0 re 0n Department of Agriculture 635 Capitol St NE Kate Brown, Governor Salem, OR 97301-2532 PESTICIDES PROGRAM TEL: 503-986-4635 CERTIFIED MAIL March 2016 Eoucario Mejia Registered agent for: Highlanders Forest, LLC 2348 Bee? Lane Central Point, Oregon 97502 Re: NOTICE OF VIOLATION AND IMPOSITION OF CIVIL PENALTY and ORDER, ODA CASE NO. 150266 This is a Notice of Violation and 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 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. Ifyou do not request a hearing this NOTICE will become the Final Order, and the Final Order shall constitute a judgment. Important Note: The Department is also issuing separate proposed enforcement actions to several of your employees. Those proposed actions are speci?c to their recipients. Your request for a hearing or payment of penalty is separate from and has no bearing on any employee's response to their enforcement action, although hearing processes could be combined if multiple parties request hearings. ?ow 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 OF CIVIL PENALTY and ORDER, Highlanders Forest, LLC, for Violation of the State Pesticide Control Act, a Commercial Pesticide Operator ODA Pesticides Case No. 150266 In the Matter of: The Director of the Oregon Department of Agriculture (ODA or the Department) hereby proposes to assess a civil penalty in the amount of $10,000.00, against Highlanders Forest, LLC, as authorized by statutory and regulatory provisions including, but not limited to, ORS 634.900 to ORS 634.915 and OAR 603057-0500 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. APPLICABLE LAW 1. The applicable law includes the following: ORS Chapters 63 (limited liability companies), 183 (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 634.005 states: "The purpose of this chapter, which shall be known as the State Pesticide Control Act and shall be enforced by the State Department of Agriculture, is to regulate in the public interest the formulation, distribution, storage, transportation, application and use of pesticides. Many materials have been discovered or which are necessary and valuable for the control of insects, plant diseases and weeds. Many more pesticides will be discovered and needed. Such materials, however, may injure health, property, wildlife or environment by being distributed, stored, transported, applied or used in an improper or careless manner. The pesticide industry of this state has achieved and maintained high standards in its formulation and use of pesticides while at the same time experiencing a minimum of injury to persons, property or the environment. Currently updating the law to maintain this achievement and to consider future new pesticides and problems is necessary for the protection of persons, property, wildlife and environment of this state.? 4. 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. 5. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 6. ORS 634.006(8) states 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; Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 2 of 16 7. ?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, 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.? ORS 634.006(13) states ?Pesticide operator? means a person who owns or operates a business engaged in the application of pesticides upon the land or property of another.? 8. 10. ORS 634.006(9) states ?Pesticide applicator' or ?applicator? means a person who: Is spraying or applying pesticides for others; Is authorized to work for and is employed by a pesticide operator; and is in direct charge of or supervises the spraying or other appiication of pesticides or operates, uses, drives or physically directs propulsion of equipment, apparatus or machinery during the Spraying or other application of pesticides, either on the ground or, it certified by aircraft." ORS 634.006(14) states "Pesticide trainee' means a person who: Is employed by a pesticide operator; and is working and engaged in a training program under special certificate to quality as a pesticide applicator.? 0R8 Chapter 634 authorizes the Oregon Department of Agriculture to issue pesticide licenses, including licenses or certi?cates for operators, applicators, and trainees. ORS 634.057, 634.116, 634.122, and 634.126. 11. ORS 634.122 states in part that An applicant for a pesticide applicator's license shall be required to demonstrate satisfactorily by written examination or any reexamination given by the department, an adequate knowledge of: The characteristics of pesticides and the effect of their application to particular crops. The practices of application of pesticides. The conditions and times of application of pesticides and the precautions to be taken in connection therewith. The applicable laws and rules relating to pesticides and their application in this state. Integrated pest management techniques, as defined in ORS 634.650, for pest control. Other requirements or procedures which will be of benefit to and protect the pesticide applicator, the persons who use the services of the pesticide applicator and the property of others." Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 3 of 16 12. OAR 603-057-0120 provides general standards of competence for commercial pesticide applicators; it establishes a system of written examination of applicator candidates, certification, recertification and renewal. Under these rules recertification may be obtained by re-examination or by attending training classes. OAR 603-057?0120 states, in part: (1) Competence in the use or handling of pesticides shall be determined on the basis of written examinations which, in addition to the requirements of OAR 603-057-0125, shall include the following general standards: Comprehension of labeling format, labeling terminology, and the labeled warnings and instructions; Knowledge of safety factors to be considered, including need and use of protective clothing, first aid procedures in the event of accidents, of various pesticide poisonings, and proper storage, transportation, handling, and disposal methods; Knowledge of potential consequences to the environment from the use or misuse of pesticides, as influenced by climate, topography, and existence of animal life; Knowledge of methods of use or application, including the various forms (dust, wettable powder, etc.) of pesticides, the compatibility of various pesticides, the types of application equipment or devices, and the times when various pesticide forms or equipment would be appropriateiy used; and Knowledge and comprehension of existing laws and rules governing pesticide use or application, including classifications of various pesticides (highly toxic, restricted use, or general). (3) An applicant for'a pesticide applicator's license renewal shall be required to take a reexamination each fifth year after taking the original examination, and be subject to the provisions of this section and OAR 603-057-0125 in regard thereto. However, if the Department's records indicate the applicant for license renewal has complied with the provisions of OAR 603-057-0150, the written examination shall be waived 13. OAR 603-057-0150 provides for license renewal through attending recertification classes in lieu of reexamination. 14. ORS 634.306 authorizes ODA to ?promulgate regulations necessary to carry out the purposes and intent of this chapter, including but not limited to the following: (1) Establish and maintain a program required for a person to work or engage in the application or spraying of pesticides as a pesticide trainee. 15, OAR 603?057-0106 states: ?immediately Supervised Pesticide Trainee (1) There is herewith established a type of pesticide trainee license and a type of public trainee license which shall bear the designation ?immediately Supervised Trainee." (5) An immediately supervised trainee license authorizes the hoider to conduct pesticide application activities under the immediate supervision of an appropriately licensed supervisor as detailed in OAR 603-057-0001. The immediately supervised pesticide trainee may apply pesticides only in the categories listed under the supervisor?s license. If the supervisor is a licensed public applicator, the immediately supervised pesticide trainee or immediateiy supervised public trainee may only apply pesticides as described in ORS (7) For each pesticide application made by an immediately supervised pesticide trainee, a pesticide application record, as required by ORS 634.146 and OAR 603-057-0130, must be made that also contains the names and pesticide license numbers of the trainee(s) and their supervisor(s). The employer of the trainee shall retain the record for a period of three years and release them to the department for inspection as required or authorized by ORS chapters 561 or 634 or rules Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 4 of 16 ad0pted thereunder. (9) For purposes of this section, ?an appropriately licensed supervisor? is: A licensed pesticide applicator, or licensed public applicator; Licensed in the category, or categories, in which the immediately supervised pesticide trainee is currently engaged. (10) Any immediately supervised pesticide trainee conducting pesticide application activities without an appropriately licensed supervisor, without an appropriately licensed supervisor on the site where the application is being made, or who is unable to identify their supervisor, will be - considered unlicensed and subject to enforcement actions in accordance to ORS 634.900." 16. OAR 603-057-0001(10) states: "immediate Supervision" means supervision by an appropriately licensed applicator who is: Located on the pesticide application site at all times during the application; and Available at the specific point of pesticide use within a time period of no more than five minutes." 17. ORS 634.372(9) states person may not As a pesticide operator, engage in the business of, or represent or advertise as being in the business of, applying pesticides upon the land or property of another, without ?rst obtaining and maintaining a pesticide operator?s license. The operator also may not engage in a class of pesticide application business that is not specifically authorized by license issued by the State Department of Agriculture. The operator also may not employ or use any person to apply or spray pesticides who is not a licensed pesticide applicator or pesticide trainee. 18. ORS 634.372(8) states person may not As a pesticide applicator, work or engage in the application of any classes of pesticides without first obtaining and maintaining a pesticide applicator's license, or apply pesticides that are not specifically authorized by such license. 