Ore I I Department of Agriculture Administrative Services Kate Brown, Governor 635 C?pitOl St NE Ste 100 PESTICIDES PROGRAM SaleerR 97301-2532 TEL: 503-986-4635 CERTIFIED MAIL June 5Q 2016 Monty R. Yancey 892 Cross Road Klamath Falls, OR 97603 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, ODA PESTICIDES CASE NO. 150464 This is a Notice of Imposition of Civil Penalty and Proposed/Final Order that is based on a pesticide investigation conducted by the Pesticides Program of the Oregon Department of Agriculture. This NOTICE addresses violation of Oregon Revised Statutes (ORS) Chapter 634. The action is taken pursuant to statutory and regulatory provisions including but not limited to ORS Chapter 183, ORS 634.900 et seq., Oregon Administrative Rules (OAR) Chapter 137, Division 3, and OAR 603-057-0500 et seq. Also enclosed is information on contested case rights and procedures. This information is provided for your consideration should you select to contest the NOTICE and request an administrative hearing of this matter. Read all 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. Important Note: The Department is also issuing a separate proposed enforcement action to your employer Macy's Flying Service, Inc. That proposed action is specific to Macy's Flying Service Inc. Your request for a hearing or payment of penalty is separate from and has no bearing on the business? response to its enforcement action, although hearing processes could be combined if both parties request hearings. .QMW DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Encl: Notice of Contested Case Rights and Procedures 63> STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture In the Matter of: NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, for Violation of the State Pesticide Control Act, ODA Pesticides Case No. 150464 Monty R. Yancey a commercial pesticide applicator The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $407.00, against Monty R. Yancey (Mr. Yancey) 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: Oregon Revised Statutes (ORS) Chapters 183 (administrative law), 561 (agriculture), and 634 (pesticides); Oregon Administrative Rules (OAR) Chapter 137, Division 3 (contested case procedures); and OAR Chapter 603, Division 57 (pesticide control). 2. Oregon?s pesticide control law is known as the State Pesticide Control Act and is codified in ORS Chapter 634. 3. ORS 634.006(8) states: ?Pesticide? includes: ?Defoliant? which means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant with or without causing abscission; ?Desiccant? which means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue; ?Fungicide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any fungus; ?Herbicide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any weed; ?lnsecticide? 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." Monty R. Yancey Civil Penalty Page 2 of 12 4. 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.? 5. 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.? 6. 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." 7. ORS 634.006(9) states ?Pesticide applicator? or ?applicator? means an individual 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 application 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, if certified under ORS 634.128, by aircraft." 8. ORS Chapter 634 authorizes the Oregon Department of Agriculture to issue pesticide licenses, including licenses for operators and applicators. ORS 634.057, 634.116, and 634.122. 9. 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. 10. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 11. 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 rule 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.? 12. ORS 634.900 et seq. authorizes ODA to impose civil penalties for violations of provisions of ORS Chapter 634. ORS 634.375 states: ?The State Department of Agriculture may suspend, revoke or refuse to renew a license, certificate or other authorization issued to a person under this chapter if the person fails to pay a civil penalty under ORS 634.900 on or before 90 days after the date that the order imposing the civil penalty becomes final by operation of law or on appeal.? 