Current through Register Vol. 63, No. 9, September 1, 2024
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.
Statutory/Other Authority: ORS
527.710,
526.016, Section 2(1), Chapter
33, Oregon Laws 2022
Statutes/Other Implemented: ORS
527.685