19. ORS 634.372(10) states: person may not: As a pesticide trainee, work or engage in the application of any class of pesticides without first obtaining and maintaining a pesticide trainee?s certificate and is otherwise in compliance with the provisions of this chapter.? 20. ORS 634.146(1) states "Pesticide operators shall prepare and maintain records on forms approved by the State Department of Agriculture. Such records shall inctude: The name of the person for whom the pesticide was applied. The approximate location of the land or property on which the pesticide was applied. (0) The date and approximate time of application. The person who suppiied the pesticides. The trade name and the strength of such pesticides. The amount or concentration (pounds or gallons per acre of active ingredient or concentration per approximately 100 gallons). (9) The specific property, crop or crops to which the pesticide was applied. The summary information of equipment, device or apparatus used and, if applied by aircraft, the Federal Aviation Administration number. The names of the pesticide applicator or pesticide trainees who did the actual application or Spraying." 21. OAR 603-057-0130 states; (3) A pesticide appiicator and public applicator shall include their full name and pesticide applicator license number legibly on the records required by ORS 634.116 and 634.146. (4) If a pesticide application is conducted by a Pesticide Apprentice or an Immediately Supervised Pesticide Trainee, then the names and pesticide license numbers of both the Pesticide Highlanders Forest, LLC Notice ofVioiation and Civil Penalty Page 5 of 16 Apprentice or Immediately Supervised Pesticide Trainee and their supervising applicator must be included legibly on the record. 22. 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." 23. ORS 634.900 authorizes the Department to impose Civil Penalties for violations of ORS Chapter 634. ORS 634.900(2) and (3) state that: Notwithstanding subsection (1) of this section, if the violation of a provision relating to pesticide application, sale or labeling results from gross negligence or willfut misconduct, the civil penalty for a first or subsequent violation may not exceed $10,000. (3) A civil penalty may not be imposed under this section for violations other than those involving pesticide application. sale or labeling violation under this chapter." 24. OAR 603-057-0500(13) states that ?Wiliful misconduct' means an act or omission that is characterized by or resulting from calculation and consideration of effects and consequences, and with awareness that the act or omission will be incompatible with any purpose of the State Pesticide Control Act." OAR 603-057-0500(5) states that "Gross negligence? means an act or omission that does not reflect an exercise of reasonable care under the circumstances and that is characterized by conscious indifference to or reckless disregard of any purpose of the State Pesticide Control Act.? 25. ORS 634.915 states that: The State Department of Agriculture shall adopt by rule a schedule establishing the amount of civil penalty that may be imposed for a particular violation. (2) in imposing the penalty pursuant to the schedule authorized by this section, the Director of Agriculture shall consider the following factors: The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation. Any prior violations of statutes, rules or orders pertaining to pesticide application. sale or labeHng. The gravity and magnitude of the violation. Whether the violation was repeated or continuous. Whether the cause of the violation was an unavoidable accident, negligence or an intentional act. The violator's cooperativeness and efforts to correct the violation. (9) The immediacy and extent to which the violation threatens the public health or safety.? 26. OAR 603- 057- 0500 through 603- 057- 0532 provides rules and formulae for calculating the civil penalties authorized by ORS 634. 900 through 634.915. 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." 27. ORS 634.900 and OAR 603-057-0510 authorize the Department to issue Notices of Violation for violations of ORS Chapter 634. 28. ORS chapter 63 relates to limited liability companies. ORS 63.001 provides definitions. ?Limited liability company? means an entity that is an unincorporated association having one or more members that is organized under chapter 63. ?Manager? means a person or persons, who need not be members, designated by the members of a manager?managed limited liability company to manage the limited liability company?s business and affairs. ?Member? means a person or persons with both an ownership interest in a limited liability company and all the rights and obligations of a member specified in chapter 63; it does not include an assignee of an ownership interest who has not also acquired the voting Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 6 of 16 and other rights appurtenant to membership. ?Manager-managed limited iiability company? means a limited liability company that is designated as a manager-managed limited liability company in its articles of organization or whose articles of organization otherwise expressiy provide that the limited liability company will be managed by a manager or managers. ?Member-managed limited liability company" means a limited liability company other than a manager-managed limited liability company. 