25 NAC 2-007. Fines and Penalties

007 Fines and Penalties. The department case review process will determine the appropriate fine or penalty for each violation of the Pesticide Act in accordance with §2-2626(9), §2-2650 and any other applicable provisions of the act. 007.01 When it is determined that an administrative fine is an appropriate penalty for a violation of the Pesticide Act, the actual amount of such administrative fine is calculated by determining the base fine and making the necessary adjustments for gravity and the size of business as set forth in this section. The department may, however, issue any fine at the statutory maximum for any egregious violation. The base fines established for the specific violations of the Pesticide Act as set forth in Neb. Rev. Stat. §2-2646 are as follows: 007.01A A violation of 2-2646(1): 007.01A(1) Base fine for a first violation is $1,000. 007.01A(2) Base fine for a subsequent violation is $2,000. 007.01B A violation of 2-2646(2): 007.01B(1) Base fine for a first violation is $1,000. 007.01B(2) Base fine for a subsequent violation is $3,000. 007.01C A violation of 2-2646(3): 007.01C(1) Base fine for a first violation is $1,000. 007.01C(2) Base fine for a subsequent violation is $4,000. 007.01D A violation of 2-2646(4) or (5): 007.01D(1) Base fine for a first violation is $2,500. 007.01D(2) Base fine for a subsequent violation is $5,000. 007.01E A violation of 2-2646(6): 007.01E(1) Base fine for a first violation is $1,000. 007.01E(2) Base fine for a subsequent violation is $2,000. 007.01F A violation of 2-2646(7): 007.01F(1) Base fine for a first violation is $4,000. 007.01F(2) Base fine for a subsequent violation is $5,000. 007.01G A violation of 2-2646(8): 007.01G(1) Base fine for a first violation is $1,000. 007.01G(2) Base fine for a subsequent violation is $2,000. 007.01H A violation of 2-2646(9): 007.01H(1) Base fine for a first violation is $1,000. 007.01H(2) Base fine for a subsequent violation is $2.000. 007.01I A violation of 2-2646(10): 007.01I(1) Base fine for a first violation is $5,000. 007.01I(2) Base fine for a subsequent violation is $5,000. 007.01J A violation of 2-2646(11): 007.01J(1) Base fine for a first violation is $1,000. 007.01J(2) Base fine for a subsequent violation is $2,000. 007.01K A violation of 2-2646(12): 007.01K(l) Base fine for a first violation is $1,000. 007.01K(2) Base fine for a subsequent violation is $2,000. 007.01L A violation of 2-2646(13): 007.01L(1) Base fine for a first violation is $2,000. 007.01L(2) Base fine for a subsequent violation is $5,000. 007.01M A violation of 2-2646(14): 007.01M(1) Base fine for a first violation is $1,000. 007.01M(2) Base fine for a subsequent violation is $5,000. 007.01N A violation of 2-2646(15): 007.01N(1) Base fine for a first violation is $1,000. 007.01N(2) Base fine for a subsequent violation is $4,000. 007.01O A violation of 2-2646(16): 007.01O(1) Base fine for a first violation is $2,000. 007.01O(2) Base fine for a subsequent violation is $5,000. 007.01P A violation of 2-2646(17): 007.01P(1) Base fine for a first violation is $2,000. 007.01P(2) Base fine for a subsequent violation is $5,000. 007.01Q A violation of 2-2646(18). 007.01Q(1) Base fine for a first violation is $2,000. 007.01Q(2) Base fine for a subsequent violation is $5,000. 007.01R A violation of 2-2646(19) or (20): 007.01R(1) Base fine for a first violation is $2,000. 007.01R(2) Base fine for a subsequent violation is $5,000. 007.01S To violate any other provision of the act. 007.01S(1) Base fine for a first violation is $1,000. 007.01S(2) Base fine for a subsequent violation is $2,000. 007.02 Gravity adjustment criteria. The base administrative fine may be changed by considering the gravity of harm of the violation and the gravity of misconduct of the person committing the violation. The specific numerical value will be assigned to each category as set forth in the following charts: 007.02A Gravity of harm. Violation Circumstances Value Pesticide Toxicity - Category I pesticides, signal word "DANGER", restricted-use pesticides (RUP's) 2 General-use pesticides, toxicity - Category II, signal word "WARNING", and Categories III and IV, signal word "CAUTION." 1 Harm to Human Health Actual serious or widespread harm to human health. 5 Potential serious or widespread harm to human health. 4 Minor actual harm to human health. 3 Minor potential harm to human health, neither serious nor widespread. 2 Harm to human health is unknown 1 No actual or potential harm to human health 0 Environmental Harm Actual serious or widespread harm to the environment (e.g., damage or contamination to crops, certified organic crops, water, livestock, wildlife, wilderness, or other sensitive natural areas) 5 Potential serious or widespread harm to the environment. 4 Minor actual harm to the environment. 3 Minor potential harm to the environment, neither widespread nor substantial. 2 Harm to the environment is unknown 1 No actual or potential harm to the environment 0 007.02B Gravity of misconduct. Violation Circumstances Value Compliance History Two or more prior violations in previous three years of FIFRA or state law, either similar or unrelated to current violation. 3 One prior violation in previous three years of FIFRA or state law similar to current violation. 2 One prior violation in previous three years of FIFRA or state law unrelated to current violation. 1 No prior RFRA or Nebraska Pesticide Act violation. 0 Culpability Knowing or willful violation of the statute. Knowledge of the general hazardousness of the action. 4 Violation resulting from faulty, careless, or negligent action. 3 Culpability unknown. 1 Violation was neither knowing nor willful and did not result from faulty, careless, or negligent action. 0 Remedial Efforts Violator voluntarily notified NDA of incident or violation. -1 Violator instituted steps to correct the violation immediately after discovery or notification of the violation. -2 Violator immediately notified NDA of incident and instituted steps to correct the violation. -3 Financial Gain Noncompliance with Pesticide Act has or would have resulted in significant financial gain for violator. 3 No financial gain to violator as a result of violation. 0 007.02C To determine the total gravity value, the base fine is adjusted based on the total number of points calculated from 007.02A and 007.02B above and multiplying it by the gravity adjustment values. Adjustments for Gravity Total Gravity Value Adjustment 3 or below 25% of base value 4-6 50% of base value 7-10 75% of base value 11 or above 100% of base value 007.03 To determine the actual administrative fine, the fine as determined in 007.02C above is multiplied by the appropriate value corresponding with the size of business criteria set forth below. In determining the amount of any fine, there is a rebuttal presumption that the gross revenue from all sources of any violator is over $800,000. Size of Business Criteria Gross Revenue From All Sources Multiplier Value $0-200,000 0.2 $200,001-400,000 0.4 $400,001-600,000 0.6 $600,001-800,000 0.8 over $800,001 1.0 007.04 Nothing in these regulations prevent the department from entering into a settlement agreement with any person violating the Pesticide Act or the rules and regulations adopted and promulgated under it which specifies a different fine or penalty than specified in the act or regulation.