- - Department of Agrlculture . regon 635 Capitol St NE Kate Brown, Governor 58118111, OR 97301-2532 PESTICIDES PROGRAM TEL: 503-986-4635 MAIL September 1, 2016 Bill Hirata 7509 Clear Creek Road Parkdale, Oregon 97041 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and ODA PESTICIDES CASE NO. 160099 - This is a Notice of Imposition of Civil Penalty and Proposed/Final Order that is based on a pesticide investigation conducted by the Pesticides Program of the Oregon Department of Agriculture. This Notice addresses violation of Oregon Revised Statutes (ORS) Chapter 634. The action is taken pursuant to statutory and regulatory provisions including but not limited to ORS Chapter 183, ORS 634.900 et seq., Oregon Administrative Rules (OAR) Chapter 137, Division 3, and OAR 603-057? 0500 et seq. Also enclosed is information on contested case rights and procedures. This information is provided for your consideration should you select to contest the Notice and request an administrative hearing of this matter. Read all OLIDLNQILQG carefu_lly.- If you request a hearing in this matter, your request for hearing must be made in writing to the Oregon Department of Agriculture so that it is received by the Department within ten business days of the date that you receive the Notice. If you do not request a hearing this NOTICE will become the Final Order, and the Final Order shall constitute a judgment. Important Note: The Department has also issued separate proposed enforcement actions to the business, Hirata Orchards, Inc., and to Pedro Solis. Those proposed actions are specific to those parties. Their payment of penalty or request for a hearing would be separate from and have no bearing on your payment or response as an individual to your enforcement action, although hearing processes could be combined if multiple parties request hearings. ?zz. DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture In the Matter of: Bill Hirata an agricultural grower and pesticide applicator Notice of Imposition of Civil Penalty and Proposed/Final Order, for violation of the State Pesticide Control Act, ODA Pesticides Case No. 160099 The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $407.00 against Bill Hirata as authorized by statutory and regulatory provisions including, but not limited to, ORS 634.900 to ORS 634.915 and OAR 603-057-0500 to 603- 057-0532. The findings and conclusions on which this determination is based, and the criteria used to calculate the penalty, are set out below. I. APPLICABLE LAW 1. The applicable law includes the following: ORS Chapters 60 (corporations), 163 (administrative law), 561 (agriculture), 634 (pesticides); Oregon Administrative Rules (OAR) Chapter 137, division 3; and OAR Chapter 603, division 57. 2. Oregon?s pesticide control law is known as the State Pesticide Control Act and is codified in Oregon Revised Statutes (ORS) Chapter 634. 3. ORS 634.006(8) states: ?Pesticide? includes: ?Defoliant? Which means any substance or mixture of substances intended for causing the leaves or foliage' to drop from a plant with or without causing abscission; ?Desiccant? which means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue; ?Fungicide' which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any fungus; ?Herbicide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any weed; ?Insecticide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any insects which may be present in any environment whatsoever; ?Nematocide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating nematodes; (9) ?Plant regulator' which means any substance or mixture of substances intended, through physiological action, to accelerate or retard the rate of growth or rate of maturation or to otherwise alter the behavior of ornamental or crop plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants or soil amendments; or Any substance, or mixture of substances intended to be used for defoliating plants or for preventing, destroying, repelling or mitigating all insects, plant fungi, weeds, Bill Hirata - Civil Penalty, Proposed/Final Order Page 2 of 12 rodents, predatory animals or any other form of plant or animal life which is, or which the department may declare to be a pest, which may infest or be detrimental to vegetation, humans, animals, or be present in any environment thereof." 4. ORS 634.372(4) states person may not: Perform pesticide application activities in a faulty, careless or negligent manner." 5. The Department has responsibility and authority for the Pesticides program and may make any rule necessary for enforcement of program requirements. ORS 561.020; ORS 561.190; ORS Chapter 634. 6. