,i'f I, I Department of Agriculture Administrative Services Kate Brown, Governor 635 Capitol St NE Ste 100 PESTICIDES PROGRAM Salem?? 97301-2532 TEL: 503-986-4635 CERTIFIED MAIL June $9 2016 Evashevski, Elliott, Cihak Hediger, PC registered agent for Transag, Inc. 745 NW Van Buren Ave Corvallis, OR 97330 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, ODA PESTICIDES CASE NO. 160041 This is a Notice of Imposition of Civil Penalty and Pr0posed/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 employee Peter Brawn. That proposed action is specific to Mr. Brawn. Your request for a hearing or payment of penalty is separate from and has no bearing on Mr. Brawn?s response to his enforcement action, although hearing processes could be combined if both parties request hearings. QMLW 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. 160041 Transag, Inc. an aerial application company HER-WU The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $407.00 against Transag, Inc. (Transag) as authorized by statutory and regulatory prbvisions 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 60 (corporations), 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; (0) ?Fungicide' which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any fungus; ?Herbicide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any weed; ?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." Transag, Inc. Civil Penalty Page 2 of 9 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(4) states person may not: Perform pesticide application activities in a faulty, careless or negligent manner.? 6. 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. 7. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 8. 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.? 9. 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.? 10. OAR 603-057-0500 et seq. provides formulae for calculating the civil penalties authorized by ORS 634.900. OAR 603-057-0502(7) states ?Civil penalties shall be due and payable ten (10) business days after the order becomes final by operation of law or on appeal. A person may pay a civil penalty before an order becomes final. Payment of a civil penalty before an order becomes final is an admission by the person of all of the allegations in the Notice of Imposition of Civil Penalty.? 11. ORS Chapter 60 regulates corporations transacting business in Oregon. ll. FINDINGS OF FACT ODA Pesticides Case No. 160041 1. This Notice and Order is the result of a pesticide use investigation conducted by the Department in response to a complaint about drift or off-site deposition of pesticides applied to a corn field in Lane County, Oregon, in July of 2015. The person in contact with the Department regarding this matter was Peter Brawn (Mr. Brawn). 2. Transag, Inc. is an Oregon business corporation with a principal place of business at 33621 Hoefer Drive NE, Albany, Linn County, Oregon. Peter Brawn is the president of the business, which provides aerial application services in the Lane County area of Oregon. This agricultural service operation involves the application of pesticides to growing crops. 3. Transag is licensed by ODA as a Commercial Pesticide Operator, license number AG- L0000187CPO. This license was issued in January of 1977. Mr. Brawn is licensed by ODA as a Transag, Inc. Civil Penalty Page 3 of 9 Commercial Pesticide Applicator, license number AG-L1022454CPA. This license was issued in August of 2012. 4. On July 20, 2015 Mr. Brawn, in his capacity as an agent or employee of Transag, used an airplane to apply a pesticide onto a 138-acre corn field located at 30991 Crossroads Lane, Eugene, Lane County, Oregon, centered at approximately 44? 11' 30? latitude, 123? 08? 01? longitude, approximately 4 miles southeast of Junction City. The pesticide Mr. Brawn applied here was: Brigade 2EC Insecticide/Miticide, EPA Reg. No. 279-3313, active ingredient bifenthrin, FMC Corporation Agricultural Products Group, Philadelphia, This product is considered a restricted use pesticide. For this application, Mr. Brawn used a fixed-wing aircraft. This pesticide application may be referred to herein as the July 20 application; the treated field may be referred to as the field or the corn field. 5. The Brigade 2EC label states, under DIRECTIONS FOR USE: not apply this product in a way that will contact workers or other persons, either directly or through And under Spray Drift Requirements: Wind Direction and Speed Only apply this product if the wind direction favors on-target deposition. Do not apply when the wind velocity exceeds 15 mph. Temperature Inversion Do not make aerial or ground applications into temperature inversions. Inversions are characterized by stable air and increasing temperatures with height above the ground. Mist or fog may indicate the presence of an inversion in humid areas. The applicator may detect the presence of an inversion by producing smoke and observing a smoke layer near the ground surface. Droplet Size Use only Medium or coarser spray nozzles (for ground and non-ULV aerial application) according to ASAE (8572) definition for standard nozzles. In conditions of low humidity and high temperatures, applicators should use a coarser droplet size. Additional Requirements for Ground Applications Wind speed must be measured adjacent to the application site on the upwind side, immediately prior to application. For ground boom applications, apply using a nozzle height of no more than 4 feet above the ground or crop canopy. For airblast applications, turn off outward pointing nozzles at row ends and when spraying the outer two rows. To minimize spray loss over the top in orchard applications, spray must be directed into the canopy. Additional Requirements for Aerial Applications The spray boom should be mounted on the aircraft as to minimize drift caused by wingtip or rotor vortices. The minimum practical boom length should be used and must not exceed 75% of the wing span or 80% rotor diameter. Flight speed and nozzle orientation must be considered in determining droplet size. Transag, lnc. Civil Penalty Page 4 of 9 Spray must be released at the lowest height consistent with pest control and flight safety. Do not release spray at a height greater than 10 feet above the crop canopy unless a greater height is required for aircraft safety. When applications are made with a cross-wind, the swath will be displaced downwind. The applicator must compensate for this displacement at the downwind edge of the application area by adjusting the path of the aircraft upwind. 