OAR 603-057-0529: Civil Penalty For A Violation Occurring Before June 25, 2007; Formula for Amount

(1) When the Director determines that a violation occurred before June 25, 2007, the Director will determine the amount of any civil penalty for that violation using OAR 603-057-0525 and this section. To determine the amount of the civil penalty, calculate it utilizing the formula: NB + [(.1 x NB) x (P + H + R + C)] = Penalty Amount where: (a) N = the number of times, within a period of three years prior to and including the date of the current violative act, that the person has been determined by the Director to have committed that violative act; (b) B = the base penalty determined using the following matrix: [Matrix not included. See ED. NOTE.] (A) The Magnitude of Violation is determined according to OAR 603-057-0525(2). (B) The Gravity of Effect is determined according to OAR 603-057-0525(3). (c) P = past occurrence of unrelated violations under ORS Chapter 634 for a period of three years prior to the date of the current violative act. P will be weighted from O to 6 in the following manner: (A) O = no prior violation or insufficient evidence on which to base a finding; (B) 1 = past occurrence of an unrelated Category III violation; (C) 2 = past occurrence of an unrelated Category II violation or two unrelated Category III violations; (D) 3 = past occurrence of an unrelated Category I violation, two unrelated Category II violations or three unrelated Category III violations; (E) 4 = past occurrence of two unrelated Category I violations, three unrelated Category II violations or four unrelated Category III violations; (F) 5 = past occurrence of three unrelated Category I violations, four unrelated Category II violations, or five or more unrelated Category III violations; (G) 6 = past occurrence of three or more unrelated Category I violations or five or more unrelated Category II violations. (d) H = History of the person in taking all feasible steps or procedures necessary or appropriate to correct a violative action. H will be weighted from -2 to 2 in the following way: (A) -2 = the person took all feasible steps or procedures to correct any prior violations; (B) O = 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 or procedures to correct prior violations; (D) 2 = the person took no action to correct prior violations. (e) R = preventability of violation. 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) O = 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. (f) C = cooperativeness on the part of the person to assist the department in its investigation and to the extent possible, rectify the violation. C will be weighted from -2 to 2 in the following way: (A) -2 = the person is cooperative; (B) -1 = the person provides limited cooperation; (C) O = the person is neither cooperative nor uncooperative; (D) 1 = the person is generally uncooperative; (E) 2 = the person is uncooperative. (2) If the calculation utilizing the formula in this section results in an amount more than $1,000 for a first violation of any provision of ORS 634, the Director shall assess a civil penalty of $1,000. If the calculation utilizing the formula in this section results in an amount more than $2,000 for any subsequent violation of the same provision of ORS 634, the Director shall assess a penalty of $2,000. In addition, the Director may consider this adjustment if the Director remits or reduces the amount as provided in ORS 634.910 or OAR 603-057-0502(6). [ED. NOTE: Matrix referenced is available from the agency.]