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 7. ORS 634.900 et seq. authorizes ODA to impose civil penalties for violations of provisions of ORS Chapter 634. ORS 634.375 states: "The State Department of Agriculture may suspend, revoke or refuse to renew a license, certificate or other authorization issued to a person under this chapter if the person fails to pay a civil penalty under ORS 634.900 on or before 90 days after the date that the order imposing the civil penalty becomes final by operation of law or on appeal." 8. OAR 603-057-0500 et seq. provides formulae for calculating the civil penalties authorized by ORS 634.900. OAR 603-057-0502(7) states ?Civil penalties shall be due and payable ten (10) business days after the order becomes final by operation of law or on appeal. A person may pay a civil penalty before an order becomes final. Payment of a civil penalty before an order becomes final is an admission by the person of all of the allegations in the Notice of Imposition of Civil Penalty." 9. ORS Chapter 60 regulates corporations transacting business in Oregon. FINDINGS OF FACT ODA Pesticides Case No. 160099 1. This Notice of Violation results from a pesticide use investigation conducted by ODA in response to complaints alleging orchard worker exposure to pesticides at Hirata Orchards, Hood River County, Oregon. The persons in contact with ODA regarding this matter were president Bill Hirata and Pedro Solis. 2. Hirata Orchards, Inc. (Hirata Orchards) is an Oregon business corporation and agricultural grower with a principal place of business at 5005 Bassler Drive, Parkdale, Hood River County, Oregon. It grows pears at at least one location in the Hood River County area of Oregon. This agricultural operation involves the application of pesticides to growing crops. 3. Hirata Orchards operates through agents or employees, including Mr. Harata and Mr. Solis. Mr. Hirata is licensed by ODA as a Private Pesticide Applicator, license number AG- L0001629PAL. This license was issued in October of 1977. 4. On or about August 25, 2015 Mr. Hirata, in his capacity as senior agent or employee of Hirata Orchards, used an airblast sprayer to apply a pesticide onto about 30 acres of pear orchard on the southwest corner of Bassler Drive and Dee Highway, Hood River County, Oregon, about a mile north of Parkdale (the pear orchard). The pesticide Mr. Hirata applied here was: Bill Hirata - Civil Penalty, Proposed/Final Order - Page 3 of 12 Pristine Fungicide, EPA Reg. 7969-199, BASF Corporation, Research Triangle Park, North Carolina (active ingredients: pyraclostrobin, boscalid) For this application Mr. Hirata used an airblast sprayer, with eight TeeJet ceramic core and disc nozzles on each side. This pesticide application may be referred to herein as the Pristine application. 5. Also on or about August 25, 2015 Mr. Solis, in his capacity as agent or employee of Hirata Orchards, used an airblast sprayer to apply pesticides onto the pear orchard. The pesticides Mr. Solis applied here were: Delegate WG Insecticide, EPA Reg. No. 62719?541, Dow AgroSciences LLC, Indianapolis, Indiana spinetoram) Nuprid 2SC Soil/Foliar Insecticide, EPA Reg. No. 228-572, Nufarm Americas, Inc. Burr Ridge, Illinois imidacloprid) The airblast sprayer Mr. Solis used was similar to that used by Mr. Hirata. Mr. Solis' application may be referred to herein as the Delegate/Nuprid application. The Pristine and Delegate/Nuprid applications may be collectively referred to as the August 25 applications. 6. Pristine is labeled for use on pears in Oregon, its label states, under Precautionary Statements: Hazards to Humans and Domestic Animals CAUTION. Harmful if swallowed or absorbed through skin. Causes moderate irritation. Avoid contact with skin, eyes or clothing. And under Directions For Use, the Pristine label states: It is a violation of federal law to use this product in a manner inconsistent with its labeling. DO NOT apply this product in a way that will contact workers or other persons, either directly or through drift. Only protected handlers may be in the area during application. For any requirements specific to your state or tribe, consult the agency responsible for pesticide regulation. 7. Delegate WG is labeled for use on pears in Oregon, its label states, under Precautionary Statements: Hazards to Humans and Domestic Animals CAUTION Causes Moderate Irritation Avoid contact with skin, eyes or clothing. Wash thoroughly with soap and water after handling and before eating, drinking, chewing gum, or using tobacco. Under Environmental Hazards, the Delegate WG label states: Do not apply when weather conditions favor drift from treated areas. Apply this product only as specified ion the label. Under Directions for Use, the Delegate WG label states: It is a violation of Federal law to use this product in a manner inconsistent with its Bill Hirata - Civil Penalty, Proposed/Final Order - Page4of12 labeling. Read all Directions for Use carefully before applying. Do not apply this product in a way that will contact workers or