Department of Agriculture 635 Capitol St NE Salem, OR 97301?2532 Kate Brown, Governor PESTICIDES PROGRAM TEL: 503?986-4635 CERTIFIED MAIL January 2016 Barry Robino, registered agent for: Grange Cooperative Supply Association PO Box 3637 Central Point, Oregon 97502 Re: NOTICE OF VIOLATION AND IMPOSITION OF CIVIL PENALTY and ORDER, ODA CASE NOS. 150262, 150270 This is a Notice of Violation and Imposition of Civil Penalty and Proposed/Final Order that is based on pesticide investigations 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 of the NOTICE carefully. 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. DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Encl: Notice of Contested Case Rights and Procedures STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture NOTICE OF VIOLATION and IMPOSITION OF CIVIL PENALTY and ORDER, for Violation of the State Pesticide Control Act, ODA Pesticides Case Nos. 150262, 150270 In the Matter of: Grange Cooperative Supply Association dba Grange Co-op a Pesticide Dealer and Retailer The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $407.00, against Grange Cooperative Supply Association dba Grange Co?op 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 62 (cooperatives), 183 (administrative law), 561 (agriculture), 634 (pesticides), 647 (marks trademarks), and 648 (assumed business names); 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. At the times relevant to these matters, ORS 634.006(8) stated that ?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; (0) ?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 cr0p 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, 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." Grange Cooperative Supply Association Notice of Violation and Civil Penalty Page 2 of 11 4. ORS 634.016(1) states ?Every pesticide, including each formula or formulation, manufactured, compounded, delivered, distributed, soid, offered or exposed for sale in this state shall be registered each year with the State Department of Agriculture.? 5. ORS 634.372(17) states person may not Formulate, deliver, distribute, sell or offer for sale any pesticide that has not been registered as required by ORS 634.016.? 6. 0R8 634.372(15) states person may not Deliver, distribute, sell or offer for sale any pesticide that is misbranded.? 7. ORS 634.026 states: (1) If not otherwise required or prescribed by federal law or rule, each package or container of every pesticide shall be labeled with: The name and address of the manufacturer or person for whom it was manufactured. The brand name or trademark under which the material is sold. The professed standard of quality of the material. The net weight or volume of the contents. Adequate and necessary directions for its proper and intended use. (2) In addition to the information required by subsection (1) of this section, any pesticide which is highly toxic shall be labeled with: A sign of a skull and crossbones. The word ?poison" in red on the package printed on a background of contrasting color. A poison antidote for the material, if any. (3) The provisions of subsection (2) of this section shall not apply to bleaching powder or chloride of lime. 8. ORS 634.032 states ?Pesticides shail be deemed misbranded if: (1) The package or container of such materials bears any false or misleading statement. (2) The container or package of such materials is not labeled as required by ORS 634.026. 9. ORS 634.006(22) states: ?Restricted-use pesticide? means any pesticide or device that the department has found and determined to be so injurious or detrimental to humans, pollinating insects, bees, animals, crops, wildlife, land or environment, other than the pests it is intended to prevent, destroy, control or mitigate, that additional restrictions are required." 10. ORS 634.006(11) states ?Pesticide dealer' means a person who sells, offers for sale, handles, displays or distributes any pesticide classified by the department as a restricted?use or highly toxic pesticide.? 11. ORS Chapter 634 authorizes the Oregon Department of Agriculture to issue pesticide licenses (ORS 634.36), including licenses for dealers (ORS 634.057), commercial applicators (634.122), and private applicators (ORS 634.142). 12. ORS 634.372(2) states person may not As a pesticide applicator or operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its labeling, or as a pesticide consultant or dealer, recommend or distribute such pesticides.? 13. The labels of Restricted Use Pesticides (RUP) require pesticide dealers to sell them only to appropriately licensed applicators. Under the authority of ORS Chapter 634, ODA has implemented rules that describe the categories and subcategories of commercial pesticide applicator licenses that are appropriate for purchasing particular types of RUPs. OAR 603-057-0110 (5) describes the category Grange Cooperative Supply Association Notice of Vioiation and Civil Penalty Page 3 of 11 Industrial, Institutional, Health, and Structural (HHS) Pest Control: ?This shall include pesticide operators, pesticide applicators, pesticide trainees, public applicators, and public trainees who use or supervise the use of pesticides in, on, or around food handling establishments, human dwellings, institutions schools, hospitals, etc.), industrial establishments (including warehouses and grain elevators), and any other structures or areas utilized for the storing, processing, or manufacturing of products.? 