13. OAR 603-057-0500 ef seq. provides formulae for calculating the civil penalties authorized by ORS 634.900. OAR 603-057-0502(7) states ?Civil penalties shall be due and payable ten (10) business days after the order becomes final by operation of law or on appeal. A person may pay a civil penalty before an order becomes final. Payment of a civil penalty before an order becomes final is an admission by the person of all of the allegations in the Notice of Imposition of Civil Penalty.? II. FINDINGS OF FACT ODA Pesticides Case No. 150464 Monty R. Yancey Civil Penalty Page 3 of 12 1. This Notice of Imposition of Civil Penalty results from a pesticide use investigation conducted by the Department in response to a complaint about off-site deposition or drift of pesticides applied to an alfalfa field in Klamath County, Oregon in February of 2015. The person in contact with ODA regarding this matter was Nick Macy (Mr. Macy). 2. Macy's Flying Service Inc. (Macy?s) is a California business corporation with a principal place of business at 530 CO Road 176, Tulelake, California. Mr. Macy is listed as the President of Macy's. Macy?s provides aerial application services to agricultural growers in Klamath County, Oregon, which has included the application of pesticides to growing crops. 3. Macy's uses various agents and employees to make pesticide applications onto the pr0perty of others. These persons have included Monty R. Yancey (Mr. Yancey). 4. Macy?s is licensed by ODA as a Commercial Pesticide Operator, license number AG- L0000994CPO. This license was first issued in June of 1985. Mr. Yancey is licensed by ODA as a Commercial Pesticide Applicator, license number AG-L01259280PA. This license was first issued in April of1994. 5. On or about February 17 and 19, 2015, Mr. Yancey intentionally used an airplane to apply a mixture of pesticides onto a 234-acre alfalfa field in Klamath County, Oregon, approximately centered at 42? 13? 46" latitude, 121? 52? 4? longitude, about 4.5 miles west of Klamath Falls, Oregon. The pesticides Mr. Yancey applied here included: Glory Herbicide, EPA Reg. 66222-106, Makhteshim Agan of North America, Inc., Raleigh, North Carolina (active ingredient Metribuzin) Gramoxone SL 2.0 Herbicide, EPA Reg. 100-1431, Syngenta Crop Protection, LLC, Greensboro, North Carolina paraquat dichloride) For this application, Mr. Yancey used a fixed-wing aircraft. This pesticide application may be referred to herein as the February 2015 application; the treated field may be referred to as the field or the alfalfa field. 6. The Gramoxone SL 2.0 label states, under Environmental Hazards: Gramoxone SL 2.0 is a contact herbicide that desiccates all green plant tissue. Paraquat dichloride is a nonselective herbicide and will cause damage to nontarget crops and plants if off-target movement occurs. Extreme care must be taken to ensure that off-target drift is minimized to the greatest extent possible. Do not apply under conditions involving possible drift to food, forage, or other plantings that might be damaged or the crops thereof rendered unfit for sale, use, or consumption. Do not apply when weather conditions favor drift from treated areas. To avoid drift, do not make aerial applications during periods of thermal inversion. Refer to the local state laws, regulations, guidelines and spray drift information contained in the Directions for Use section for proper application to avoid off-target movement. And under USE INSTRUCTIONS AND INFORMATION: Spray Drift Information Avoiding spray drift at the application site is the responsibility of the applicator. The interaction of many equipment and weather related factors determine the potential for spray drift. The applicator and the grower are responsible for considering all these factors when making decisions. The following drift management requirements must be followed to avoid off-target drift movement from aerial applications to agricultural field crops. These requirements do not apply to forestry applications, public health uses or to applications using dry formulations. - The distance of the outer most nozzles on the boom must not exceed 3/4 the length of the wingspan or Monty R. Yancey Civil Penalty Page 4 of 12 rotor. - Nozzles must always point backward parallel with the air stream and never be pointed downwards more than 45?. Where states have more stringent regulations, they shall be observed. The applicator should be familiar with and take into account the information covered in the Aerial Drift Reduction Advisory Information. Aerial Drift Reduction Advisory Information (This section is advisory in nature and does not supersede the mandatory label requirements.) Information on Droplet Size The most effective way to reduce drift potential is to apply large droplets. The best drift management strategy is to apply the largest droplets that provide sufficient coverage and control. Applying larger droplets reduces drift potential, but will not prevent drift if applications are made improperly, or under unfavorable environmental conditions (see Wind, Temperature and Humidity, and Temperature lnversions). Controlling