other persons, either directly or through drift. Only protected handlers may be in the area during application. For any requirements specific to your state or tribe, consult the agency responsible for pesticide regulation. And under Application Directions, the Delegate WG label states: Do not apply Delegate WG in greenhouses or other enclosed structures used for growing crops. Proper application techniques help ensure thorough spray coverage and correct dosage for optimum insect control. The following directions are provided for ground and aerial application of Delegate WG. Attention should be given to sprayer speed and calibration, wind speed, and foliar canopy to ensure adequate spray coverage. Wind Direction and Speed Only apply this product if the wind direction favors on-target deposition. Do not apply when the wind velocity exceeds 15 mph. Wind speed must be measured adjacent to the application site on the upwind side, immediately prior to application. Temperature Inversion Do not make aerial or ground applications into temperature inversions. lnversions are characterized by stable air and increasing temperatures with height above the ground. Mist or fog may indicate the presence of an inversion in humid areas. The applicator may detect the presence of an inversion by producing smoke and observing a smoke layer near the ground surface. Droplet Size Use only medium or coarser Spray nozzles (for ground and non-ULV aerial application) according to ASABE Standard 8572 definition for standard nozzles. In conditions of low humidity and high temperatures, applicators should use a coarser droplet size. Exceptions may be indicated for specific crop groups. Apply Delegate WG in a manner that achieves uniform coverage of the entire crop canopy but not past the point of runoff. For optimum control of target pests, complete and uniform spray coverage is essential. The spray volume required to achieve complete and uniform coverage will depend upon tree size and shape, leaf size, and density, and the application equipment used. To determine the required spray volume per acre, contact your state agricultural experiment station, certified pest control advisor, or extension specialist for assistance. Use of tree row volume is appropriate. Groundboom Application For groundboom applications, apply using a nozzle height of no more than 4 feet above the ground or crop canopy. For groundboom and airblast applications, turn off outward pointing nozzles at row ends and when spraying the outer two rows. To minimize spray loss over the top of the crop canopy spray must be directed into the canopy. Calibrate airblast application equipment and operate in a manner that achieves full displacement of the air within the crop canopy with air containing spray droplets. 8. Nuprid 280 is labeled for use on pears in Oregon, its label states, under Precautionary Statements: Hazards to Humans and Domestic Animals CAUTION I PRECAUCION Harmful if absorbed through skin. Harmful if inhaled. Harmful if swallowed. Avoid contact with skin, eyes, or clothing. Avoid breathing spray mist. Bill Hirata - Civil Penalty, Proposed/Final Order - Page 5 of 12 Under Spray Drift Management, the Nuprid ZSC label states: The responsibility of avoiding spray drift is with the applicator. The applicator is responsible for considering weather related factors and the interaction of application equipment when making application decisions. Mixing and Loading Requirements The use of a properly designed and maintained containment pad for mixing and loading of any pesticide into application equipment is recommended. If containment pad is not used, maintain a minimum distance of 25 feet between mixing and loading area and potential surface to groundwater conduits such as field sumps, uncased well heads, sink-holes, or field drains. Importance of Droplet Size The droplet size is an important factor and can influence drift. Small droplets (<150 200 microns) drift to a greater extent than large droplets. Applications typically should be made to deliver the largest droplet range that provides adequate control and coverage. Formation of very small droplets may be minimized by appropriate nozzle selection. Wind Speed Restrictions Drift potential increases at wind speeds of less than 3 (due to inversion potential) or more than 10 mph. However, many factors, including droplet size, canopy and equipment specifications determine drift potential at any given wind speed. DO NOT apply when winds are greater than 15 and avoid gusty and windless conditions. Restrictions During Temperature lnversions DO NOT make ground applications during temperature inversions. Drift potential is high during temperature inversions. Temperature inversions typically restrict vertical air mixing, which then could cause small suspended droplets to remain close to the ground and move laterally