603?057-0115 (2) describes the subcategories within llHS, these include ?Pest Control, General" (General Pest): ?This shall include pesticide operators, pesticide applicators, pesticide trainees, public applicators, and public trainees who use or supervise the use of pesticides, other than fumigants, in or around structures, institutions and establishments for the protection of stored, processed, and manufactured products or for the protection of human 14. ORS 634.322(6 and 7) states "In carrying out and enforcing the provisions of this chapter, the State Department of Agriculture is authorized: (6) To establish limitations and procedures deemed necessary and proper for the protection of persons, pollinating insects, bees, animals, crops, wildlife, land or environment, on the following: Quantities of packages; Quantities of sales; (0) Uses or applications; Methods of sale, including prescription or permit requirements; or Persons to whom sold. (7) To inspect any records required to be maintained by persons formulating, distributing, using or selling the pesticides described in ORS 634.306 (4) and to cause monitoring of the effects of such pesticides on human or animal life in any area where it is used or applied by a recognized and qualified person or agency.? 15. The Department is responsible for enforcing the Oregon State Pesticide Control Act and may make any rule necessary for enforcement of program requirements. ORS 561.020; ORS 561.190; ORS Chapter 634. 16. ORS 561.190 states ?The State Department of Agriculture is authorized and directed to make any and all rules and regulations necessary for the administration or enforcement of any law with the administration or enforcement of which the department is charged, and not inconsistent with the authority with which the department is vested or with any such law. Such rules and regulations shall be compiled and printed in pamphlet form for distribution. The violation of any ruie or regulation made by the department pursuant to this section shall be a violation of the law to which such rule or regulation applies and shall be punishable in the manner provided for violations of such law." 17. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 18. OAR 603-057-0140 provides requirements for Pesticide Dealer Records: (1) As provided in subsections (6) and (7) of ORS 634.322, a pesticide dealer shall prepare and maintain records of his sales of restricted-use and highly toxic pesticides for a period of three years. Such records shall include: The names and addresses of the purchasers of such pesticides, and the license or certificate numbers of the purchasers; The date of sale; The trade name (and the formulation if applicable) of such pesticides; The quantity of each sale of such pesticides. (5) Failure to comply with the conditions set forth in OAR 603?057?0140 may be considered as violations of ORS 634.372, and may be subject to any enforcement action available to the department under ORS 634. Grange Cooperative Supply Association Notice of Violation and Civil Penatty Page4of11 19. ORS 634.372(5) states person may not Refuse or neglect to prepare and maintain records required to be kept by the provisions of this chapter.? 20. ORS 634.900 et seq. authorizes ODA to impose civil penalties for violations of provisions of ORS Chapter 634. Section 10 of House Bill 3549 (2015) 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.? This provision of HB 3549 became effective January 1, 2016. 21. OAR 603?057-0500 et seq. provides formulae for calculating the civil penalties authorized by ORS 634.900. OAR 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.? 22. ORS 634.900 and OAR 603-057-0510 authorize the Department to Issue Notices of Violation for violations of ORS Chapter 634. 23. ORS Chapter 62 regulates cooperatives transacting business in Oregon. II. FINDINGS OF FACT ODA Pesticides Case Nos. 150262, 150270 1. This Notice/Order is the result of two routine inspections initiated by the Department in February of 2015. These were a pesticide Dealer Record Inspection and a pesticide Marketplace Inspection. The purpose of the Dealer Record inspection was to inspect licensing of customers who purchased Restricted Use Pesticides (RUP) from Grange Co-op, as welt as records of sales of RUPs. The purpose of the Marketplace Inspection was to inspect registration, labeling and packaging of pesticides offered for sale or distribution. The representatives of Grange Co-op who were in contact with ODA regarding these inspections were Manager Cindy Stanley and Andy Smith. 