DrOpIet Size - Volume - Use high flow rate nozzles to apply the highest practical spray volume. Nozzles with higher rated flows produce larger droplets. - Pressure - Do not exceed the nozzle manufacturer?s recommended pressures. For many nozzle types lower pressure produces larger droplets. When higher flow rates are needed, use higher flow rate nozzles instead of increasing pressure. - Number of Nozzles - Use the minimum number of nozzles that provide uniform coverage. - Nozzle Orientation - Orienting nozzles so that the spray is released parallel to the airstream produces larger dr0plets than other orientations and is the recommended practice. Significant-deflection from horizontal will reduce droplet size and increase drift potential. - Nozzle Type - Use a nozzle type that is designed for the intended application. With most nozzle types, narrower spray angles produce larger droplets. Consider using low-drift nozzles. Solid stream nozzles oriented straight back produce the largest droplets and the lowest drift. Boom Length For some use patterns, reducing the effective boom length to less than 3/4 of the wingspan or rotor length may further reduce drift without reducing swath width. Application Height Applications must not be made at a height greater than 10 feet above the top of the largest plants unless a greater height is required for aircraft safety. Making application at the lowest height that is safe reduces exposure of droplets to evaporation and wind. Swath Adjustment When applications are made with a crosswind, the swath will be displaced downwind. Therefore, on the up and downwind edges of the field, the applicator must compensate for this displacement by adjusting the path of the aircraft upwind. Swath adjustment distance should increase, with increasing drift potential (higher wind, smaller drops, etc.). Wind Drift potential is lowest between wind speeds of 2-10 mph. However, many factors, including droplet size and equipment type determine drift potential at any given speed. Application must be avoided below 2 due to variable wind direction and high inversion potential. NOTE: Local terrain can influence wind patterns. Every applicator should be familiar with local wind patterns and how they affect Spray drift. Temperature and Humidity When making applications in low relative humidity, set up equipment to produce larger droplets to compensate for evaporation. Droplet evaporation is most severe when conditions are both hot and dry. Temperature lnversions Applications must not occur during a temperature inversion because drift potential is high. Temperature inversions restrict vertical air mixing, which causes small suspended droplets to remain in a concentrated cloud. This cloud can move in unpredictable directions due to the light variable winds common during inversions. Temperature inversions are characterized by increasing temperatures with altitude and are Monty R. Yancey Civil Penalty Page 5 of 12 common on nights with limited cloud cover and light to no wind. They begin to form as the sun sets and often continue into the morning. Their presence can be indicated by ground fog; however, if fog is not present. inversions can also be identified by the movement of smoke from a ground source or an aircraft smoke generator. Smoke that layers and moves laterally in a concentrated cloud (under low wind conditions) indicates an inversion, while smoke that moves upward and rapidly dissipates indicates good vertical air mixing. Sensitive Areas The pesticide must only be applied when the potential for drift to adjacent sensitive areas residential areas, bodies of water, known habitat for threatened or endangered species, non-target crops) is minimal when wind is blowing away from the sensitive areas). 7. Gramoxone SL 2.0 Herbicide is a Restricted Use Pesticide, due to acute toxicity. 8. The Glory Herbicide label states, under ENVIRONMENTAL HAZARDS: Do not apply when weather conditions favor drift from areas And under GENERAL PRECAUTIONS AND RESTRICTIONS: Do not allow sprays to drift on to adjacent desirable And under AERIAL DRIFT REDUCTION ADVISORY INFORMATION: Avoiding spray drift at the application site is the responsibility of the applicator. The interaction of many equipment- and weather-related factors determine the potential for spray drift. The applicator and the grower are responsible for considering all these factors when making decisions. The following drift management requirements must be followed to avoid off-target drift movement from aerial applications to agricultural field crops. These requirements do not apply to forestry applications, public health uses, or to applications using dry formulations. 