in a concentrated cloud. Temperature inversions typically are characterized by increasing temperature with altitude and are common on nights with limited cloud cover and light to no wind. They begin to form as the sun sets and often continue into the morning. Their presence can be indicated by ground fog; however if fog is not present, inversions can also be identified by the movement of smoke from a ground source. Smoke that layers and moves laterally in a concentrated cloud (under low wind conditions) indicates an inversion, while smoke that moves upward and rapidly dissipates indicates good vertical mixing. Airblast (Air Assist) Specific Instructions for Tree Crops and Vineyards Airblast Sprayers carry droplets into the canopy of trees/vines via a radially, or laterally directed air stream. Follow these spray drift management practices: - Adjust deflectors and aiming devices so that spray is only directed into the canopy; - Block off upward-pointed nozzles when there is no overhanging canopy; - Use only enough air volume to penetrate the canopy and provide good coverage; - DO NOT allow the spray to go beyond the edge of the cultivated area turn off sprayer when turning at end rows); - Only spray inward, toward the orchard or vineyard, for applications to the outside rows. And under Directions for Use, the Nuprid ZSC label states: It is a violation of Federal law to use this product in any manner inconsistent with its labeHng. DO NOT apply this product in a way that will contact workers or other persons, either directly or through drift. Only protected handlers may be in the area during application. For any requirements specific to your State or Tribe, consult the agency responsible for Bill Hirata - Civil Penalty, Proposed/Final Order Page 6 of 12 pesticide regulation. 9. On or about August 27, 2016 an anonymous complainant/s reported, through the Oregon Occupational Safety and Health Division (OR-OSHA), that orchard pesticide sprays had impacted worker residences at Hirata Orchards. 10. On September 2 and 3, 2015, ODA went to the pear orchard, interviewed workers, Mr. Hirata, and Mr. Solis, and collected samples from two worker housing locations, one at 5051 Bassler Drive (the Bassler residence), and one at 6820 Dee Highway (the Highway residence). The following samples were collected September 3, 2015: Sample number Description 160099-1C control swab, Bassler residence 160099-20 control swab, Bassler residence 160099-30 control swab, Bassler residence 160099-4 swab, Bassler residence, dish receiver 160099-5 swab, Bassler residence, window 160099?6 swab, Bassler residence, window 160099-7 squash leaves, Bassler residence back yard 160099-8 ornamental leaves, Bassler residence front yard 160099-9 treated pear leaves from pear orchard 160099-10 treated pear leaves from pear orchard 160099?1 10 control swab, Highway residence 160099-120 control swab, Highway residence 160099-130 control swab, Highway residence 160099?14 swab, Highway residence, trailer siding 160099-15 swab, Highway residence, trailer siding 160099-16 swab, Highway residence, trailer window 160099-17 strawberry leaves, mint, Highway residence, 6820A 160099-18 tomato, ornamental leaves, Highway residence, 6820B 160099-19 treated pear leaves from pear orchard 160099-20 treated pear leaves from pear orchard The samples were secured and delivered to ODA Laboratory Services, Portland, Oregon (the ODA lab), which subsequently analyzed them for spinetoram, boscalid, imidacloprid, and pyraclostrobin. 11. On September 17 and October 2, 2015 the ODA lab issued its analytical results for the samples. These results were as follows: Sample Description Detected Detected Detected Detected number spinetoram boscalid imidacloprid pyraclostrobin 160099-1C control, Bassler n/d NA n/d NA 160099-20 control, Bassler n/d NA n/d NA 160099-3C control, Bassler n/d NA n/d NA 160099-4 Bassler dish n/d NA n/d NA receiver 160099-5 Bassler window n/d NA n/d NA 160099?6 Bassler window 0.00015 NA 0.00020 NA pg/cmz, pg/cmz, 0.000080 0.000080 Bill Hirata - Civil Penalty, Proposed/Final Order - Page 7 of 12 160099-7 squash leaves, 0.016 0.48 0.0094 ppm, 0.052 Bassler back yard 160099-8 ornamental 0.19 1.6 0.5 0.73 leaves, Bassler front yard 160099?9 treated pear 1.0 9.7 1.5 2.1 leaves 160099-10 treated pear 1.2 11 4.9 6.1 leaves 160099-11C control, Highway n/d NA n/d NA 160099-12C control, Highway n/d NA n/d NA 160099-13C control, Highway n/d NA n/d NA 160099-14 Highway trailer n/d NA n/d NA siding 160099-15 Highway trailer 0.00037 NA 0.00093 NA siding pg/cmz, ug/cmz, 0.00013 0.00013 160099-16 Highway trailer NA 0.00043 NA window pg/cmz, 0.00013 160099-17 strawberry, mint, 0.12 1.9 0.33 0.72 Highway 160099-18 tomato, 0.19 1.3 0.62 0.63 ornamental Highway 160099?19 treated pear 1.7 19 4.9 5.2 leaves 160099-20 treated pear 1.7 17 2.3 4.6 leaves For swab