Kate Brown, Governor Case Number: 160554 Case Name: Wilbur Ellis / Hayes Case Closed Overview Investigator Case Reviewer Manager Jennifer Marin Date Started 05/17/2016 ROL Sent? Yes No Date Completed Date ROL Sent Date of Referral Referral to Another Agency? List Test(s) Requested clopyralid, sulfometuron methyl Number of Samples Taken 9 Number of Samples Analyzed Complaint? Yes No Sample Type Refer to PARC? Yes No Cease & Desist Yes No LOA Yes No Type of Investigation AUF Verified Compliance? Yes No Suspected Violation? Related Cases Date Reviewed Date Case Completed Sixty Days 07/16/2016 One Hundred Twenty Days 09/14/2016 Tracking Devices Nature Andrea Sonnen 5/27/16 Air Animal Soil Swab Water Yes Veg Other No Parties Involved Parties Involved Complainant Last / Business Name Address City First Hayes Peter License # State Zip Phone 97210 971-678-9466 License Type Expiration Date County Category 2330 NW Belgrave Ave Portland OR Washington email: peter_hayes@comcast.net Operator WILBUR ELLIS CO BRANCH 417400 PO BOX 750 NAPAVINE AG-L1021266CPO CPO 12/31/2016 WA 98565 360-262-3197 Lewis AgH, AgIF, AQ, FOR, TOIF, TOH, ROW Applicator FRANSEN COREY AG-L1039265APA PO BOX 750 NAPAVINE APA 12/31/2016 WA 98565 360-262-3197 Lewis AerRotor Property owner Stimson Lumber Company 49800 SW Scoggins Valley Rd Gaston OR 97119 503-359-3413 Washington # is direct line to Resources Manager - Scott Gray 1. Andrea Sonnen 5/27/16 Application Information Date of Application 5/17/2016 Start Time 0948 End Time 1054 Time of Day morning Application Note Category Forest Location of Application Timber, OR; Stimson land Specific Site/Crop Forestry, conifer release Rate of Application (mixing rate, diluent, rate per area, etc) Purpose control vegetation Method of Application aerial (aircraft registration number 620LH) Pesticides Involved Type Manufacturer 2. Trade Name Andrea Sonnen EPA Reg. No. 5/27/16 Active Ingredients Pesticides Involved Type Manufacturer Trade Name EPA Reg. No. Active Ingredients Herbicide Herbicide Surfactant Alligare Alligare Wilbur-Ellis Clopyralid 3 SFM 75 In-Place 81927-14 81927-26 Clopyralid Sulfometuron methyl Modified vegetable oil, aliphatic mineral oil 3. Andrea Sonnen 5/27/16 Narrative *DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT * May 17, 2016 The Pesticide Analytical and Response Center (PARC) received notice of a complaint from Oregon Department of Agriculture (ODF) Forest Grove District Forester Mike Cafferata, regarding a forestry pesticide application in Timber, OR, the morning of May 17, 2016. The complainant, Peter Hayes, claimed he and three others were working on his property while a pesticide application to a Stimson Lumber unit roughly half a mile away was being conducted. Per Hayes, the wind was blowing 10-15 mph and the four individuals could smell and taste product. ODA's Lead Pesticide Investigator, Mike Odenthal, forwarded related correspondence to me, Jennifer Marin, and Isaak Stapleton to follow up with parties involved. I called Hayes to get more information and arrange a time to meet and left a voicemail. I followed up with an email, as well. I called Stimson Lumber Company and spoke with Western Resource Manager Scott Gray. He explained he had already been in contact with Hayes and was well aware of the complaint. I asked who conducted the application and he said Wilbur-Ellis, out of Chehalis. I asked if he had an application record and he explained he had a record provided by Wilbur-Ellis as well as an internal record maintained by Stimson staff. I asked if he could email a copy of both records and he agreed, forwarding both records shortly thereafter. I explained the process going forward and the potential of taking environmental samples. Gray was very supportive, saying, "Yes, please take samples!" I thanked him for his help. I called Wilbur Ellis - Chehalis branch and spoke with Branch Manager Dan Foster. He, too, had already heard about the complaint. He informed me Corey Fransen was the pilot conducting this application. I asked if their helicopters were equipped with GPS systems that track the flight/spray path. He stated they did and he would have Fransen forward those files to me as soon as possible. Foster was very cooperative and positive. He stated he stood by the application and his applicators. I thanked him for his time. Hayes returned my call and provided the following information: -During the aerial application, he had been working on forest land he owned (Hyla Woods/Hayco LLC) -3 additional people were working on his land as well: wife-Pam Hayes and renters/caretakers Jeremy Milton and Emily Shriener) -All 4 individuals were working separately and independently noted a chemical smell; a couple claimed to taste it -Hayes stated he drove up Timber Rd to see where it might be coming from and saw the helicopter -Hayes stated there was a north wind and he could hear gusts of wind and saw the trees and other vegetation moving; he took various movie clips on his phone 4. Andrea Sonnen 5/27/16 Narrative I explained how the Department would like to proceed with a site visit and the potential for environmental samples. He said his schedule may not allow him to be present but Milton and Shriener were always on site and he gave me Milton's phone number to arrange a time to meet. I told him I was going to email him a copy of the ODA complaint form and asked him to complete it and send it back. I asked if he and the other individuals might be interested