Or. Admin. Code § 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) Determine the magnitude of the violation
as specified in subsection (2) of this section.
(b) Determine the gravity of effect pertinent
to the violation as specified in subsection (3) of this section.
(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 pesticide applicator or 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, which include, but are not limited to, the purchaser's
name, address and certification number, sale date, and identification and
quantity of product sold (ORS
634.372(5), OAR
603-057-0140). Four or more items of required information missing and/or
incorrectly recorded;
(G) As a
pesticide operator, public applicator or pesticide applicator not employed by a
pesticide operator, 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, which include the name of the employer or customer,
location, date, approximate time application was made, supplier and identity of
product applied, amount of product applied, the specific property or the crop
to which application was made, type of application equipment used, and the full
name of the applicator or trainee who made the application (ORS
634.372(5);
634.146(1); OAR
603-057-0130). Four or more items of required information missing and/or
incorrectly recorded;
(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 pesticide applicator or certified
private applicator performing the actual application, or supervising such
application if performed by a pesticide trainee (ORS
634.372(7));
(J) As a pesticide applicator, work or engage
in the application of any classes of pesticides without first obtaining and
maintaining a pesticide applicator's 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 pesticide applicator or pesticide trainee (ORS
634.372(9)):
(i) Firm licensing - No license;
(ii) Employee licensing - No
license.
(L) As a
pesticide trainee, work or engage in the application of any class of pesticides
without first obtaining and maintaining a pesticide trainees license and is
otherwise 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 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, which include, but are not limited to, the purchaser's
name, address and certification number, sale date, and identification and
quantity of product sold (ORS
634.372(5); OAR
603-057-0140). Two or three items of required information missing and/or
incorrect;
(C) As a pesticide
operator, public applicator or pesticide applicator not employed by a pesticide
operator, 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, which include the name of the employer or customer, the location,
date, approximate time application was made, supplier and identity of product
applied, amount of product applied, the specific property or the crop to which
application was made, type of application equipment used, and the full name of
the applicator or trainee who made the application (ORS
634.372(5);
634.146(1); OAR
603-057-0130). Two or three items of required information missing and/or
incorrectly recorded;
(D) As a
pesticide applicator, work or engage in the application of any classes of
pesticides without applicator's 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 pesticide applicator or pesticide trainee (ORS
634.372(9)):
(i) Firm licensing - Inappropriate
license;
(ii) Employee licensing -
Inappropriate license.
(F) As a pesticide trainee, work or engage in
the application of any class of pesticides without first obtaining and
maintaining a pesticide trainee's certificate and is otherwise in compliance
with the provisions of this chapter (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
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, which include, but are not limited to, the
purchaser's name, address and certification number, sale date, and
identification and quantity of product sold (ORS
634.372(5); OAR
603-057-0140). One item of required information missing and/or incorrectly
recorded;
(B) As a pesticide
operator, public applicator or pesticide applicator not employed by a pesticide
operator, 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, which include the name of the employer or customer, the location,
date, approximate time application was made, supplier and identity of product
applied, amount of product applied, the specific property or the crop to which
application was made, type of application equipment used, and the full name of
the applicator or trainee who made the application (ORS
634.372(5);
634.146(1); OAR
603-057-0130). One item of required information missing and/or incorrectly
recorded;
(C) Other violations with
a substantially similar potential to affect the public interests reflected in
ORS 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.
Notes
Statutory/Other Authority: ORS 561, 634 & 183.335(5)
Statutes/Other Implemented: ORS 183.745, 634.006, 634.306, 634.322, 634.372 & 634.900 - 634.915
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