29. ORS 63.057 provides that operating agreements may provide for the regulation and management of the affairs of the limited liability company in any manner not inconsistent with the articles of organization and may be in writing or oral. ORS 63.077 provides that, unless the articles or organization provide otherwise, the limited liability company may: make and alter an operating agreement; and elect or appoint managers, employees or agents of the limited liability company, and de?ne their duties. 30. ORS 63.130 provides that, unless the articles of organization or any operating agreement provides otherwise: each member has equal rights in the management and conduct of the business of a member-managed limited iiability company; and each manager has equal rights in the management and conduct of the business of a management-managed limited company. ORS 63.140 provides that, subject to limitations not reievant here: each member is an agent of a member~managed limited liability company; and that each manager is an agent of a management?managed limited liability company. il. OF FACT ODA Pesticides Case No. 150266 1. This Notice and Order is the result of a routine pesticide Application Record Inspection initiated by the Department on February 20, 2015. The purpose of the Application Record Inspection was to inspect licensing of the company as a pesticide operator, licensing of agents or employees as pesticide applicators, and records of commerciai pesticide applications. The representative of Highlanders who was in contact with ODA regarding this inspection was member/manager Eoucario Mejia. 2. Highlanders Forest, LLC (Highlanders) is an Oregon iimited liability company with a principal place of business at 2348 Beail Lane, Central Point, Jackson County, Oregon, from where it provides work crews to forest owners and managers; the services these crews perform include some pesticide application. 3. in September of 2011 ODA initiated an investigation of a complaint about Highlanders' use of pesticides in Douglas County. This investigation revealed that for some of its commercial pesticide applications Highlanders had been using appiicators who were not licensed as pesticide applicators or trainees. ODA issued an enforcement action for these violations, discussed the requirements with Mr. Mejia, and then on August 65, 2012 issued its Final Order, confirming the violations. Highlanders did not appeal the Final Order (ODA Pesticides case 120155). 4. Highlanders was licensed by the Oregon Department of Agriculture as a Pesticide Operator during 2012 through 2014, license number AG-L10080150PO. This license was issued in February of 2009 and includes the Forestry catagory. 5. During 2012 through 2014 Highlanders used various agent or empioyees, many as pesticide applicators, including the following persons who are or have been licensed by ODA as Commercial Pesticide Applicators (CPA) or Immediately Supervised Pesticide Trainees (IST): Name License number Date initiated Expiration date Jaime Escobedo Garcia AG-L101296OCPA 5-25-2010 12-31-2016 Eoucario Mejia 6-16~2009 12-31a2016 Saul R. Rodriguez AG-L1 01 9501 CPA 11-23-2011 12-31-2016 Hector J. Saiazar AG-L018017OCPA 8-5-2005 12-31-2016 Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 7 of 16 Teodulo Arellano AG-L1023768IST 10-26-2012 12-31-2016 Nicolas Bazan AG-L1024072IST 10-26-2012 12-31-2015 Jaime Diaz 10?26?2012 12451-2016 All of the CPA licenses listed here include at least the Forest category. 6. During 2012 through 2014 Highlanders made the below-listed pesticide applications to forest properties of others in Oregon. Each application was made by a crew of agents or employees of Highlanders. under the supervision of the listed CPA or foreman. also working as an agent or employee of Highlanders: In 2012: In 2013: In 2014: Date IMG Supervising Date IMG Supervising Date Supervising CPA (mo- CPA or foreman (mo? CPA or foreman (mo- or foreman day) day) day) 8-25 1961 Eduardo Vargas 1-5 1970 Eraclio Bazan 1-13 2002 Jaime Diaz 9?5 1962 Eraclio Bazan 4-30 1971 Eraclio Bazan 1-15 2003 Jaime Diaz 11-11 1978 TeodoloArellano 1-6 2004 Hector J. Salazar, Basilio Cortez as foreman ?9-18 1982 Nicolas Bazan 1-7 2005 Hector J. Salazar, Basilio Cortez as foreman 1-8 2006 Basilio Cortez Most of these applications were of various herbicide products. Highlanders? records of these applications are documented in photographs taken by ODA, which are referred to herein by image number (IMG) or Additional document number. The Department has no record that Eduardo Vargas, Eraclio Bazan, Teodolo Arrelano, Nicolas Bazan, Jaime Diaz, or Basilio Cortez were licensed as pesticide applicators during these pesticide applications, which may be referred to herein as the subject applications. 7. The subject applications were made at least in part by the 22 below-listed supervised persons, in the capacity of agents or employees of Highlanders: Andres Cortez Jose Bazan Chavez Elias Bazan Bazan Roberto Lopez Fidel Chavez Velasquez Sergio Bazan Bazan Nabor Cortez Armando Perez Mauricio Perez Eraclio Bazan Agustin Bazan Damian Tena Humberto Calderon Eridany Calderon Ricardo Calderon Juan Chavez Elias Gonzales Chavez Felix Cortes Elias Bazan Ayala Abelino Sanchez Edy Bazan Paco Raul Ayala The Department has no record that any of these individuals were licensed as pesticide trainees or applicators during the subject applications. 