Current through Register Vol. 63, No. 9, September 1, 2024
(1) The amount of
civil penalty per violation shall be the lesser of $5000 or the amount
determined by the formula $B(C x P) + ($B x D x R) where:
(a) $B is a base fine established by type of
violation in section (2) of this rule;
(b) C is cooperation;
(c) P is prior knowledge or prior
violations;
(d) D is damage to
protected resources; and
(e) R is
the extent of damage that cannot be corrected, or prevented in the future, even
though repairs are made.
(2) The base penalty value ($B) shall be
established as follows:
(a) A base penalty of
$100 shall be applied to violations of a type where the operator fails to
notify the State Forester of intent to operate or fails to submit a required
written plan or obtain written approval of a plan for an alternate
practice.
(b) A base penalty of
$250 shall be applied to:
(A) Violations of
any rule or statute which requires or sets standards for accomplishing
reforestation.
(B) Violations
involving a failure to comply with the terms or conditions of any order of the
State Forester issued in accordance with ORS
527.680.
(C) Violations of a type where the operator
fails to comply with any term or condition of an approved plan for an alternate
practice.
(D) Violations where the
State Forester determines that an operator has intentionally failed to notify
the State Forester of intent to operate, notwithstanding subsection (2)(a) of
this rule.
(E) All other violations
of forest practice rules or statutes not specifically described in section (2)
of this rule.
(c) A base
penalty of $1000 shall be applied to violations of any rule or statute which
sets a maximum size for harvesting operations.
(3) The cooperation value (C) shall be
determined by the State Forester after reviewing whether the operator is taking
all feasible steps or procedures necessary or appropriate to correct the
violation for which the penalty is being assessed. The value shall be assigned
as follows:
(a) A value of 0.5 shall be
assigned when, in the judgment of the State Forester, the operator takes
substantial initiative to correct the damage or problem that led to the
violation. Substantial initiative may include, but is not limited to, reporting
the violation before it is discovered, initiating effective repairs without
having to be directed, or making substantive changes in operating procedures
designed to identify and avoid potential recurrences.
(b) A value of 1 shall be assigned when the
operator cooperates in following the direction of the State Forester by
immediately ceasing further violation and taking prompt action to repair damage
or correct any unsatisfactory condition where deemed feasible by the State
Forester.
(c) A value of 2 shall be
assigned when the State Forester determines that the operator does not
immediately cease further violation, is evasive upon attempts to make necessary
communications, or neglects to take necessary and timely action to repair
damage or correct any unsatisfactory condition.
(4) The prior knowledge value (P) shall be
determined by the State Forester after reviewing department records of
citations, operation notification or operation inspections. A value from 0.5
through 10 shall be assigned as follows:
(a) A
value of 0.5 is appropriate when the operator has little or no prior knowledge
of the Oregon Forest Practices Act but has cooperated in ceasing violation and
correcting unsatisfactory conditions.
(b) A value of 1 is appropriate when the
operator has general knowledge of the Oregon Forest Practices Act and rules,
but has not had significant past experience with the practice in question, or
has significant past experience with the practice, but the violation is
determined by the State Forester to be inadvertent or accidental.
(c) A value of 2 is appropriate when the
operator has had significant past experience with a practice or condition, or
has had specific correspondence or conversation with department personnel about
the required practices or actions involved in the violation, before the
violation.
(d) A value of 4 is
appropriate when the State Forester has issued a written statement of
unsatisfactory condition to the operator for the violation and timely
corrective action was not taken.
(e) A value from 3 through 5 is appropriate
when the operator has received citations for any other forest practice rule or
statute within the past three years.
(f) A value from 5 to 10 shall be assigned
when the operator has been cited within the past three years for a violation of
the same forest practice rule, statute, or condition; or in a case of failure
to comply with an order to cease further violation, or order to repair damage,
or order to correct an unsatisfactory condition (ORS
527.680(2)).
(5) The damage value (D) shall be
determined by the State Forester as a measure of extent or relative adverse
effect of damage. The specific value applied shall be based on the
pre-operation condition of the site, if known, the severity and extent of
damage associated with the violation, and any potential economic gain to any
involved operators. The damage value should be consistent with the policy of
deterring future violations. A value from 0 through 20 shall be assigned. The
following shall guide the State Forester's determination:
(a) A value of zero shall be assigned when
the violation has not resulted and will not result in resource
damage.
(b) A value of 1 shall be
assigned when the adverse effects of the violation left uncorrected are minor
and the affected resources will naturally self-restore within one year.
Example: Siltation from exposed soil flows into the upper
reaches of a stream, but the site will naturally revegetate within the next
growing season, preventing further siltation.
(c) A value from 2 to 5 shall be assigned
when the damage from the violations left uncorrected is more serious than
described in subsection (b) of this section, but the affected resources will
self-restore naturally within five years.
Examples: A small volume debris avalanche is caused by road
construction material placed in an unstable location and the debris comes to
rest in a fish-bearing or domestic use water; or logs are skidded across a
stream without an adequate temporary crossing leaving ruts and disturbed soil
areas that will flow muddy water directly into the stream.
(d) A value from 5 through 10 shall be
assigned when the damage from the violation left uncorrected is major in
relative effect, with natural self-restoration taking up to 10 years. A
consideration in selecting a value from 5 to 10 may include, but is not limited
to the size of the area affected.
Examples: Failure to reforest five acres may be assigned no
less than a 5, while failure to reforest 50 acres may be assigned a 10. Removal
of understory vegetation along 500 feet of a small stream may be assigned a
10.
(e) A value from 5
through 20 shall be assigned when damage is the result of harvest or
destruction of trees or snags required to be maintained; or when the damage
from the violation left uncorrected is major in relative effect, with
self-restoration taking more than 10 years.
Example: Severe riparian management area soil disturbance,
combined with the total harvest or destruction of what had been a fully stocked
stand of trees required to be maintained, along more than 500 feet of a small
stream may be assigned a factor of 20.
(6) The repair value (R) shall be assigned by
the State Forester as a measure of the relative extent of the damage that is
corrected or prevented through timely corrective action. The value shall be set
by the State Forester between 0 and 1, inclusive and expressed as a decimal.
The decimal indicates the degree of damage that already occurred and future
damage that cannot be prevented, even after the repairs are completed as
directed in the repair order.
Example: A tractor crossed a stream with no temporary
structure, breaking the stream banks down, leaving exposed skid trails which
eroded, creating turbidity, and leaving visible sediment in the stream. With no
repairs, the stream bank and skid trails would revegetate in 4 years. The
landowner performed all repairs as ordered, including mulching, placing
rip-rap, and building waterbars. In the State Forester's judgement, compliance
with the repair order will prevent all but 20% of the potential damage expected
over the next 4 years. Therefore R equals 0.20. If repairs are not feasible or
are not completed, R equals 1.0.
Statutory/Other Authority: ORS
527.710 & 526.016
Statutes/Other Implemented: ORS
527.674 &
527.685