1. The distance of the outer most nozzles on the boom must not exceed the length of the winQSpan or rotor. 2. Nozzles must always point backward parallel with the air stream and never be pointed downwards more than 45 degrees. 3. Where states have more stringent regulations, they should be observed. 4. The applicator should be familiar with and take into account the information covered in the AERIAL DRIFT REDUCTION ADVISORY INFORMATION. INFORMATION ON DROPLET SIZE: The most effective way to reduce drift potential is to apply large droplets. The best drift management strategy is to apply the largest droplets that provide sufficient coverage and control. Applying larger droplets reduces drift potential but will not prevent drift if applications are made improperly or under unfavorable environmental conditions (see WIND, TEMPERATURE AND HUMIDITY, and TEMPERATURE INVERSTIONS). CONTROLLING DROPLET SIZE: - Volume-Use high flow rate nozzles to apply the highest practical spray volume. Nozzles with higher rated flows produce larger droplets. - Pressure-Do not exceed the nozzle manufacturer's recommended pressures. For many nozzle types, lower pressure produces larger droplets. When higher flow rates are needed, use higher flow rate nozzles instead of increasing pressure. - Number of Nozzles-Use the minimum number of nozzles that provide uniform coverage. - Nozzle Orientation-Orienting nozzles so that the spray is released parallel to the airstream produces larger droplets than other orientations and is the recommended practice. Significant deflection from horizontal will reduce droplet size and increase drift potential. Monty R. Yancey Civil Penalty Page 6 of 12 - Nozzle Type-Use a nozzle type that is designed for the intended application. With most nozzle types, narrower spray angles produce larger droplets. Consider using low-drift nozzles. Solid stream nozzles oriented straight back produce the largest droplets and the lowest drift. BOOM LENGTH: For some use patterns, reducing the effective boom length to less than V: of the wingspan or rotor length may further reduce drift without reducing swath width. APPLICATION HEIGHT: Applications should not be made at a height greater than 10 feet above the top of the largest plants unless a greater height is required for aircraft safety. Making applications at the lowest height that is safe reduces exposure of droplets to evaporation and wind. SWATH ADJUSTMENT: When applications are made with a crosswind, the swath will be displaced downwind. Therefore, on the up and downwind edges of the field, the applicator must compensate for this displacement by adjusting the path of the aircraft upwind. Swath adjustment distance should increase with increasing drift potential (higher wind, smaller drops, etc.) WIND: Drift potential is lowest between wind speeds of 2 to 10 mph; however, many factors, including droplet size and equipment type, determine drift potential at any give speed. Application should be avoided below 2 due to variable wind direction and high inversion potential. NOTE: Local terrain can influence wind patterns. Every applicator should be familiar with local wind patterns and how they affect spray drift. TEMPERATURE AND HUMIDITY: When making applications in low relative humidity, set up equipment to produce larger droplets to compensate for evaporation. Droplet evaporation is most severe when conditions are both hot and dry. TEMPERATURE INVERSIONS: Applications should not occur during a temperature inversion because drift potential is high: Temperature inversions restrict vertical air mixing, which causes small suspended droplets to remain in a concentrated cloud. This cloud can move in unpredictable directions due to the light variable winds common during inversions. Temperature inversions are characterized by increasing temperatures with altitude and are common on nights with limited cloud cover and light to no wind. They begin to form as the sun sets and often continue into the morning. Their presence can be indicated by ground fog; however, if fog is not present, inversions can also be identified by the movements of smoke from a ground source or an aircraft smoke generator. Smoke that layers and moves laterally in a concentrated cloud (under low wind conditions) indicates an inversion while smoke that moves upward and rapidly dissipates indicates good vertical air mixing. SENSITIVE AREAS: GLORY should only be applied when the potential for drift to adjacent sensitive areas (eg. residential areas, bodies of water, known habitat for threatened or endangered species, non-target crops) is minimal (eg. when wind is blowing away from the sensitive areas). 