8. On February 20, 2015 ODA initiated the Application Record Inspection and reviewed Highlanders? records of the subject applications. The Department also reviewed records of other forest applications performed by Highlanders during 2012 through 2014. In total about 40 records were reviewed; ODA photographed them and some individual records are referred to herein by image number. Of these 40 records: Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 8 of 16 Most failed to include names and license numbers for ail of the applicators or trainees who were performing the applications. Many or most of the records stated that the application was performed by a crew, but did not identify the crew members, except, in some cases, for the foreman. Severai failed to clearly indicate the amount of product used or how it was diluted, or provided a quantity of material used but did not make clear whether the quantity was of the concentrated product or of the diluted mixture: IMG 1954, 12-13-2012 MG 1955, 12-12-2012, Starker Forests' NE Vaile Creek Rehab MG 1956, 12-12-2012, Starker Forests' West Hatchery Line unit MG 1960, 11-15-2012 11-11-2013 1983, 4-11?2013 198611~1~2013 MG 1988, 9-3?2013 IMG 1994, 1?9-2014 IMG 2006, 1-8-2014 Several failed to specify the type of equipment used to apply the pesticide product/s: IMG 1959, 1145?2012 IMG 1961, 8-25-2012 IMG 1970, 1-5-2013 IMG 1971, 4-30-2013 IMG 1973, 10-4-2013 IMG 1974, 10-7-2013 MG 1975, 10-87-2013 MG 1991, 1-21-2014 MG 1995, 1-15-2014 Two failed to identify the pesticide product/s used: IMG 2006, 1-8?2014. ill. ULTIMATE FINDINGS OF FACT 1. Highlanders Forest, LLC is an Oregon-licensed Commercial Pesticide Operator, which provides forest management services, including pesticide applications, to Oregon forestland owners and managers. 2. During 2012 through 2014 Highlanders applied pesticides onto Oregon properties of others through its various supervised agents or employees. During these subject applications many of these supervised agents or employees were not licensed by ODA as Pesticide Applicators or Trainees. Prior to this time Highlanders had received an enforcement action from ODA for the same violative acts. 3. Some of the subject applications were supervised by one or the other of six individuals. Each of these individuals supervised at least one of the subject appiications, at which time he was not licensed by ODA as a CPA. 4. Highianders prepared and maintained records of the commercial pesticide applications it performed in Oregon during 2012 through 2014. ODA inspected these records and found that many were lacking one or more of the following elements required by ORS 634.146 and OAR 603-057-0130: Highlanders Forest, LLC Notice of Violation and Civii Penalty Page 9 of 16 Applicator or trainee name and license number. Amount of product used or how it was diluted. Type of equipment used to apply the pesticide product/s. Identify of pesticide product/s used. 5. The importance of current valid licensing for commercial pesticide use has been well known in Oregon for many years. For various health and environmental reasons, the public has a strong interest in knowing that persons who apply pesticides onto the properties of others, or who appiy Restricted Use Pesticides, have shown the knowledge required to get licensed and have continued to work with the pesticide reguiatory program and take the measures and precautions needed to maintain their licenses. Mr. Mejia, an experienced CPA, was aware of this, and through him and other Highlanders was as well. From Mr. Mejia?s training and experience he and Highlanders were aware of legal requirements regarding pesticide licensing including the need to use only validiy-licensed applicators and trainees when appiying pesticides onto Oregon properties of others. Mr. Mejia, and through him, Highlanders, was aware that three purposes of the State Pesticide Control Act are to prevent adverse heaith impacts from pesticides, to regulate the use of pesticides in the public interest, to maintain high standards in the use of pesticides. Mr. Mejia and Highlanders knew that the protection of Oregon?s health and environment from adverse pesticidal impacts depends on commercial pesticide applicators and trainees being properly licensed. By having applicators and trainees licensed ODA is better able to assure that pesticides are used responsibly in Oregon, and to maintain the ability to effectively use pesticides without unacceptable risks. A person applying or using pesticides in a responsible manner in Oregon would comply with pesticide licensing requirements. 6. ORS Chapter 634 requires pesticide applicators and trainees to obtain and maintain pesticide licenses; ORS 634.372(9) prohibits CPOs from using or employing applicators and trainees as such if they are not property licensed. Highlanders knew that many of its applicators and trainees did not have licenses yet used or employed them to apply pesticides onto the Oregon properties of others. Highlanders benefitted from the pesticide education and experience Mr. Mejia and other CPAs had acquired; based on that education and experience Mr. Mejia and Highlanders were aware of pesticide licensing requirements. 