WSR 00-21-097

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed October 18, 2000, 9:49 a.m. ]

Supplemental Notice to WSR 00-17-138.

Preproposal statement of inquiry was filed as WSR 99-11-058.

Title of Rule: Rules relating to the pesticide penalty matrix, WAC 16-228-1100 through 16-228-1160.

Purpose: The rule ensures a fair and uniform method when assessing penalties for violations of the pesticide laws and rules. The proposed changes simplify and provide additional clarification to the existing rule. Changes will also provide an increased level of deterrence.

Statutory Authority for Adoption: Chapters 15.58 and 17.21 RCW.

Statute Being Implemented: Chapters 15.58 and 17.21 RCW.

Summary: Three previous hearings have been held related to the penalty matrix. As a result of testimony from these hearings this proposal differs from the previous proposal in several areas. Specifically this proposal reduces the amount of civil penalty and license suspensions when violations do not result in an adverse effect as compared to the previous proposal. This proposal also creates a new section entitled "Issuance of a civil penalty without first issuing a notice of correction." This section was added to clarify when the department may impose a civil penalty. This section also spells out the requirements of chapter 43.05 RCW. This proposal also makes minor changes for purposes of clarity in WAC 16-228-1120(7) and 16-228-1150. The primary purpose of these rules is to clarify and simplify the existing matrix. This is accomplished in part by consolidating the existing two matrices into one and eliminating the knowledge element as a factor. The amendments repeal the first level of violation, leaving only four levels on the matrix. The amendments also clearly separate days of license suspension from monetary fines by adding the words and/or in the first level of violation providing flexibility for WSDA.

Reasons Supporting Proposal: To provide clarification, to update and adjust penalties, and to increase deterrence effectiveness.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Cliff Weed, 1111 Washington Street, Olympia, WA 98504, (360) 902-2036.

Name of Proponent: Department of Agriculture, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The penalty matrix rule was originally established to provide an effective deterrent in relationship to the nature and magnitude of the violation. Specifically, the proposed changes to the rule clarify the manner in which a penalty is assessed. The changes also provide for slightly higher civil penalties and license suspensions. The proposal allows for the revocation of a license sooner than allowed by the existing matrix. The proposed changes will provide a greater level of deterrence and allow the department a better method to deal with repeat violators in a more effective manner.

Proposal Changes the Following Existing Rules: Definitions of "knowingly" and "unknowingly" are repealed, definitions of "civil penalty," "technical assistance" and "notice of correction" are added. A provision (aggravating factor) is added for "actions against licenses only" without also seeking a civil penalty. Two penalty assignment schedules are combined into one schedule, the first level of violations is repealed, and penalty determination is clarified. A new section is added to clarify notices of correction. Other proposed changes include adding specific language concerning the length of license revocation, new language to address violations committed during a license suspension/revocation, and a new section concerning licensing actions only.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The imposition of civil penalties and/or license suspensions on violators of the state pesticide laws and rules does not disproportionally impact small businesses. There is nothing mandatory in these rules that would require any business to expend additional funds to comply with these rules. Rather, the only way businesses will be effected by these rules would be if they violated the pesticide laws and rules. Therefore, no economic impact consideration is necessary.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in section 201.

Hearing Location: Four DIS Interactive Technologies sites simultaneously via teleconference 1107 S.W. Grady Way, Suite 112, Renton, WA 98055; 710 Sleater-Kinney Road S.E., Suite Q, Lacey, WA 98503; North 1101 Argonne, Suite 109, Spokane, WA 99201; and 15 West Yakima Avenue, Suite 220, Yakima, WA 98902; on November 21, 2000, at 6:00 p.m.

Assistance for Persons with Disabilities: Contact Laurie Mauerman by November 13, 2000, TDD (360) 902-1996.

Submit Written Comments to: Cliff Weed, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2093, by November 22, 2000.

Date of Intended Adoption: December 8, 2000.

October 18, 2000

Bob Arrington

Assistant Director


AMENDATORY SECTION(Amending WSR 99-22-002, filed 10/20/99, effective 11/20/99)

WAC 16-228-1110
Definitions -- Penalty assignment.

In addition to the definitions set forth in RCW 17.21.020, 15.58.030, and WAC 16-228-1010, the following shall apply to WAC 16-228-1100 through 16-228-1150:

(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 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.
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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AMENDATORY SECTION(Amending WSR 99-22-002, filed 10/20/99, effective 11/20/99)

WAC 16-228-1120
Calculation of penalty.

(1) Median penalty selection. In the disposition of administrative cases, the department shall ((determine the penalty by first determining)) use the penalty assignment schedule ((table)) listed in ((either)) WAC 16-228-1130 ((or 16-228-1140 that is applied based on the type of violation alleged)) to determine appropriate penalties. The department shall ((then determine the)) calculate the appropriate penalty ((range)) based on the level of violation((,)) and the adverse effect(s) or potential adverse effects at the time of the incident(s) giving rise to the violation((, and the knowledge of the alleged violator)). The median penalty ((is then selected as the penalty)) shall be assessed unless a proportionate adjustment is ((required)) warranted and/or there are aggravating or mitigating factors ((as provided herein)) present. The median penalty ((under Table A)) as listed in WAC 16-228-1130 may be proportionately adjusted and/or aggravated to a level more than the maximum penalty listed for the violation in the penalty assignment schedule table. The median penalty under ((Table B listed in WAC 16-228-1140 may be proportionately adjusted and/or aggravated to a level more than the maximum penalty listed for the violation. The median penalty under Table A and B)) The median penalty under the penalty assignment schedule may not be proportionately adjusted and/or mitigated to a level less than the minimum penalty listed for the violation.

(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.

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 16-228-1125
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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AMENDATORY SECTION(Amending WSR 99-22-002, filed 10/20/99, effective 11/20/99)

WAC 16-228-1130
Penalty assignment schedule(( -- Table A)).

((Pesticide use, application, disposal, licensing, distribution, recommendation, and label violations)) This assignment schedule shall be used for violations of chapter 17.21 or 15.58 RCW or chapter 16-228 WAC. (See WAC 16-228-1150 for other dispositions of alleged violations, including ((warning letters)) Notice of Corrections.)

((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 icense 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 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.
AMENDATORY SECTION(Amending WSR 99-22-002, filed 10/20/99, effective 11/20/99)

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)) 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 15.54, 15.58 and 17.21 RCW. 99-22-002, 16-228-1150, 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.
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