9. Jim Chambers (Mr. Chambers) owns a parcel of land directly to the southeast of and adjacent to the alfalfa field. This parcel may be referred to as ?the Chambers' property.? On May 19, 2015, Mr. Chambers told ODA that a number of trees on the Chambers' property had been damaged from the February 2015 application. 10. On May 21, 2015 ODA met with Mr. Chambers and visited the Chambers? property. The Department observed ponderosa pine trees exhibiting needle browning on the side of the trees facing north. While onsite, ODA collected the following samples, in the order listed: Sample Description 150464-1 Swab, control 150464?2 Swab, water collection system east panel on the Chambers' prOperty 150464-3 Swab. water collection system west panel on the Chambers? property 150464-4 Swab, water collection system water tank on the Chambers? property 150464?5 Foliage, south side of Chambers? property 150464-6 Soil, Chambers? property east of the water collection system 150464-7 Foliage, Chambers? property near the solar panels 150464-8 Water, water tank on the Chambers' property 150464-9 Soil. Chambers? property near the north fence Monty R. Yancey Civil Penalty Page 7 of 12 150464-10 Foliage, Chambers? property near the north fence 150464-11 Swab, tarp on Chambers? property near the north fence 150464-12 Foliage. Chambers? prOperty near the application site 150464?13 Soil, Chambers? property near the application site 150464-14 Swab, water tank on the Chambers' property near the application site All of the samples were secured and delivered to ODA Laboratory Services, Portland, Oregon (the ODA lab), with a request for analysis for paraquat and metribuzin. 11. 12. On June 1, 2015, ODA contacted Mr. Macy. During this and subsequent communications, Mr. Macy described the February 2015 application, and provided a record of the application. On October 21, 2015 the ODA lab issued the following results of its analyses of the samples. Results are given in parts per million (ppm) and micrograms per centimeter squared as indicated in the table below, dependent on the type of sample. The Method Reporting Limit (MRL) for the analyses is also indicated in the table below, dependent on the method used. Sample Description Detected MRL Detected MRL paraquat paraquat metribuzin metribuzin 150464-1 Swab, control n/d 0.002 n/a n/a ug/cm2 150464-2 Swab, water collection system east n/d 0.002 n/a n/a panel ug/cm2 150464-3 Swab, water collection system west n/d 0.002 n/a n/a panel uglcm2 150464?4 Swab, water collection system water n/d 0.002 n/a n/a tank ug/cm2 150464-5 Foliage, south side of Chambers? 0.059 0.010 n/d 0.010 property 150464-6 Soil, east of water collection system n/d 0.10 n/d 0.010 150464-7 Foliage, near the solar panels 0.59 0.010 n/d 0.010 150464-8 Water, water tank on the Chambers? n/d 0.013 n/d 0.010 property 150464-9 Soil, near the north fence n/d 0.10 n/d 0.010 150464-10 Foliage, near the north fence 0.98 0.010 0.017 0.010 150464-11 Swab, tarp near the north fence n/d 0.002 n/a n/a pg/cm2 150464-12 Foliage, Chambers' property near 1.4 0.010 0.016 0.010 application site 150464-13 Soil, Chambers? property near n/d 0.20 0.0089 0.0050 application site 15?0464-14 Swab, water tank near the application n/d 0.002 n/a n/a site pg/cm2 n/d not detected at the MRL. n/a not analyzed for indicated active ingredient. 13. Monty R. Yancey The Department considered possible sources of the detected pesticides. Based on the gradient of detections, the Department?s observations of the and the distance of other potential Civil Penalty Page 8 of 12 application sites of the specific products applied, the February 2015 application is the only likely source of the detected pesticide. ULTIMATE FINDINGS OF FACT 1. Macy's Flying Service, Inc. is an aerial application service provider in Tulelake, California. Its agricultural activities include the application of pesticides onto growing crops. Macy?s is operated by its president, Nick Macy. Its agents or employees have included Monty Yancey. 2. On or about February 17 and 19, 2015, Mr. Yancey intentionally applied a mixture of pesticides onto a 234-acre alfalfa field in Klamath County, Oregon, west of Klamath Falls. One of the pesticides applied was an RUP. 3. Both pesticide labels prescribed avoiding drift at the application site, as well as contact with desirable plants and sensitive areas. The Gramoxone SL 2.0 label states: Extreme care must be taken to ensure that off-target drift is minimized to the greatest extent possible. Do not apply under conditions involving possible drift to food, forage, or other plantings that might be damaged or the crops thereof rendered unfit for sale, use, or consumption. Do not apply when weather conditions favor drift from treated areas. To avoid drift, do not make aerial applications during periods of thermal inversion. Both labels state: Avoiding spray drift at the application site is the responsibility of the applicator. The interaction of many equipment and weather related factors determine the potential for spray drift. The applicator and the grower are responsible for considering all these factors when making decisions. 