7. On various dates in 2012, 2013, and 2014 Highlanders directed several unlicensed applicators to appiy pesticides and lead crews of trainees as they applied pesticides onto the Oregon properties of others. Also on various dates in 2012, 2013, and 2014, either directly or through applicator/foreman, Highlanders directed crews of applicator/trainees to apply pesticides onto the Oregon prOperties of others. During these times ODA's to protect public health through the pesticide licensing program was compromised. 8. Highlanders performed the subject applications without licensed pesticide applicators or trainees in knowing and willful violation of the law. 9. Highlanders calculated and considered the effects and consequences of using uniicensed applicators and trainees to perform commercial pesticide applications. Before, during and after the subject applications, Highlanders had access to ORS Chapter 634 and to ODA, and knew the pesticide licensing requirements. During the subject applications Highlanders knew that many of its applicators were not licensed. This calculation and consideration occurred after Highlanders had conferred with ODA about applicator licensing in a previous enforcement action and was explicitly told that commercial pesticide applications could not lawfully be performed in Oregon with uniicensed applicators. Highlanders knew that using or employing an unlicensed commercial pesticide applicator was an act or omission that was incompatible with purposes of the State Pesticide Control Act: To prevent adverse health impacts from pesticides, to regulate the use of pesticides in the public interest, and to maintain high standards in the use of pesticides. Highlanders Forest, LLC Notice of Violation and Civii Penalty Page 10 of 16 10. Highlanders did not exercise reasonable care in relation to the subject applications because it performed commercial pesticide applications through applicators or trainees without Oregon pesticide applicator or trainee licenses. Highlanders? failure to comply with the statutory licensing requirements, when ODA needed to be able to assure the public that applicators in Oregon were licensed, were acts or omissions that did not reflect the exercise of reasonable care. During these acts or omissions Highlanders was aware of requirements in ORS Chapter 634 regarding licensing and why ODA and the public want applicators to be licensed. In committing these acts or omissions Highlanders was consciously indifferent to or recklessly disregarded purposes of the State Pesticide Control Act: To prevent adverse health impacts from pesticides, to regulate the use of pesticides in the public interest, and to maintain high standards in the use of pesticides. These ultimate findings of fact are based on the findings of fact. lV. OF LAW The Oregon Department of Agriculture determines that Highlanders Forest, LLC violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION NO. 1 Highlanders Forest, LLC violated ORS which states A person may not As a pesticide operator, employ or use any person to apply or spray pesticides who is not a licensed pesticide applicator or pesticide trainee. During 2012 through 2014 Highlanders made various pesticide applications to forest properties of others in Oregon. Each application was made by a? crew of agents or employees of Highlanders, under the supervision of a CPA or foreman, also working as an agent or employee of Highlanders. These supervisors included: Eduardo Vargas Teodolo Arrelano Jaime Diaz Eraclio Bazan Nicolas Bazan Basilio Cortez Each of these six individuals supervised at least one of the subject applications, at which time he was not licensed by ODA as a CPA. The subject applications were made at ieast in part through the 22 below-listed supervised agents or employees of Highlanders: Andres Cortez Jose Bazan Chavez Elias Bazan Bazan Roberto Lopez Fidel Chavez Velasquez Sergio Bazan Bazan Nabor Cortez Armando Perez Mauricio Perez Eraclio Bazan Agustin Bazan Damian Tena Humberto Calderon Eridany Calderon Ricardo Calderon Juan Chavez Elias Gonzales Chavez Felix Cortes Elias Bazan Ayala Abelino Sanchez Edy Bazan Ayala Paco Raul Ayala The Department has no record that any of these individuals were licensed as pesticide trainees or applicators during the subject applications. Using the six unlicensed CPAs to supervise pesticide applications onto the Oregon properties of others, and using these 22 supervised persons who were not licensed as either trainee or CPA to perform such pesticide applications, constituted 56 instances of employing or using an unlicensed person in violation if ORS This violation is designated as Violation No. i. - Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 11 of 16 Highlanders? performing commercial pesticide applications in Oregon through unlicensed applicators after ODA had specifically informed it that such use or employment was unlawful, was the result of willful misconduct or gross negligence and occurred after June 25, 2007. ORS 634.900(2) authorizes a civil penalty of up to $10,000 for this violation. 