6. Brigade 2EC is a Restricted Use Pesticide, due to toxicity to fish, aquatic organisms, and bees. 7. Gordon Lesina (Mr. Lesina) resides in a home located at 30993 Crossroads Lane, Eugene, Lane County, Oregon, directly to the east of and adjacent to the corn field. This home may be referred to as "the Lesina residence.? On July 20, 2015, Mr. Lesina told ODA that he had been working in his sheep pasture when he felt spray from the July 20 application contact his face. 8. On July 20, 2015 ODA went to the Lesina residence and met with Mr. Lesina. While onsite, ODA collected the following samples, in the order listed and with decreasing distance from the corn field: Sample Description 160041-1 Soil, Lesina sheep pasture. approximately 25 yards from the edge of the corn field 160041-2 Soil, Lesina sheep pasture, approximately 15 yards from the edge of the corn field 160041-3 Soil, Lesina sheep pasture, approximately 5 feet from the edge of the corn field On July 21, 2015 ODA went to the cornfield and collected the following sample: Sample Description 160041-4 Vegetation, corn leaves from treated corn field All of the samples were secured and delivered to ODA Laboratory Services, Portland, Oregon (the ODA lab), with a request for analysis for bifenthrin. 9. On July 20, 2015 ODA contacted Mr. Brawn. During this and subsequent communications, Mr. Brawn described the July 20 application. 10. On January 29, 2016 the ODA lab issued the following results of its analysis of the samples. For all analyses the results are given in parts per million (ppm). For all analyses the Method Reporting Limit (MRL) was 0.010 ppm. Sample Description Detected bifenthrin 160041-1 Soil, Lesina sheep pasture, 25 yards from the edge of the corn field 0.041ppm 160041-2 Soil. Lesina sheep pasture, 15 yards from the edge of the corn field: 0.21 160041-3 Soil, Lesina sheep pasture, 5 feet from the edge of the corn field 0.063 160041-4 Vegetation, corn leaves from treated corn field 9.7 11. The ODA considered possible sources of the detected pesticide. Based on the gradient of detections, and Mr. Lesina's observations, the July 20 application was the only likely source of the detected pesticide. ULTIMATE FINDINGS OF FACT 1. Transag, Inc. is an aerial application service provider in Linn County, Oregon. Its agricultural activities include the application of pesticides onto growing crops. Transag is operated by its president, Peter Brawn. Transag, Inc. Civil Penalty Page 5 of 9 2. On July 20, 2015 Transag, through agent or employee Mr. Brawn, applied an RUP pesticide to a 138?acre cornfield in Lane County, Oregon, southeast of Junction City. 3. The pesticide label prescribed avoiding spray drift at the application site, as well as contact with persons. A person near the treatment site, however, reported feeling spray from the application. 4. Subsequent to the July 20 application, samples were taken from a neighboring property. The active ingredient of the pesticide used, bifenthrin, was then detected on the neighboring property, in all of the samples taken. The gradient of the detections, as well as witness statements, indicated that the July 20 application was the source of the detected pesticide. These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW The Oregon Department of Agriculture determines that Transag, Inc. violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION NO. 1 Transag, Inc. violated ORS which states A person may not: Perform pesticide application activities in a faulty, careless or negligent manner. Specifically, on July 20, 2015 Transag, through agent or employee Peter Brawn, used an airplane to apply a pesticide onto a 138?acre corn field located at 30991 Crossroads Lane, Eugene, Lane County, Oregon, centered at approximately 44? 11' 30? latitude, 123? 08' 01" longitude, approximately 4 miles southeast of Junction City. The pesticide Mr. Brawn applied here was Brigade 2EC Insecticide/Miticide, EPA Reg. 279-3313. Brigade 2EC is a Restricted Use Pesticide, its active ingredient is bifenthrin. The Brigade 2EC label prescribes avoiding contact with persons during application, as well as spray drift from the application site. Transag and Mr. Brawn did not read or comply with the product label closely enough to be sure that application conditions remained consistent with these label provisions. A neighbor to the treatment site reported feeling spray from the July 20 application, and subsequently samples were taken from the neighbor?s property. The active ingredient of the pesticide applied, bifenthrin, was detected in all of the samples taken. Applying this pesticide product without taking care to ensure that spray conditions remained suitable, and where some of the material was deposited onto a neighboring property to the east, was a pesticide application activity performed in a faulty, careless or negligent manner, 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 Transag, Inc. Civil Penalty Page 6 of 9 1. N, the number of related violations within a period of three years prior to and including the date of the current violative act, is 1 OAR 2. B, the base penalty is $370.00; OAR The base penalty was determined as follows: a. The MAGNITUDE is CATEGORY (MAJOR) under OAR b. The GRAVITY is HIGH LEVEL because the pesticide applied was designated as a restricted use pesticide and was used over a wide area of application; 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 5. R, preventability of the violation and the presence of negligence or misconduct is 3 because the actions by Transag, lnc. determined to be violative were reasonably avoidable; OAR 603-057- 0530(1)(e)(C). At the time of the pesticide application activity, Transag was a licensed Commercial Pesticide Operator, and Mr. Brawn was a licensed Commercial Pesticide Applicator. Based on this license history and experience, Transag and Mr. Brawn 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 Transag and its representatives were cooperative and readily provided information to the Department regarding the July 20 app?ca?on. Any final order regarding this Notice of Imposition of Civil Penalty will become a part of Transag, nc.?