4. Subsequent to the February 2015 application, samples were taken from a neighboring property. The active ingredients of the pesticides used, paraquat and metribuzin, were then detected at various locations on the neighboring property. The gradient of detections, as well as the Department?s observations, and the distance of other potential application sites for the pesticides used indicate that the February 2015 application was the source of the detected pesticides. These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW The Oregon Department of Agriculture determines that Monty R. Yancey violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION NO. 1 Monty R. Yancey 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 labeling, or as a pesticide consultant or dealer, recommend or distribute such pesticides. Specifically, on February 17 and 19, 2015, Monty Yancey intentionally used an airplane to apply a pesticide onto a 234-acre alfalfa field in Klamath County, Oregon, centered at approximately 42? 13? 46? latitude, 121? 52? 4? longitude, about 4.5 miles west of Klamath Falls, Oregon. The pesticides Mr. Yancey applied here were Glory Herbicide, EPA Reg. 66222-106, and Gramoxone SL 2.0 Herbicide, EPA Reg. 100-1431. Gramoxone SL 2.0 is a Restricted Use Pesticide, its active ingredient is paraquat. Both of the product labels prescribe avoiding spray drift from the application site, as well as contact with desirable plants and sensitive areas. Monty R. Yancey Civil Penalty Page 9 of 12 A neighbor to the treatment site reported damage to his ponderosa pine trees following the February 2015 application, and subsequently samples were taken from the neighbor?s property. The active ingredients of the pesticides applied, paraquat and metribuzin, were detected on the neighbor?s property, and the February 2015 application was the only likely source of the detected pesticides. The Gramoxone SL 2.0 label states: Extreme care must be taken to ensure that off-target drift is minimized to the greatest extent possible. Do not apply under conditions involving possible drift to food, forage, or other plantings that might be damaged or the crops thereof rendered unfit for sale, use, or consumption. Do not apply when weather conditions favor drift from treated areas. To avoid drift, do not make aerial applications during periods of thermal inversion. Both labels state: Avoiding spray drift at the application site is the responsibility of the applicator. The interaction of many equipment and weather related factors determine the potential for spray drift. The applicator and the grower are responsible for considering all these factors when making decisions. Mr. Yancey did not read or comply with the product labels closely enough to be sure that application conditions remained consistent with these label provisions. They did not meet their responsibility of considering all relevant factors or take extreme care to prevent off-target deposition. Intentionally applying these pesticide products without considering all factors and without taking extreme care to ensure that spray conditions remained suitable, as required by the labels, and where some of the material was deposited onto a neighboring property, was a pesticide application inconsistent with its labeling, in violation of ORS This conclusion is based on the findings of fact and ultimate findings of fact. V. PENALTY The penalty for Violation No. 1 is $407.00. The penalty is determined using the criteria in OAR 603-057- 0525 to 603-057-0530. NB NB) $370 $407.00 $407.00 1 violation $407.00 1. N, the number of related violations within a period of three years prior to and including the date of the current violative act, is 1; OAR 2. B, the base penalty is $370.00; OAR The base penalty was determined as follows: a. The MAGNITUDE is CATEGORY (MAJOR) under OAR b. The GRAVITY is HIGH LEVEL because one of the pesticides applied was designated as a restricted use pesticide and the application was made over a wide area; OAR 603-057- OAR 3. P, the past occurrence of unrelated violations is 0 (zero) because there are no past violations within the previous three years; 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 Monty R. Yancey Civil Penalty Page 10 of 12 5. R, preventability of the violation and the presence of negligence or misconduct is 3 because the actions by Monty R. Yancey determined to be violative were reasonably avoidable; OAR 603-057- 0530(1)(e)(C). At the time of the pesticide application activity, Macy's had been a licensed Commercial Pesticide Operator since 1985, and Mr. Yancey had been a licensed Commercial Pesticide Applicator since 1994. Based on this license history and experience Mr. Yancey should have been aware of the need to carefully monitor all factors influencing drift, and to take all needful preventative measures. 