1. Since it began operating as a CPO in Oregon Highlanders has been responsible for ensuring that it used or employed only licensed applicators when performing commercial pesticide applications in Oregon. After receiving an enforcement action from ODA for the use of unlicensed applicators, and being told by ODA that this was violative of ORS Chapter 634, Highlanders intentionally and willfully continued to use or employ unlicensed applicators when performing commercial pesticide applications in Oregon, compromising?s ODA's ability to ensure the public that commercial pesticide applications were performed by properly licensed applicators. Disregarding Oregon's pesticide licensing requirements was contrary to the public's interest in having effective pesticides available for use at acceptable levels of risk. This public interest is supported by three purposes of the State Pesticide Control Act. Those purposes are to prevent adverse health impacts from pesticides, to regulate the use of pesticides in the public interest, and to maintain high standards in the use of pesticides. Highlanders, through Mr. Mejia and other CPAs, had experience and/or training regarding pesticides and took actions relevant to these matters. Highlanders knew that it was unlawful to use unlicensed applicators to perform commercial pesticide applications in Oregon, knew that it was inconsistent with purposes of the State Pesticide Control Act, and knew that it would compromise ability to protect public health and the environment. 2. Highlanders calculated and considered the effects and consequences of using or employing unlicensed applicators to perform commercial pesticide applications in Oregon, and persisted in using them, knowing that such unlicensed activity was incompatible with at least three purposes of the State Pesticide Control Act: To prevent adverse health impacts from pesticides, to regulate the use of pesticides in the pubiic interest, and to maintain high standards in the use of pesticides. Alternatively, in using or employing unlicensed commercial pesticide applicators, Highlanders committed an act or omission that did not reflect reasonable care under the circumstances, and was characterized by conscious indifference to or reckless disregard of at least three purposes of the State Pesticide Control Act: To prevent adverse health impacts from pesticides, to regulate the use of pesticides in the public interest, and to maintain high standards in the use of pesticides. 3. ORS Chapter 634 and OAR chapter 603, division 57, provided understandable information about licensing requirements, and Highlanders had discussed them with ODA. CPOs must use or employ only Oregon-licensed pesticide applicators and trainees when applying pesticides to Oregon properties of others. Highlanders knew the requirements of ORS Chapter 634, knew that it had been specifically told by ODA not to use unlicensed applicators and trainees in Oregon, and disregarded Oregon's pesticide law. 4. Mr. Mejia was a managing member of, and pesticide applicator for, Highlanders at all times during 2012 through 2014 that are relevant to these matters. Mr. Mejia was responsible for the operations of Highlanders, including all pesticide application or handling activity. Through its managing member and applicator Mr. Mejia, and other CPAs, Highlanders had experience and training regarding pesticides and took the actions relevant to these matters. Highlanders was responsible for the activities Mr. Mejia performed as a managing member, agent or employee of Highlanders, including pesticide application activity and maintenance of licensing. NO. 2 Highlanders Forest, LLC 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. On February 20, 2015 ODA initiated an inspection of Highlanders Pesticide Application Records for 2012 through 2014. Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 12 of 16 Most of the records reviewed failed to inciude names and license numbers for ail of the applicators or trainees who were performing the applications. Many or most of the records stated that the application was performed by a crew, but did not identify the crewmembers, except, in some cases, for the foreman. ORS and OAR 603-057?0130 require commercial pesticide application records to identify each applicator, supervising applicator, and trainee by full name and pesticide applicator license number. Several of the records reviewed faiied to clearly indicate the amount of product used or how it was diluted, or provided a quantity of material used but did not make clear whether the quantity was of the concentrated product or of the diluted mixture. ORS requires commercial pesticide application records to include ?amount or concentration (pounds or gallons per acre of active ingredient or concentration per approximatefy 100 gallons)." Several of the records reviewed failed to specify the type of equipment used to apply the pesticide product/s. ORS requires commercial pesticide application records to include ?summary information of equipment, device or apparatus used Two of the records reviewed failed to identify the pesticide product/s used. ORS requires commercial pesticide application records to include the ?trade name and the strength of such pesticides.? These faiiures to record elements of information about commercial pesticide applications that are required by ORS 634.146 and OAR 603-057-0130 were in vioiation of ORS This violation is designated as Violation No. 2. These conclusions are based on the findings of fact and