in filing a Report of Loss (ROL). He said it couldn't hurt and I said I would forward a copy of that as well. Later in the evening, Hayes forwarded various video clips taken on his phone. Fransen forwarded a zip file containing the application shape file and GPS spray lines. May 18, 2016 I called Milton to arrange a time to meet at the Hayes property. We agreed on Thursday, May 19, 2016, around 10 am. He provided directions and I thanked him for his help. I called Gray and informed him of our plan to visit the complainant's property and potentially sample. I asked if someone from Stimsom would be around to allow us access on the treatment site to sample. He stated Rodney Jacobs would be available and provided me his phone number. I said we were meeting the complainant at 10 am, and would call when we were heading to Stimson. ODA GIS Coordinator Diana Walker helped me download the shape file with the spray lines/no spray lines into one pdf file. I forwarded the file to Cafferata, in case it might be helpful to the ODF case. Cafferata called and thanked me for sharing the shape file/spray map. I mentioned Stapleton and I were going to be in the area on Thursday, May 19, to see the incident site, meet with some individuals invovled and potentially take samples. He expressed interest in accompanying us. We all planned on meeting at 10 am at the Hayes property. Stapleton had to respond to another obligation and ODA Case Reviewer Michael Babbit stepped in to accompany me. Babbit pulled up a map of the taxlots in the area of the incident, from which we discovered one property fell in between the Stimson and Hayes properties. May 19, 2016 Hayes forwarded me the completed ODA Complaint Form. Babbit and I arrived at the Hayes property shortly after 10 am. We were greeted by Hayes, Cafferata, Milton and Shriener. We provided identification and passed out business cards to all parties. We convened in a cabin on the property. Hayes had printed off a map indicating where each individual was working when they began to smell/taste product as well as a chronology of the morning: " -After 9:30 - Pam, Peter, Emily, and Jeremy each working in different areas -Peter senses smell and hears helicopter -Rock truck arrives and Peter rides with it to spread rock -Returns to find Pam and Emily talking 5. Andrea Sonnen 5/27/16 Narrative -Pam and Peter drive down to confirm source -10:10 - arrived at site -10:12-10:15 - took video of spray operation -10:24 - took video of moving trees back at cabin -Ca. 10:30 - placed calls to Stimson and ODF in hopes of stopping operation until wind dropped - left messages. Calls returned after operation was complete " Hayes mentioned he recorded his wife telling her account of the incident and we discussed having the recording sent and included in the case file. I asked if Hayes knew who owned the property in between his and the Stimson property. He explained the owner was Marshall Hauck owned the land, which was managed by Trout Mountain Forestry with Scott Ferguson as a contact. Milton and Shriener expressed their concerns with the aerial application and drift affecting their organic garden and their health, as they live their year-round. While they found the application notification posting after-the-fact, they stated it was not clearly visible and hardly legible. Moreover, they do not leave the property often and would not come across such a posting anyway. They explained they would appreciate being notified. Cafferata explained it was not a requirement to post application notifications and as a policy, Stimson mails notifications out to owners within 1000 feet of their property. He mentioned it may be possible to look into having them increase the 1000 foot boundary. Hayes explained his concerns with exposure thresholds and exposure by inhalation. He also expressed concern for wildlife which might be exposed due to drift. He provided a list of 68 bird species found on his land. Babbit and Cafferata acknowledged the challenge and limitations to regulation. They also explained the involvement of the Departments of Environmental Quality and Fish and Wildlife when pesticide exposure to water or endangered wildlife is evident. Babbit addressed ODA's interest in animal exposure, explaining past cases involving animals and ability to act on off-target pesticide exposure determined through testing for the presence of active ingredients, down to levels of 10 ppb. This brought up the issue of inert ingredients. It was explained inert ingredients are often responsible for any odor, rather than the active ingredient and, as with all ingredients, individuals have different tolerances to inerts. I asked if Hayes, Milton or Shriener intended to complete the ROL. Babbit explained the ROL in more detail and the parties stated they would discuss amongst themselves and determine whether or not they would complete the report. We began to discuss sampling. When asked if Hayes applied any pesticide products to his land within the last year, he said he used triclopyr about a year ago in select areas. Hayes called Ferguson, placed him on speaker, and requested we have permission to sample on the Hauck property. He granted permission. Sampling Plan 6. Andrea Sonnen 5/27/16 Narrative We determined a gradient vegetation sampling method, working from the Hayes property toward the application site, would be best to prove/disprove the occurrence of drift. We aimed to select relatively open areas that would