samples the results are given in micrograms per square centimeter For the vegetation sample the result is given in parts per million (ppm). Except where othenlvise indicated the Minimum Reporting Level (MRL) for swabs is 0.0010 ug/cmz, and for vegetation is 0.010 ppm. NA not analyzed; n/d not detected at the MRL. 12. ODA considered possible sources of the detected pesticides. The August 25 applications were close to the detection sites at the Bassler and Highway residences; no other possible source was as close. Ill. ULTIMATE FINDINGS OF FACT 1. Hirata Orchards, Inc. is an agricultural grower in Hood River County, Oregon. Its crops include pears and its agricultural activities include the application of pesticides onto orchard trees. Hirata Orchards is operated at least in part by its president, Bill Hirata. 2. During August of 2015 Hirata Orchards, Mr. Hirata, and Mr. Solis applied pesticides to a pear orchard in the Parkdale area of Hood River County, Oregon. Bill Hirata - Civil Penalty, Proposed/Final Order Page 8 of 12 3. Residents or workers at Hirata Orchards reported spray from pesticide applications to the pear orchard being deposited onto their residential areas. All of the active ingredients applied during the August 25 applications were then detected off of the treated orchard, on the workers? residential areas. 4. The product labels of the pesticides applied during the August 25 applications all state that persons exposed to the product may experience adverse health impacts, and that it is unlawful to apply product in such a way as to contact workers or other persons. The labels of two of the three pesticide products applied included information on spray drift prevention, including statements such as only apply this product if the wind direction favors on?target deposition do not allow the spray to go beyond the edge of the cultivated area that applicators are ?responsible for considering weather related factors and the interaction of application equipment when making application decisions and that it is their responsibility to avoid drift. Hirata Orchards, Mr. Hirata, and Mr. Solis did not read or comply with the product label closely enough to be sure that application conditions remained consistent with these label provisions. 5. The Department investigated possible sources of the detected pesticides. Based on the detections on the worker residential areas, the immediate proximity of the pear orchard, and reports of deposition thereon, the August 25 applications were the only likely sources of the detected pesticides. These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW It is the determination of the Oregon Department of Agriculture that Bill Hirata violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION NO. 1 Bill Hirata violated ORS which states that A person may not: Perform pesticide application activities in a faulty, careless or negligent manner. On or about August 25, 2015 Mr. Hirata, as senior agent or employee of Hirata Orchards, Inc., used an airblast sprayer to apply a pesticide onto a pear orchard on the southwest corner of Bassler Drive and Dee Highway, Hood River County, Oregon, about a mile north of Parkdale. The pesticide Mr. Hirata applied was Pristine Fungicide, EPA Reg. 7969-199 (active ingredients: pyraclostrobin, boscalid) The product label of Pristine states that persons exposed to it may experience adverse health impacts, and that it is unlawful to apply the product in such a way as to contact workers or other persons. Workers or others at Hirata Orchards reported having seen pesticide spray being deposited onto their residential areas, and pyraclostrobin and boscalid, the active ingredients in Pristine, were detected on the residential areas after the Pristine application. The Department investigated possible sources of the detected pesticides, and found that the Pristine application was the only likely source. Mr. Hirata did not read or comply with the product label closely enough to be sure that the Pristine application remained consistent with the label. Applying this pesticide product without taking care to evaluate all factors and ensure that spray would not be deposited onto residential areas, and where some of the material was deposited onto residential areas, was pesticide application activity performed in a faulty, careless or negligent manner, in violation of ORS Bill Hirata - Civil Penalty, Proposed/Final Order Page 9 of 12 This conclusion is based on the findings of fact and ultimate findings of fact. V. PENALTY The penalty for Violation No. 1 is $407.00. The penalty is determined using the criteria in OAR 603- 057-0525 to 603-057-0530. NB NB) $370.00 $407.00 $407.00 1 violation $407.00 1. N, the number of related violations within a period of three years prior to and including the date of the current violative act, is 1; OAR 2. B, the base penalty is $370.00; OAR The base penalty was determined as follows: a. The MAGNITUDE is CATEGORY (MAJOR) under OAR b. The GRAVITY is HIGH LEVEL because the pesticide applied was used over a wide area of application with a high population density (workers and others on the orchard property); OAR and ii). 