6. C, cooperativeness is ?2 (negative OAR Macy?s and its representatives were c00perative and readily provided information to the Department regarding the February 2015 application. Any final order regarding this Notice of Imposition of Civil Penalty will become a part of Mr. Yancey?s history for a period of three years. Any future violations of ORS Chapter 634 or OAR Chapter 603, Division 057 within the next three years will subject Mr. Yancey to additional enforcement actions including, but not limited to, civil penalties, product seizure, or license revocation. VI. RIGHT TO A HEARING You are entitled to a contested case hearing as provided by statues and rules including, but not limited to: ORS Chapter 183, including 183.413 to 183.470, and ORS 183.745; OAR Chapter 137, Division 3, including OAR 137-003-0501 to 137-003-0700; ORS 634.905; and OAR Chapter 603, Division 57. The request for a hearing must be made in writing to the Department within ten business days of the date that you receive the OAR The request should be made to the attention of: Andrea Sonnen Pesticides Program, Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301-2532 If you make a timely request for a hearing you will be 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. If the recipient of the enforcement notice is a corporation, partnership, limited liability company, unincorporated association, trust, or other entity that is not a natural person or individual, it must be represented in the contested case process by an attorney unless otherwise authorized by law. Furthermore, the attorney representing such a corporation or other entity must ratify the request for hearing, in writing, within 28 days of the date that the request is received by the agency; OAR 137-003-0550. This provision does not, however, require any entity to be represented by an attorney at any informal conference. Individuals may but are not required to be represented by counsel. The state will not provide legal counsel in administrative cases such as this, but private legal aid organizations may be able to assist a person with limited financial resources. VII. FINAL ORDER If you do not make a timely request for a hearing, you will waive your right to request a hearing and this order will become final and effective 10 (ten) business days after it is served on you; OAR 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 Monty R. Yancey Civil Penalty Page 11 of 12 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 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 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 forjudicial review within this time period you will lose your right to appeal. 30?5?: dayof Aqu, .2016 DIRECTOR OREGON DEPT. OF AGRICULTURE NOTE: Copies of the Department?s investigation report will be provided upon request. The request must be made in writing. There may be a monetary charge for some reports. The written request should be made to: Oregon Department of Agriculture, Pesticides Program, ATTN: Andrea Sonnen, 635 Capitol Street NE, Salem, Oregon 97301-2532. 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 Monty R. Yancey Civil Penalty Page 12 of 12 Monty R. Yancey Oregon Department of Agriculture, Pesticides Case No. 150464 Notice of Contested Case Rights and Procedures Pursuant to ORS you are entitled to be informed of the following: 1. Time and place of hearing. The time and place of hearing is or will be set forth in the Notice of Hearing issued by the Administrative Law Judge (ALJ) afterthe 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 De artment of Agriculture (ODA), entitled Notice of Imposition of Civil Penalty and Proposed/Final Order (NICP), and dated . time '50} 'l?ily and those issues related thereto that are properly before the presiding of?cer to this proceeding. Law that applies. The matter set for hearing is a contested case. The hearing will be conducted as provided in Chapter 183 and 634 of the Oregon Revised Statutes the administrative rules of the ODA, OAR 603?057-0500 through 603- 057-0515, and