documented by the Department or other appropriate federal or state agency. (C) Conditions of Usage: (i) Moderate area of application; or (ii) Use in area of medium population density.