3. P, the past occurrence of unrelated violations is 0 (zero) because there were no past violations; OAR 4. H, the history of taking steps to correct a violation is 0 (zero) because there is insufficient information on which to base a finding; OAR 5. R, preventability of the violation and the presence of negligence or misconduct is 3 because the actions by Mr. Hirata determined to be violative were reasonably avoidable; OAR 603- At the time of the pesticide application activity Mr. Hirata was an experienced grower who had been a licensed Private Pesticide Applicator since 1977. Based on this history, he should have been aware that particular care should be taken to prevent pesticide deposition onto residential areas. 6. C, cooperativeness is ?2 (negative OAR Mr. Hirata was cooperative and readily provided information to the Department regarding the August 25 applications Any final order regarding this Notice of Imposition of Civil Penalty will become a part of Mr. Hirata?s history for a period of three years. Any future violations of ORS Chapter 634 or OAR Chapter 603, division 057 within the next three years will subject Mr. Hirata to additional enforcement actions including, but not limited to, civil penalties, product seizure, or license revocation. VI. RIGHT TO A HEARING You are entitled to a contested case hearing as provided by statues and rules including, but not limited to: ORS Chapter 183, including 183.413 to 183.470, and ORS 183.745; OAR Chapter 137, Division 3, including OAR 137-003-0501 to 137?003-0700; ORS 634.905; and OAR Chapter 603, Division 57. The request for a hearing must be made in writing to the Department within ten Bill Hirata - Civil Penalty, Proposed/Final Order - Page 10 of 12 business days of the date that you receive the OAR The request should be made to the attention of: Michael Babbitt Pesticides Program, Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301-2532 If you make a timely request for a hearing you will be noti?ed of the date, time and place of such hearing. You will also be given information on the procedures, right of representation and other rights of parties relating to the conduct of the hearing before commencement of the hearing. An administrative law judge from the Office of Administrative Hearings will preside at any hearing. The Director of the Department has authority to issue the final order. If the recipient of the enforcement notice is a corporation, partnership, limited liability company, unincorporated association, trust, or other entity that is not a natural person or individual, it must be represented in the contested case process by an attorney unless otherwise authorized by law. Furthermore, the attorney representing such a corporation or other entity must ratify the request for hearing, in writing, within 28 days of the date that the request is received by the agency; OAR 137- 003-0550. This provision does not, however, require any entity to be represented by an attorney at any informal conference. Individuals may but are not required to be represented by counsel. The state will not provide legal counsel in administrative cases such as this, but private legal aid organizations may be able to assist a person with limited financial resources. VII. FINAL ORDER If you do not make a timely request for a hearing, you will waive your right to request a hearing and this order will become final and effective 10 (ten) business days after it is served on you; OAR 137- If you request a hearing but later fail to appear at the hearing, withdraw the request for a hearing, or notify the agency or administrative law judge that you will not appear at the hearing and it is not rescheduled, you will waive your right to a hearing and this order will become final; OAR 137-003- 0672(3). In these circumstances, the Department will mail you a notice stating when this order became final. The Department has designated the relevant portions of its files on the subject of this matter, including all materials that you have submitted relating to this matter, as the record in this case for the purpose of proving a prima facie case upon default. If this order becomes final, the Department will issue a judgment against you and a civil penalty in the amount set out in this Notice will become due and payable 70 (seventy) days after the order becomes final. ORS 183.745. Your check or money order should be made payable to the Oregon Department of Agriculture and sent to: Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301-2532 When any final order regarding this Notice becomes final you will have the right to appeal the order to the Oregon Court of Appeals pursuant to ORS 183.482. To appeal you must file a petjtion forjudicial Bill Hirata Civil Penalty, Proposed/Final Order - Page 11 of 12 review with the Court of Appeals within 60 days from the date this order becomes final. If you do not file a petition forjudicial review within this time period you will lose your right to appeal. ~31; c" DATED this 7 day of Wub?