not have been as protected by a canopy. Additionally, we selected sampling sites on the Hayes property near locations where individuals were working and around the garden. With permission, two samples were taken on the intervening Hauck property, and one sample was taken from the Stimson treatment site. AUF160554-1 - Vegetation around cabin; Hayes property; GPS point 048 AUF160554-2 - Vegetation around site where Shriener was mowing; Hayes property; GPS point 049 AUF160554-3 - Vegetation around west garden; Hayes property; GPS point 050 AUF160554-4 - Vegetation around east garden; Hayes property; GPS point 051 AUF160554-5 - Vegetation around pond in clearing; Hayes property; GPS point 052 AUF160554-6 - Vegetation from north and south sides of Lousignont Rd; Hauck property; GPS points 053-054 AUF160554-7 - Vegetation from north end of Hauck property; GPS point 055 AUF160554-8 - Vegetation from treatment site; GPS points 056-057 AUF160554-9* - Vegetation from right of way on NW Timber Rd; GPS points 058-059 *After we began sampling, Cafferata noticed some vegetation damage along the right of way on NW Timber Rd, across from the Hayes entryway. After sampling the Hauck property, we drove back near the Hayes property to look at the roadside vegetation showing herbicide symptoms. Babbit explained the counties are generally responsible for roadside maintenance and we would be in contact with Washington county to obtain application records. We initiallly did not intend to sample from that location. We continued to the treatment site for our final sample. After collecting from the treatment site, Cafferata inquired about the Timber Rd right of way; he stated it was his impression that Hayes did not think the county treated that road and thought the damage was a result of the application to the Stimson property. Gray was concerned about that claim, therefore, we decided to take a sample of the damaged vegetation along the roadside and test for the actives involved in the Stimson application. May 20, 2016 7. Andrea Sonnen 5/27/16 Narrative I called the Washington County Road Maintenance and spoke with Brian Irish. He stated Washington County contracts various parties to perform roadside maintenance in different areas, but confirmed the stretch on Timber Rd was maintained and treated annually. He was not aware when the last application took place or what products were used, but assured me he would get the information to me. Shortly thereafter, Aaron Clodfelter, Senior Engineer, called and informed me Aklin Vegetation Management LLC was contracted to maintain Timber Rd. He stated the last application was conducted May 9, 2016, and Roundup Pro, Esplanade 200SC and Milestone were products used with a Syl-Tac adjuvant. He forwarded me the record. I searched the ODA licensing database and verified Aklin Vegetation Management LLC has a valid commercial pesticide operator license (AG-L1030298CPO) with AQ, FOR and ROW categories. Applicator, Garry Aklin, also maintains a valid commercial pesticide applicator license (AG-L0170367CPA) with AQ, FOR and ROW categories. Hayes called to ask a few quesions regarding adjuvants/surfactants and their toxicity. I pulled up the surfactant used in the application May 17th. I gave him the name and manufacturer and read the warning, precautionary statement and first aid from the label. He asked if the lab tested for these products and I said they did not. Shortly after speaking to Hayes, he sent an email with additional questions about analysis of synergistic effects of mixing the various chemicals in the application. I asked Babbit for input and he stated he would call Hayes to address the question. May 23, 2016 Samples were sent to the ODA laboratory via shuttle. I received a call from Foster, stating Hayes had been calling Wilbur-Ellis headquarters in Denver. Hayes stated the tissue samples came back and tested positive for In-Place. I explained I did tell Hayes In-Place was used in the application mix, however, the samples had not been analyzed yet and we do not test for adjuvants. May 24, 2016 I received an email from Records Review License Review Label Review * DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT * 8. Andrea Sonnen 5/27/16 Attachments Attachment Name 2016 Washington County application record application notification application notification image Application record Birds list - found on Hayes property Cafferata email to PARC case notes Chronology - Hayes Clodfelter email Clopyralid 3 label - Alligare Corey Fransen email Dan Foster (Wilbur Ellis) spray record email follow up email from Gray Follow up emails - Hayes Hayes - video 1 Hayes - video 2 Hayes - video 3 Hayes - video 4 Hayes maps Map - close up Hauck/Stimson property GPS points Map - close up Hayes property GPS points Map of taxlots Map with all GPS points ODA Complaint Form Pam Hayes recording PARC referral Peter Hayes - initial emails Photos Scott Gray (Stimson) Internal spray record email Scott Gray (Stimson) WE spray record email SFM 75 label - ODA Shape file/GPS spray & no spray lines map Stimson internal record Unit map Zip file from Corey Fransen 9. Type Records Correspondence Photos Records Misc. Correspondence Case notes Misc. Correspondence Label Correspondence Correspondence Correspondence Correspondence Video Video Video Video Maps Maps Maps Maps Maps Forms Misc. Correspondence Correspondence Photos Correspondence Correspondence Label Maps Records Maps Maps Andrea Sonnen 5/27/16