OAR 629-670-0225: Significant Violation Civil Penalties that have been Committed by Repeat Violators

Note: This rule applies to all operations for which a notification is filed under ORS 527.670(6) on or after January 1, 2024 or a notification filed prior to January 1, 2024 if the operation is not completed on or before December 31, 2023. Rules that relate to fish streams apply to an operation, other than an operation on small forestland, for which a notification is filed on or after July 1, 2023. (1) The purpose of this rule is to establish civil penalties for Significant Violations committed by Repeat Violators. (2) Significant Violation civil penalty calculation when committed by a Repeat Violator: (a) The amount of civil penalty per Significant Violation shall be the lesser of $50,000 or the amount determined by the formula ($B (C x P) + ($B x D x R)) x N where: (A) $B is a base penalty of $2000 per (4)(b) of this rule; (B) C is cooperation; (C) P is prior knowledge or prior violations; (D) D is damage to protected resources; (E) R is the extent of damage that cannot be corrected, or prevented in the future, even though repairs are made; and (F) N is the average Number of Notifications yearly. (b) The base penalty value ($B) shall be $2000 for significant violations. (c) The cooperation value (C) shall be determined using OAR 629-670-0210(3). (d) The prior knowledge value (P) shall be determined using OAR 629-670-0210(4). (e) The damage value (D) shall be determined by using OAR 629-670-0210(5). (f) The repair value (R) shall be determined by using OAR 629-670-0210(6). (g) The average Number of Notifications yearly (N) shall be determined by the State Forester after reviewing the department’s reporting and notification system records of Notifications to determine using a 5-year average when possible. A value of 0.8 to 1.0 shall be assigned as follows: (A) A value of 1.0 is appropriate when the operator has been listed on 1 through 50 notifications per year. (B) A value of 0.95 is appropriate when the operator has had been listed on 51 through 100 notifications per year. (C) A value of 0.9 is appropriate when the operator has been listed on 101 through 200 notifications per year. (D) A value of 0.85 is appropriate when the operator has been listed on 201 through 300 notifications per year. (E) A value of 0.8 is appropriate when the operator has been listed on 301 or more notification per year. (3) In imposing a civil penalty for repeat violators under this rule, the State Forester shall consider, in addition to the factors described in subsection (2) of this rule: (a) The degree, if any, to which the operator, timber owner or landowner derived economic benefit from the significant violation. (b) The proportion of total operations conducted by the operator, timber owner or landowner related to which significant violations have occurred compared to the total number of operations conducted by the operator, timber owner or landowner, while accounting for the organizational structure of the operator, timber owner or landowner.