-tr . 2016 6W MAW c?o'erl DIRECTOR OREGON DEPT. OF AGRICULTURE NOTE: Copies of the Department?s investigation report will be provided upon request. The request must be made in writing. There may be a monetary charge for some reports. The written request should be made to: Oregon Department of Agriculture, Pesticides Program, ATTN: Andrea Sonnen, 635 Capitol Street NE, Salem, Oregon 97301-2532. TO ACTIVE DUTY SERVICEMEMBERS: Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800?452-7500, or the nearest United States Armed Forces Legal Assistance Office through Bill Hirata - Civil Penalty, Proposed/Final Order - Page 12 of 12 BILL HIRATA Oregon Department of Agriculture. Pesticides Case No. 160099 Notice of Contested Case Rights and Procedures Pursuant to ORS you are entitled to be informed of the following: 1. Time and place of hearing. The time and place of hearing is or will be set forth in the Notice of Hearing issued by the Administrative Law Judge (ALJ) after the prehearing conference. Issues to be considered at hearing. The issues to be considered at hearing are those set forth in the notice issued by the Oregon Department of Agriculture (ODA) entitied Notice of Imposition of Civil Penalty and Proposed/Final Order (NICP), and dated .81 7. 6 and those issues related thereto that are properly before the presiding of?cer to this proceeding. Law that applies. The matter set for hearing is a contested case. The hearing will be conducted as provided in Chapter 183 and 634 of the Oregon Revised Statutes the administrative rules of the ODA, OAR 603- 057? 0500 through 603- 057- 0515 and the Attorney General' 3 Office of Administrative Hearing Rules OAR 137- 003- 0501 to 137- 003- 0700. Other laws involved include: ORS Chapters 561, 570, and 616; additional rules of the ODA, OAR 603-057; Title 7, Chapter 6, Subchapter ll of the United States Code; and Title 40, Parts 152, 156. and 180 of the Code of Federal Regulations. Right to attorney. You may be represented by an attorney at the hearing. Most persons are represented by counsel for hearings involving ORS 634. You are not required to be represented by counsel, unless you are a corporation, LLC, partnership, etc., in which case you are required to be represented by an attorney at the hearing. and more immediately, your request for a hearing must be rati?ed by an attorney within 28 days of the agency's receipt of the request. OAR 137- 003-0550. If you are not represented at the hearing and during the hearing you determine that representation by an attorney is necessary, you may request a recess to allow you an opportunity to secure the services of an attorney The hearing ALJ will decide whether to grant such a request. The ODA will be represented by an attorney. Legal aid organizations may be able to assist a party with limited ?nancial resources. Administrative Law Judge. The person presiding at the hearing is known as the administrative law judge (ALJ). The ALJ will rule on all matters that arise at the hearing, subject to agency consideration of matters transmitted for agency decision under OAR 137-003-0635 or matters subject to agency review under OAR 137-003-0640 or OAR 137-003-0570. The ALJ will be assigned by the Chief ALJ from the Of?ce of Administrative Hearings (OAH). The OAH consists of employees of, and independent contractors with, the Chief ALJ. The ALJ does not have the authority to make the ?nal decision in the case. The ?nal determination will be made by the Director of the ODA. Discovery. If the agency or the ALJ authorizes discovery, the agency or the ALJ shall control the methods. timing and extent of discovery. Discovery is permitted in this proceeding. Discovery is permitted as provided in OAR 137-003-0570, OAR 137-003-0572, and OAR 137?003-0573. Witnesses. A witness must testify under oath or af?rmation to tell the truth. The ODA or the ALJ will issue subpoenas for witnesses on your behalf upon a showing that their testimony Is relevant to the case and is reasonably needed by you to establish your position If you are represented by an attorney, your attorney may issue subpoenas for attendance of witnesses at hearing. Payment of witness fees and mileage to the person subpoenaed is your responsibility. Order of evidence. A hearing is similar to a court proceeding but is less formal. Its general purpose is to determine the facts and whether the ODA's proposed