2. Grange Cooperative Supply Association is an Oregon cooperative with a principal place of business at 2833 Pacific Highway, Medford, Jackson County, Oregon. Grange Cooperative Supply Association does business as Grange-Co-op, an Assumed Business Name it has registered with the Oregon Secretary of State. Grange Cooperative Supply Association dba Grange Co?op (Grange Co-op) has its principal place of business at 89 Alder Street, Central Point, Jackson County, Oregon, where it sells and distributes agricultural equipment and suppiies, including pesticides. In this Notice/Order ?Grange Co?op? may refer to Grange Cooperative Supply Association operating directiy as the cooperative or under the Assumed Business Name. Paragraphs through refer to ODA Pesticides Case 150262, the Dealer Record Inspection 3. Grange Cooperative Supply Association is licensed by ODA as a Pesticide Dealer, license number this license was issued in December of 1999. 4. During 2014 Grange Co-op?s RUP sales included the following: Grange Cooperative Supply Association Notice of Violation and Civil Penalty Page 5 of it Purchaser name, license No. Purchase Product name Product date EPA Reg. No. Gilbert Morales, July 3,2014 Weevil-Gide Aluminum Phosphide 70506?13 Fumigant Tablets This sale may be referred to as the Weevil-cide sale. Weevil-cide Aluminum Phosphide Fumigant Tablets (Weevil-Gide) is labeled for control pests of stored commodities and for control of burrowing pests listed on the label. It is a Restricted Use Pesticide ?due to acute inhalation toxicity of phosphine gas.? Weevil-cide is not labeled for use on general pests. The General Pest subcategory is defined by OAR 603-057-0115 as excluding fumigants. 5. At the time of the Weevil~cide sale the Oregon Commercial Pesticide Applicator (CPA) license of Gilbert Morales, included only the category and subcategory Industrial, Institutional, Health and Structural (IIHS) General Pest control. This license was issued by ODA in January of 2012. 6. During the Dealer record Inspection ODA reviewed Grange Co-op?s records of RUP sales it made in 2013 and 2014. Of these records, or invoices: dated March 20, 2014, lacked the address of the purchaser 067644/3, dated July 3, 2014, lacked the address of the purchaser, and 376496/3, dated July 28, 2014, lacked the name and valid applicator license number of the individual purchaser. Paragraph refers to ODA Pesticides Case 150270, the Marketplace Inspection 7. During the Marketplace inspection, on February 12, 2015, the Department found the following pesticide products being offered for sale and distribution by Grange Co-op: Product EPA Reg. No. Quantity, Size Syngenta - Abound Flowable Fungicide 100-1098 one 1?gal jug Sostram - Mold Ram Fungicide 72304-4 one 32-fl oz jug ProGibb 4 Plant Growth Regulator Solution 275-61 one 20-fl oz bottle Griffin Kocide DF 1812?334 three 20-lb bags Dow Agro Sciences lndar 75 WSP 62719?421 three 8x2-oz bags Bayer Max Force Prof Insect Control Granule 432-1262 nine 64b jugs Bio Safe Systems - Terra Cyte Broad Spectrum Algaecide 70299-3 one 50-lb bucket These products are or were registered as pesticides with the United States Environmental Protection Agency (EPA), and are pesticides as defined by ORS Except for Abound Flowable Fungicide (Abound), ODA has no record that these pesticide products were registered for delivery, distribution, sale or offering for sale in Oregon on February 12, 2015. On February 12, 2015 the 1-gallon jug of Abound was lacking part of the label, the booklet that included use directions. ULTIMATE FINDINGS OF FACT 1. Grange Cooperative Supply Association dba Grange Co-op is an Oregon~licensed Pesticide Dealer, and a retailer of pesticides operating in Jackson County, Oregon. Grange Cooperative Supply Association Notice of Violation and Civii Penalty Page 6 of 11 Paragraph and Ill-3 refer to ODA Pesticides Case 150262, the Dealer Record Inspection 2. In July of 2014 Grange Co-op sold an RUP to a purchaser who did not have the appropriate applicator license. The sale was of an aluminum phosphide fumigant to purchaser who had a CPA license with only the General Pest subcategory. The General Pest subcategory is defined by OAR 603-057?0115 as excluding fumigants. 3. Some of Grange Co-op's records of their 2013 and 2014 sales of RUPs were found to be missing required information about the purchasers: address, name, or pesticide applicator license number. Paragraph refers to ODA Pesticides Case 150270, the Marketplace Inspection 4. At the time of the Marketplace Inspection Grange Co-op was found to be offering for sate six pesticide products that were not then registered for sale or distribution in Oregon, and one pesticide product that was mislabeled, in that part of the label, including use directions, was missing. These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW The Oregon Department of Agriculture determines that Grange Cooperative Supply Association dba Grange Co?op violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION N0. 