ultimate findings of fact, V. PENALTY and DEPARTMENT ACTIONS NO. 1 Civii Penalty The penalty for Violation No. 1 is $10,000.00. The provisions for civil penaities imposed for violations of ORS 634 are given in ORS 634.900. Section (2) of ORS 634.900 states ?Notwithstanding subsection (1) of this section, if the violation of a provision relating to pesticide application, sale or labeling results from gross negligence or willful misconduct, the civil penalty for a ?rst or subsequent violation may not exceed $10,000." The violation cited in this Notice resulted from gross negligence or wilifut misconduct. OAR 603-057- 0500(13) states that ?Willful misconduct' means an act or omission that is characterized by or resulting from calculation and consideration of effects and consequences, and with awareness that the act or omission will be incompatible with any purpose of the State Pesticide Control Act." OAR 603-057-0500(5) states that ?Gross negligence' means an act or omission that does not reflect an exercise of reasonable care under the circumstances and that is characterized by conscious indifference to or reckless disregard of any purpose of the State Pesticide Control Act." The penalty for the violation is calculated using the formuia in OAR 603057-0525 and 603057-0532. The calculation is summarized as follows: NB NB) 2 $10,000.00 20,000.00) $18,000.00 $18,000.00 1 current violation $18,000.00 Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 13 of 16 1. N, the number of times ODA found that Highlanders committed the same violative act within three years prior to and including the date of the current violative act, is 2 (two): ODA Pesticides Case #120155, Final Order issued August 6, 2012; OAR 2. B, the base penalty is $10,000.00; OAR The base penalty was determined as follows: - a. The MAGNITUDE is CATEGORY I (MAJOR) under OAR and OAR b. The GRAVITY is HIGH LEVEL because the products applied were used in wide areas of application; OAR OAR 3. P, the past occurrence of unrelated vioiations is 0 (zero) because there were no unrelated previous violations; OAR OAR 4. H, the history of taking steps to correct a vioiation is 1 (one) because Highlanders Forest, LLC, Inc. took some, but not all feasible steps to correct violative action; OAR OAR Some but not all of Highlanders? employee/applicators were licensed after case #120155. 5. C, cooperativeness is --2 (negative OAR OAR Highlanders was cooperative and readily provided information to the Department. As required by ORS 634.900, the total civil penalty is limited to $10,000.00. VIOLATION NO. 2 Notice of Violation Violation No. 2 (regarding pesticide application recordkeeping) is addressed by means of Notice of Violation; no civil penalty is proposed for Violation No. 2. Once the Department issues a Final Order, it does not anticipate any further action against Highlanders for Vioiation No. 2. 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 business days of the date that you receive the OAR The request should be made to the attention of: MichaeI Babbitt Pesticides Program, Oregon Department of Agricutture 635 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, assigned as required by ORS 183.635. The Director of the Department has authority to issue the final order. Highianders Forest, LLC Notice of Violation and Civil Penalty Page 14 of 16 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: Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301-2532 Any ?nal order regarding this Notice of Violation and Imposition of Civil Penalty will become a part of Highlanders' 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 Highlanders to additional enforcement actions including, but not limited to, civil penalties, product seizure, or license revocation. 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 petition forjudicial review with the Court of Appeals within 60 days from the date this order becomes finalpetition for judicial review within this time period you will lose your right to appeal. +61 2 2 day of Marcia .2016 lfldi KATY coaA? if ?f DIRECTOR . OREGON DEPT. OF AGRICULTURE Highlanders Forest, LLC Notice of Violation and Civil Penalty Page 15 of 16 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 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 Highlanders Forest, LLC Notice of Violation and Civil Penatty Page 16 of 16 HIGHLAN DERS FOREST, LLC Oregon Department of Agriculture, Pesticides Case No. 150266 Notice of Contested Case Rights and Procedures Pursuant to ORS 183.4130), 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 Proposed/Final Order (NICP), and dated March 29, 2016, and those issues related thereto that are properly before the presiding officer 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?s 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 iudge (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 OAi?l 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. 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 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. ?ll. 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 ?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 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 modi?cations 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 ?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