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 Transag 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. Transag, Inc. Civil Penalty Page 7 of 9 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 othenivise 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 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. 330MD day of fame, .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: Transag, Inc. Civil Penalty Page 8 of 9 Oregon Department of Agriculture, Pesticides Program, ATTN: Andrea Sonnen, 635 Capitol Street NE, Salem, Oregon 97301-2532. NOTICE TO 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 http?legalassistance.lawafmil. Transag, Inc. Civil Penalty Page 9 of 9 Transag, Inc. Oregon Department of Agriculture, Pesticides Case No. 160041 Notice of Contested Case Rights and Procedures Pursuant to ORS you are entitled to be informed of the following: 1. Notice of Contested Case Rights and Procedures 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 Imposition of Civil Penalty and Proposed/Final Order (NICP), and dated June 7.50 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 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 ?nancial 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 ODA's proposed action is appropriate. The order of presentation of evidence is normally as follows: a. Testimony of witnesses and other evidence of the ODA in support of its proposed action. b. Testimony of your witnesses and your other evidence. c. Rebuttal evidence by the ODA and by you. Burden of presenting evidence. The burden of presenting evidence to support an allegation or position rests upon the proponent of the allegation or position. If you have the burden of proof on an issue, or if you intend to present evidence on an issue in which the agency has the burden of proof, you should approach the hearing prepared to present the testimony of witnesses, including yourself, and other evidence that will support your position. All witnesses are subject to cross- examination and also to questioning by ALJ. Page 1 10. 11. 12. 13. 14. 15. 16. 17. Notice of Contested Case Rights and Procedures 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 ALJ's knowledge in a specialized field. This includes notice of general, technical or scientific facts. The agency or ALJ may also take "judicial notice" of a fact that is not subject to reasonable dispute in that it is generally known or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. You will be informed if the agency or ALJ takes "of?cial notice" or ?judicial notice? of any fact and you will be given an Opportunity to contest any facts so noticed. b. Testimony of witnesses. Testimony of witnesses. including you, who have knowledge of the facts may be received in evidence. c. Writings. Written documents including letters, maps, diagrams and other written material may be received in evidence. d. Experiments, demonstrations and similar means used to prove a fact. The results of experiments and demonstrations may be received in evidence. Objections to evidence. Objections to the admissibility of evidence must be made at the time the evidence is offered. Objections are generally made on one of the following grounds: a. The evidence is unreliable; b. The evidence is irrelevant or immaterial and has no tendency to prove or disprove any issue involved in the case; c. The evidence is unduly repetitious and duplicates evidence already received. Continuances. There are normally no continuances granted at the end of the hearing for you to present additional testimony or other evidence. However, if you can show that the record should remain open for additional evidence, the ALJ may grant you additional time to submit such evidence. Record. A record will be made of the entire proceeding to preserve the testimony and other evidence for appeal. This may be done by use of a tape or digital recorder or court reporter. The record is generally not transcribed, unless there is an appeal to the Court of Appeals. However, you may obtain a copy of the tape recording upon payment of the costs of making a copy of the tape. If a court reporter is used, you may obtain a transcript or a copy of the court reporter's transcript upon payment of a transcription fee or other fee that the parties may agree upon. Proposed Order and Exceptions. The ALJ will issue a proposed order in the form of 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 recommendations. You will be notified when exceptions to the proposed order must be filed. You will be noti?ed when you may appear and make oral argument to the agency. Final Order. The agency will render the final order in this case. The agency may modify the proposed order issued by the ALJ. If the agency modi?es the proposed order in any substantial manner, the agency in its order will identify the modifications and will provide an explanation as to why the agency made the modi?cations. The agency may modify a proposed ?nding of "historical" fact only if the proposed finding is not supported by a preponderance of the evidence in the record. Appeal. If you wish to appeal the final order, you must ?le a petition for judicial 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 Page 2