1 (Dealer Record Inspection, 150262) Grange Cooperative Supply Association dba Grange Co-op violated ORS which states A person may not: As a pesticide applicator or operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its iabeiing, or as a pesticide consultant or dealer, recommend or distribute such pesticides. On or about July 3, 2014 Grange Co~op rnade the following sale of a Restricted Use Pesticide: Purchaser name, Product name Product EPA Reg. No. license No. Gilbert Morales, Weevil-Gide Aluminum Phosphide Fumigant Tablets 70506-13 AG-L10200410PA Weevil?cide is a Restricted Use Pesticide Iabeied for control of insect and other pests of stored commodities and for control of labeled burrowing pests. It is a fumigant and is not labeled for use on general pests. At the time of the Weevil~cide sale the Oregon Commercial Pesticide Applicator (CPA) license of Gilbert Morales, included only the HHS General Pests category and subcategory. The General Pest subcategory is defined by OAR 603-057-0115 as excluding fumigants: ?Pest Control, General: This shall include pesticide operators, pesticide applicators who use or supervise the use of pesticides, other than fumigants, in or around structures, institutions and establishments for the protection of stored, processed, and manufactured products or for the protection of human Setting this fumigant RUP to a purchaser whose pesticide applicator license did not permit the use of fumigants, was distributing the product inconsistent with its labeling, in violation of ORS This violation is designated as Violation No. 1. Grange Cooperative Supply Association Notice of Violation and Civil Penalty Page 7 of 11 VIOLATION NO. 2 (Dealer Record Inspection, 150262) Grange Cooperative Supply Association dba Grange Co-op violated ORS which states A person may not Refuse or neglect to prepare and maintain records required to be kept by the provisions of this chapter. During February of 2015 ODA inspected the RUP sales records of the Oregon-licensed pesticide dealer Grange Co-op, of Central Point, Oregon. ORS 634.322 (6 and 7) and OAR 603?057~0140 require pesticide dealers to prepare, and maintain for three years, records of sales of RUPs. The records inspected were from 2013 and 2014; of these records at least two were missing purchaser address information and one was missing the purchaser's name and applicator license number. OAR requires that RUP sales records include the ?names and addresses of the purchasers of such pesticides, and the license or certi?cate numbers of the purchasers.? This failure to record all of the elements of information about sales of RUPs that are required by ORS 634.322 (6 and 7) and OAR 603-057-0140 was in violation of ORS This violation is designated as Violation No. 2. VIOLATION NOs. 3 through 8 (Marketplace Inapection, 150270) Grange Cooperative Supply Association dba Grange Co-op violated ORS which states A person may not: Formulate, deliver, distribute, sell or offer for sale any pesticide which has not been registered as required by ORS 634.016. On February 12, 2015, the Department found the following pesticide products being offered for sale or distribution by Grange Co-op, a pesticide retailer in Central Point, Oregon: Product EPA Reg. No. Quantity, Size Sostram Mold Ram Fungicide 72304-1 one 32-fl oz jug ProGibb 4 Plant Growth Regulator Solution 275-61 one 20~fl oz bottle Grif?n - Kocide DF 1812-334 three 20-lb bags Dow Agro Sciences lndar 75 WSP 62719-421 three 8x2~oz bags Bayer Max Force Prof Insect Control Granule 432-1262 nine 6-lb jugs Bio Safe Systems - Terra Cyte Broad Spectrum Algaecide 70299?3 one 50-lb bucket On February 12, 2015 these pesticide products were not registered for sale or distribution Oregon, as required by ORS 634.016. Offering to sell these six unregistered pesticide products constituted six violations of ORS designated as Violation Nos. 3 through 8. VIOLATION NO. 9 (Marketplace Inspection, 150270) Grange Cooperative Supply Association dba Grange Co-op violated ORS which states A person may not Deliver, distribute, sell or offer for sale any pesticide that is misbranded. On February 12, 2015, the Department found Grange Co-op, a pesticide retailer in Central Point, Oregon, offering for sate or distribution the foltowing pesticide product: One 1~gallon jug of Abound Flowable. Fungicide, EPA Reg. No. 100-1098, Syngenta Crop Protection, inc. This container of Abound was lacking part ofthe label, the booklet that included use directions. ORS 634.026 requires that ?each package or container of every pesticide shall be labeled with Adequate and necessary directions for its proper and intended use.? ORS 634.032 states ?Pesticides shall be deemed misbranded if The container or package of such materials is not labeled as required by ORS 634.026.? Offering to sell this misbranded pesticide product was in violation of ORS This violation is designated as Violation No. 9. Grange Cooperative Supply Association Notice of Violation and Civil Penaity Page 6 of 11 These conclusions are based on the findings of fact and ultimate findings of fact. V. PENALTY and DEPARTMENT ACTIONS 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 I (MAJOR) under OAR b. The GRAVITY is HIGH LEVEL because the pesticide applied was designated as a restricted use pesticide; OAR 3. P, the past occurrence of unrelated violations is 0 (zero) because there are no past violations within the three years prior to the violative act. 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 603? 057- 5. R, preventability of the violation and the presence of negligence or misconduct is 3 (three) because the action by Grange Co-op determined to be violative was reasonably avoidable; OAR 603?057- 0530(1)(e)(C). Grange Co?op has been a licensed Pesticide Dealer since 1999 and has been through several record inspections with ODA. The licensing requirements for purchasers of RUPs have been available and Grange Co-op could have checked them to find answers to any questions. Based on this history Grange Co-op should have been aware that the purchaser in the Weevil-cide sale was not appropriately licensed for this product. 