the Attorney General's Of?ce 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 ratified 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 financial resources. Administrative Law Judge. The person presiding at the hearing is known as the administrative Iawjudge (ALJ). The ALJ will rule on all matters that arise at the hearing, subject to agency consideration of matters transmitted for agency decision under OAR 137-003-0635 or matters subject to agency review under OAR 137-003-0640 or OAR 137-003-0570. The ALJ will be assigned by the Chief ALJ from the Of?ce of Administrative Hearings (OAH). The OAH consists of employees of, and independent contractors with, the Chief ALJ. The ALJ does not have the authority to make the ?nal decision in the case. The ?nal determination will be made by the Director of the ODA. Discovery. If the agency or the ALJ authorizes discovery, the agency or the ALJ shall control the methods, timing and extent of discovery. Discovery is permitted in this proceeding. Discovery is permitted as provided in OAR 137-003-0570, OAR 137-003-0572, and OAR 137-003-0573. Witnesses. A witness must testify under oath or affirmation 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 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. 11. 12. 13. 14. 15. 16. 17. Admissible evidence. Relevant evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible and will be received. Hearsay evidence is not automatically excluded. Rather, the fact that it is hearsay generally affects how much reliance the ALJ and the Director of the ODA will place on it in reaching a decision. There are four kinds of evidence: a. Knowledge of the agency or ALJ. The agency or ALJ may take ?official 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 "official notice" or ?judicial notice" of any fact and you will be given an opportunity to contest any facts so noticed. b. Testimony of witnesses. Testimony of witnesses, including you, who have knowledge of the facts may be received in evidence. c. Writings. Written documents including letters, maps, diagrams and other written material may be received in evidence. d. Experiments, demonstrations and similar means used to prove a fact. The results of experiments and demonstrations may be received in evidence. Objections to evidence. Objections to the admissibility of evidence must be made at the time the evidence is offered. Objections are generally made on one of the following grounds: a. The evidence is unreliable; b. The evidence is irrelevant or immaterial and has no tendency to prove or disprove any issue involved in the case; c. The evidence is unduly repetitious and duplicates evidence already received. Continuances. There are normally no continuances granted at the end of the hearing for you to present additional testimony or other evidence. However, if you can show that the record should remain open for additional evidence, the ALJ may grant you additional time to submit such evidence. Record. A record will be made of the entire proceeding to preserve the testimony and other evidence for appeal. This may be done by use of a tape or digital recorder or court reporter. The record is generally not transcribed, unless there is an appeal to the Court of Appeals. However, you may obtain a copy of the tape recording upon payment of the costs of making a copy of the tape. If a court reporter is used, you may obtain a transcript or a copy of the court reporter?s transcript upon payment of a transcription fee or other fee that the parties may agree upon. Proposed Order and Exceptions. The ALJ will issue a proposed order in the form of findings of fact, conclusions of law and recommended agency action. You will be provided with a copy and you will be given an opportunity to make written objections, called ?exceptions,? to the ALJ's recommendations. You will be notified when exceptions to the proposed order must be filed. You will be notified when you may appear and make oral argument to the agency. Final Order. The agency will render the ?nal order in this case. The agency may modify the proposed order issued by the ALJ. If the agency modifies the proposed order in any substantial manner, the agency in its order will identify the modifications and will provide an explanation as to why the agency made the modifications. The agency may modify a proposed finding of "historical" fact only if the proposed ?nding is not supported by a preponderance of the evidence in the record. Appeal. If you wish to appeal the final order, you must file a petition forjudicial review with the Oregon Court of Appeals within 60 days after the final 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