Date of Adoption: December 11, 2000.

Purpose: To revise chapter 16-228 WAC, rules related to the pesticide penalty matrix. The rule addresses issues and concerns raised since the implementation of the original rule in 1992. More specifically, the rules ensure a fair and uniform method when assessing civil penalties and licensing actions for violations of the laws and rules related to pesticides. The changes also simplify and provide additional clarity to the rules. Changes will also provide an increased level of deterrence.

Citation of Existing Rules Affected by this Order: Chapter 16-228 WAC, repealing WAC 16-228-1140; and amending WAC 16-228-1110, 16-228-1120, 16-228-1130, and 16-228-1150.

Statutory Authority for Adoption: Chapters 17.21 and 15.58 RCW.

Adopted under notice filed as WSR 00-21-097 on October 18, 2000.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 2, Amended 4, Repealed 1.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 2, Amended 4, Repealed 1.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 2, Amended 4, Repealed 1. Effective Date of Rule: Thirty-one days after filing.

December 11, 2000

Jim Jesernig

Director

(1) "Adverse effect(s)" means ((a)) that the alleged activity actually causes, or creates the possibility of ((pesticide exposure that could cause)) damage ((or)), injury or public health threat, to humans, animals, plants, property or the environment. In those situations involving a wood destroying organism inspection, adverse effects exist when the inspection has been performed in a faulty, careless or negligent manner.

(2) (("Knowingly" means that the alleged violator knew or should have known that conditions existed that would result in adverse effect(s) or knew that a violation would occur.

(3))) "Level of violation" means that the alleged violation is a first, second, third, fourth, ((fifth,)) or more violation(s).

(a) First violation. This means the alleged violator has committed no prior incident(s) which resulted in a violation or violations within three years of committing the current alleged violation.

(b) Second violation. This means the alleged violator committed one prior incident which resulted in a violation or violations within three years of committing the current alleged violation.

(c) Third violation. This means the alleged violator committed two prior incidents which resulted in a violation or violations within three years of committing the current alleged violation.

(d) Fourth violation. This means the alleged violator committed three prior incidents which resulted in a violation or violations within three years of committing the current alleged violation.

(e) ((Fifth or more violation. This means the alleged violator committed at least four prior incidents which resulted in a violation or violations within three years of committing the current alleged violation.))

(4))) For purposes of calculating the level of violation, prior incidents will be measured from the date that a final order or stipulated order resolved the prior violation(s), and not from the date that the incident(s) occurred.

(3) "Not probable" means that the alleged violator's conduct more likely than not would not have an adverse effect.

(((5))) (4) "Probable" means that the alleged violator's conduct more likely than not would have an adverse effect.

(((6) "Unknowingly" means that the alleged violator did not act knowingly.))

(((7))) (5) "Violation" means commission of an act or acts prohibited by chapter 17.21 RCW, chapter 15.58 RCW, and/or rules adopted thereunder.

(6) "Civil penalty" means a monetary penalty administratively issued by a regulatory agency for noncompliance with state or federal law, or rules. The term does not include any criminal penalty, damage assessment, wages, premiums, or taxes owed, or interest or late fees on any existing obligation.

(7) "Notice of Correction" means a document issued by the department that describes a condition or conduct that is not in compliance with chapter 15.58 or 17.21 RCW, or the rules adopted under the authority of chapter 15.58 or 17.21 RCW and is not subject to civil penalties as provided for in RCW 43.05.110. A notice of correction is not a formal enforcement action, is not subject to appeal and is a public record.

(8) "Notice of intent" means a document issued by the department that alleges specific violations of chapter 15.58 or 17.21 RCW, or any rules adopted under the authority of those chapters. A notice of intent is a formal enforcement document issued with the intent to assess civil penalties to the alleged violator and/or to suspend, deny or revoke the alleged violator's pesticide license.

[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, 16-228-1110, filed 10/20/99, effective 11/20/99.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 16-228-1115   Application of RCW 43.05.100 and RCW 43.05.110 -- Issuance of a civil penalty without first issuing a notice of correction   (1) Pursuant to RCW 43.05.100 a notice of correction may be issued by the department when they become aware of conditions and/or conduct that are not in compliance with the applicable laws and rules enforced by the department. The issuance of a notice of correction by the department shall not constitute a previous violation for purposes of WAC 16-228-1110(2), but may, at the discretion of the department, be considered as an aggravating factor for the purposes of WAC 16-228-1120(2).

(2) Prior to issuing a civil penalty for a violation of chapter 15.58 or 17.21 RCW, and the rules adopted under the authority of chapter 15.58 or 17.21 RCW the department shall comply with the requirements of RCW 43.05.110. RCW 43.05.110 provides that the department of agriculture may issue a civil penalty provided for by law without first issuing a notice of correction if: (1) The person has previously been subject to an enforcement action for the same or similar type of violation of the same statute or rule or has been given previous notice of the same or similar type of violation of the same statute or rule; or (2) compliance is not achieved by the date established by the department in a previously issued notice of correction, if the department has responded to any request for review of such date by reaffirming the original date or establishing a new date; (3) the violation has a probability of placing a person in danger of death or bodily harm, has a probability of causing more than minor environmental harm, or has a probability of causing physical damage to the property of another in an amount exceeding one thousand dollars; or (4) the violation was committed by a business that employed fifty or more employees on at least one day in each of the preceding twelve months.