6. C. cooperativeness is (negative OAR Grange Co-op and its representatives were cooperative and readily provided information to the Department regarding the Weevil- cide sale. VIOLATION NOs. 2 through 9 Notice of Violation Violations Nos. 2 through 9 (regarding RUP sales records, marketing unregistered pesticides, and marketing a misbranded pesticide product) are addressed by means of Notice of Violation; no civil penalties are proposed for Violations Nos. 2 through 9. Once the Department issues a Final Order, it does not anticipate any further action against Grange Co?op for Violation Nos. 2 through 9. The final order regarding this Notice of Violation and Imposition of Civil Penalty will become a part of Grange Co-op?s history fora period of three years. Any future violations of ORS Chapter 634 or OAR Grange Cooperative Supply Association Notice of Violation and Civit Penaity Page 9 of 11 Chapter 803, division 057 within the next three years will subject Grange Co-op to additional enforcement actions including, but not iimited 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 834.905; and OAR chapter 803, division 57. The request for a hearing must be made in writing to the Department within ten 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 835 Capitol Street NE Salem, Oregon 97301 -2532 if you make a timely request for a hearing you will be notified 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. Please note that 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, it must be represented in the contested case process by an attorney. 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. 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 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 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: Grange Cooperative Supply Association Notice of Violation and Civil Penalty Page 10 of 11 Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301?2532 If this order 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 petition for judicial review with the Court of Appeals within 60 days from the date this order becomes final. If you do not file a petition for judicial review within this time period you will lose your right to appeal. . H. DATED this 2 0 day of 01-1/1 2016 ngZ/Zae?f I DIRECTOR WM 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: SUNNY JONES, 635 Capitol Street NE, Salem, Oregon 97301-2532. NOTICE TO 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 Grange Cooperative Supply Association Notice of Violation and Civil Penaity Page 11 of 11 GRANGE COOPERATIVE SUPPLY ASSOCIATION dba GRANGE CO-OP Oregon Department of Agriculture, Pesticides Case Nos. 150262.150270 Notice of Contested Case Rights and Procedures Pursuant to ORS 183.41 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), entitled Notice of Violation and Imposition of Civil Penalty and Proposeleinai Order (NICP), and dated U?muar?)! 529. 20M and those issues related thereto that are properly before the presiding of?cer to this proceeding. Law that appiies. The matter set for hearing is a contested case. The hearing wilt be conducted as provided in Chapter 183 and 634 of the Oregon Revised Statutes the administrative rules of the ODA, OAR 603-057-0505 through 603- 0570515, and the Attorney General's Of?ce of Administrative Hearing Rules, OAR 137-003-0501 to 137-003-0700. Other iaws involved include: ORS Chapters 561, 570, and 618; additionai ruies of the ODA, OAR 603-057; Title 7, Chapter 6, Subchapter il 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 invoiving 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 abie to assist a party with limited financial 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 wilt 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 final decision in the case. The ?nai 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 tel} the truth. The ODA or the ALJ will issue subpoenas for witnesses on your behalf upon a showing that their testimony is reievant to the case and is reasonably needed by you to estabiish 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 iess 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. 0. 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 yourseif, 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 it). 11. 12. i3. 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 ALJ's knowledge in a specialized ?eld. 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; 0. 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 recommendations. You will be notified when exceptions to the proposed order must be filed. You will be noti?ed when you may appear and make oral argument to the agency. Final Order. The agency will render the final 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 modi?cations and will provide an explanation as to why the agency made the modifications. 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 ?nal order, you must ?le a petition for judicial 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