WAC 16-200-7404   Calculation of a civil penalty.  (1) In the disposition of administrative cases, the department shall use the penalty assignment schedules listed in WAC 16-200-7407 to determine the appropriate penalty. The department shall calculate the appropriate penalty 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. The median penalty shall be assessed unless an adjustment is warranted due to aggravating or mitigating factors. The median penalty may be adjusted to a level greater than the maximum penalty listed for the violation in the penalty assignment schedule table, but shall not exceed seven thousand five hundred dollars per violation. The median penalty may be adjusted to a lesser amount due to mitigating factors, but not less than the minimum penalty listed for the violation.

     (2) Adjustment of median penalty.

     (a) The department reserves the right to increase the civil penalty when certain aggravating factors are present. Such aggravating factors include, but are not limited to:

     (i) Situations where the civil penalty assessed is not substantially equivalent to the violator's economic benefit derived from the violation;

     (ii) The number of separate alleged violations contained within a single notice of intent;

     (iii) 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);

     (iv) The similarity of the current alleged violation to previous violations committed within the last three years;

     (v) The extent to which the alleged violation is part of a pattern of the same or substantially similar conduct.

     (b) The department also reserves the right to decrease the civil penalty when certain mitigating factors are present. Such mitigating factors include, but are not limited to:

     (i) Situations involving voluntary disclosure of a violation;

     (ii) Situations involving a low magnitude of the harm, or potential harm, including quantity and/or degree, caused by the violation;

     (iii) 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.

     (3) 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 civil penalty. The penalties are added together.

     (4) Violation(s) committed during the period when a bulk fertilizer distribution license is denied or canceled shall be subject to the maximum civil penalty of seven thousand five hundred dollars and/or cancellation of the bulk fertilizer distribution license for a period of up to five years.



[Statutory Authority: Chapters 15.54, 34.05 RCW. 03-02-100, § 16-200-7404, filed 1/2/03, effective 2/2/03.]