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(2) Proportionate adjustment of median penalty.

(a) The department reserves the right to proportionately increase the civil penalty and proportionately decrease the licensing action ((when)) under certain circumstances ((in the particular case demonstrate the ineffectiveness of the licensing action as a deterrent including but not limited to violations by persons who are not licensed and violations by certified private applicator(s), or proportionately decrease the civil penalty and proportionately increase the licensing action when circumstances in the particular case demonstrate the ineffectiveness of a civil penalty action as a deterrent)). Such circumstances include situations where licensing action(s) as a deterrent are ineffective and include, but are not limited to:

(i) Violations by persons who are not licensed; and

(ii) situations where the civil penalty assessed is not substantially equivalent to the violator's economic benefit derived from the violation.

(b) The department also reserves the right to proportionately decrease the civil penalty and increase the licensing action in circumstances that demonstrate the ineffectiveness of a civil penalty as a deterrent. Nothing shall prevent the department from proportionally adjusting a licensing action to a level greater than the maximum licensing action listed in the penalty assignment schedule.

(3) Aggravating factors. The department may consider circumstances enhancing the penalty based on the seriousness of the violation((, including,)). Aggravating factors include, but are not limited to, the following:

(a) ((Each separate additional incident of violation(s) alleged within a single notice of intent to have been committed by the alleged violator within the same calendar year.)) The number of separate alleged violations contained within a single notice of intent.

(b) The high magnitude of the harm, or potential harm, including quantity and/or degree, to humans, animals, plants, property or the environment caused by the violation(s).

(c) The similarity of the current alleged violation to previous violations ((that occurred)) committed within the last three years ((of the current alleged violation)).

(d) The extent to which the alleged violation is part of a pattern of the same or substantially similar conduct ((by others which necessitates a greater deterrent factor)).

(4) When the department determines that one or more aggravating factors are present, the department may assess the maximum penalty as listed within the level of violation or may, in its discretion, increase the penalty to a level greater than the maximum penalty, including but not limited to revocation of the license.

(5) Mitigating factors. The department may consider circumstances reducing the penalty based upon the seriousness of the violation ((including, but)). Mitigating factors include but are not limited to, the following:

(a) ((A)) Voluntary disclosure of a violation ((by the alleged violator)).

(b) The low magnitude of the harm, or potential harm, including quantity and/or degree, caused by the violation.

(c) Voluntary taking of remedial measures that will result in increased public protection, or that will result in a decreased likelihood that the violation will be repeated.

(6) When the department determines that one or more mitigating factors are present, the department may assess the minimum penalty for the violation from the penalty schedule.

(7) The department considers each violation to be a separate and distinct event. When a person has committed multiple violations, the violations are cumulative for purposes of calculating the appropriate penalty. Penalties are added together.

(8) Violation(s) committed during the period when an individual's license is suspended or revoked shall be subject to the maximum civil penalty of seven thousand five hundred dollars and/or revocation of the license for a period of up to five years. Violation(s) committed by unlicensed individuals are subject to the provisions of this chapter, including the penalty provision.

[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, 16-228-1120, filed 10/20/99, effective 11/20/99.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
NEW SECTION
WAC 16-228-1125   Revocation and denial of licenses -- Actions against licenses only.   (1) The department retains the sole discretion to determine when an individual license should be revoked rather than suspended. Revocation of a license shall be an option for the department in those circumstances where:

(a) The penalty schedule allows for revocation;

(b) One or more aggravating factors are present; and/or

(c) The duration of the licensure action exceeds six months.

In circumstances where the department determines revocation to be appropriate, the period of revocation shall be determined at the discretion of the department, but in no instance shall the revocation exceed five years.

(2) The department may deny an applicant a license when the applicant has committed a violation(s) of chapters 15.58 and 17.21 RCW and/or the rules adopted under those chapters. The duration of denial shall be determined based upon the penalty provisions of this chapter. In circumstances where the department determines denial to be appropriate, the period of denial shall not exceed five years.

(3) Nothing shall prevent the department from denying an applicant a license when the applicant has an outstanding civil penalty owed to the department from a previous violation(s).

(4) The department may, at its discretion, suspend a license without also seeking a civil penalty. Such circumstances include, but are not limited to, those incidents where a civil penalty is not available as an appropriate penalty pursuant to RCW 43.05.110. The appropriate period of suspension shall be determined from the penalty schedule.