action is appropriate. The order of presentation of evidence is normally as follows: a. Testimony of witnesses and other evidence of the ODA in support of its proposed action. b. Testimony of your witnesses and your other evidence. c. Rebuttal evidence by the ODA and by you. Burden of presenting evidence. The burden of presenting evidence to support an allegation or position rests upon the proponent of the allegation or position. If you have the burden of proof on an issue or if you intend to present evidence on an issue in which the agency has the burden of proof you should approach the hearing prepared to present the testimony of witnesses including yourself and other evidence that will support your position. All witnesses are subject to cross- examination and also to questioning by ALJ. Notice of Contested Case Rights and Procedures Page 1 10. 11. 12. 13. 14. 15. 16. 17. Admissible evidence. Relevant evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible and will be received. Hearsay evidence is not automatically excluded. Rather, the fact that it is hearsay generally affects how much reliance the ALJ and the Director of the ODA will place on it in reaching a decision. There are four kinds of evidence: a. Knowledge of the agency or ALJ. The agency or ALJ may take "of?cial notice? of facts based on the agency's or knowledge in a specialized field. This includes notice of general, technical or scienti?c facts. The agency or ALJ may also take "judicial notice" of a fact that is not subject to reasonable dispute in that it is generally known or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. You will be informed if the agency or ALJ takes ?of?cial notice" or "judicial notice? of any fact and you will be given an opportunity to contest any facts so noticed. b. Testimony of witnesses. Testimony of witnesses, including you, who have knowledge of the facts may be received in evidence. c. Writings. Written documents including letters. maps, diagrams and other written material may be received in evidence. d. Experiments, demonstrations and similar means used to prove a fact. The results of experiments and demonstrations may be received in evidence. Objections to evidence. Objections to the admissibility of evidence must be made at the time the evidence is offered. Objections are generally made on one of the following grounds: a. The evidence is unreliable; b. The evidence is irrelevant or immaterial and has no tendency to prove or disprove any issue involved in the case; c. The evidence is unduly repetitious and duplicates evidence already received. Continuances. There are normally no continuances granted at the end of the hearing for you to present additional testimony or other evidence. However, if you can show that the record should remain open for additional evidence, the ALJ may grant you additional time to submit such evidence. Record. A record will be made of the entire proceeding to preserve the testimony and other evidence for appeal. This may be done by use of a tape or digital recorder or court reporter. The record is generally not transcribed. unless there is an appeal to the Court of Appeals. However, you may obtain a copy of the tape recording upon payment of the costs of making a copy of the tape. If a court reporter is used, you may obtain a transcript or a copy of the court reporter's transcript upon payment of a transcription fee or other fee that the parties may agree upon. Proposed Order and Exceptions. The ALJ will issue a proposed order in the form of ?ndings of fact, conclusions of law and recommended agency action. You will be provided with a copy and you will be given an opportunity to make written objections, called ?exceptions," to the ALJ's recommendations. You will be noti?ed when exceptions to the proposed order must be ?led. You will be noti?ed when you may appear and make oral argument to the agency. Final Order. The agency will render the ?nal order in this case. The agency may modify the proposed order issued by the ALJ. if the agency modifies the proposed order in any substantial manner, the agency in its order will identify the modifications and will provide an explanation as to why the agency made the modi?cations. The agency may modify a proposed ?nding of ?historical" fact only if the proposed ?nding is not supported by a preponderance of the evidence in the record. Appeal. If you wish to appeal the final order, you must ?le a petition forjudicial review with the Oregon Court of Appeals within 60 days after the ?nal order is served upon you. See Oregon Revised Statutes 183.482. Notice to Active Duty Servicemembers. Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452?8260, the Oregon Military Department at 800-452-7500, or the nearest United States Armed Forces Legal Assistance Of?ce through Notice of Contested Case Rights and Procedures Page 2