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((Level of Violation	Adverse Effect(s)	Unknowingly			Knowingly
		Minimum	Median	Maximum	Minimum	Median	Maximum
First	a. Not probable	$100 and 1 day suspension	$200 and 3 days suspension	$300 and 5 days suspension	$200 and 3 days suspension	$300 and 5 days suspension	$400 and 7 days suspension
	b. Probable	$150 and 1 day suspension	$250 and 3 days suspension	$350 and 5 days suspension	$250 and 3 days suspension	$350 and 5 days suspension	$450 and 7 days suspension
Second	a. Not probable	$200 and 3 days suspension	$300 and 5 days suspension	$400 and 7 days suspension	$300 and 5 days suspension	$400 and 7 days suspension	$500 and 9 days suspension
	b. Probable	$300 and 3 days suspension	$350 and 5 days suspension	$450 and 7 days suspension	$350 and 5 days suspension	$450 and 7 days suspension	$550 and 9 days suspension
Third	a. Not probable	$400 and 10 days suspension	$700 and 15 days suspension	$1000 and 20 days suspension	$500 and 10 days suspension	$1000 and 20 days suspension	$1500 and 30 days suspension
	b. Probable	$500 and 10 days suspension	$1800 and 20 days suspension	$3000 and 25 days suspension	$700 and 20 days suspension	$2100 and 30 days suspension	$3500 and 40 days suspension
Fourth	a. Not probable	$600 and 15 days suspension	$1800 and 20 days suspension	$3000 and 25 days suspension	$700 and 20 days suspension	$2100 and 30 days suspension	3500 and 40 days suspension
	b. Probable	$700 and 20 days suspension	$2100 and 30 days suspension	$3500 and 40 days suspension	$800 and 30 days suspension	$2400 and 40 days suspension	$4000 and 50 days suspension
Fifth or More	a. Not Probable	$800 and 20 days suspension	$3400 and 40 days suspension	$6000 and 60 days suspension	$900 and 50 days suspension	$3700 and 60 days suspension	$6500 and 7 days suspension
	b. Probable	$900 and 50 days SUSPENSION OR DENIAL OR REVOCATION	$3700 and 60 days SUSPENSION OR DENIAL OR REVOCATION	$6500 and 70 days SUSPENSION OR DENIAL OR REVOCATION	$1000 and 50 days SUSPENSION OR DENIAL OR REVOCATION	$4250 and 70 days SUSPENSION OR DENIAL OR REVOCATION	$7500 and 90 days SUSPENSION OR DENIAL OR REVOCATION))

LEVEL OF VIOLATION	ADVERSE EFFECTS NOT PROBABLE			ADVERSE EFFECTS PROBABLE
	MINIMUM	MEDIAN	MAXIMUM	MINIMUM	MEDIAN	MAXIMUM
FIRST	$200 and or 2 days license suspension	$300 and or 3 days license suspension	$500 and or 6 days license suspension	$350 and or 5 days license suspension	$450 and or 7 days license suspension	$550 and or 9 days license suspension
SECOND	$350 and or 3 days license suspension	$500 and or 6 days license suspension	$1000 and or 9 days license suspension	$600 and 10 days license suspension denial or revocation	$1300 and 20 days license suspension denial or revocation	$2000 and 30 days license suspension denial or revocation
THIRD	$700 and or 4 days license suspension	$1000 and or 9 days license suspension	$2000 and or 12 days license suspension	$800 and 30 days license suspension denial or revocation	$2400 and 40 days license suspension denial or revocation	$4000 and 50 days license suspension denial or revocation
FORTH OR MORE	$900 and or 5 days license suspension denial or revocation	$2000 and or 12 days license suspension denial or revocation	$3000 and or 15 days license suspension denial or revocation	$1000 and 50 days license suspension denial or revocation	$4250 and 70 days license suspension denial or revocation	$7500 and 90 days license suspension denial or revocation

[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, 16-228-1130, filed 10/20/99, effective 11/20/99.]

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 00-22-073, filed 10/30/00, effective 11/30/00)

WAC 16-228-1150   Other dispositions of alleged violations.   Nothing herein shall prevent the department from:

(1) Choosing not to pursue a ((case administratively)) civil penalty, license suspension or license revocation.

(2) Issuing a ((warning letter or)) notice of correction in lieu of pursuing ((administrative action)) a civil penalty, license suspension or license revocation.

(3) Negotiating settlement(s) of cases on such terms and for such reasons as it deems appropriate. Prior violation(s) covered by a prior settlement agreement may be used by the department for the purpose of determining the appropriate penalty for the current alleged violation(s) if not prohibited by the agreement.

(4) Referring violations or alleged violations, to any federal, state or county authority with jurisdiction over the activities in question, including but not limited to the Environmental Protection Agency (EPA) and the Federal Aviation Administration (FAA).

[Statutory Authority: Chapters 15.58, 17.21 RCW. 00-22-073, 16-228-1150, filed 10/30/00, effective 11/30/00. Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, 16-228-1150, filed 10/20/99, effective 11/20/99.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
REPEALER

     The following section of the Washington Administrative Code is repealed:

WAC 16-228-1140

Penalty assignment schedule -- Table B.

Washington State Code Reviser's Office