ore 01] Department of Agriculture 635 Capitol St NE Kale Brown, Governor Salem, OR 973012532 PESTICIDES PROGRAM TEL: 503?986-4635 CERTIFIED MAIL April L, 2016 Oregon Secretary of State Corporation Division, appointed agent to accept service on: Wilbur-Ellis Company 255 Capitol Street NE, Suite 151 Salem, Oregon 97310-1327 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, ODA PESTICIDES CASE NO. 150289 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. ?zz. - DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Encl: Notice of Contested Case Rights and Procedures cc: Wilbur?Ellis Company, Walla Walla, Washington Wilbur-Ellis Company, San Francisco, California STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture NOTICE OF OF PENALTY and ORDER, for Violation of the State Pesticide Control Act, ODA Pesticides Case No. 150289 in the Matter of: Wilbur-Ellis Company, an Agricuitural Chemical and Services Provider The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $814.00, against Wilbur-Ellis Company (Wilbur-Ellis) 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 60 (corporations), 183 (administrative law), 561 (agriculture), 634 (pesticides); Oregon Administrative Rules (OAR) Chapter 137, division 3 (contested case procedures); and OAR Chapter 603, division 57 (pesticide controi). 2. Oregon's pesticide control law is known as the State Pesticide Controi 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; ?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 othenrvise alter the behavior of ornamental or crop plants or the produce thereof, but does not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants or soii 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 declares to be a pest, which may infest or be detrimental to vegetation, humans, animals, or be present in any environment thereof.? Wilbur-Ellis Company Civil Penalty Page 2 of 7 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 634.006(11) states ?Pesticide dealer' means a person who sells, offers for sale, handtes, displays or distributes any pesticide classified by the department as a restricted-use or highly toxic pesticide." 6. 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 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 by aircraft.? ORS 634.006(13) states "Pesticide operator? means an individuai who owns or operates a business engaged in the application of pesticides upon the land or property of another." 7. 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. 8. 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.? The labels of Restricted Use Pesticides (RUP) state that they may not be sold to any person not appropriately certified or licensed as a pesticide applicator. 9. The Department is responsibie 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 entitted 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 iaw. Such rUles and regulations shail be compiled and printed in pamphlet form for distribution. The violation of any rule or regulation made by the department pursuant to this section shati 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 civii penalties for viotations 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 603057?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 payabie ten (10) business days after the order becomes final by operation of law or on appeal. A person may pay a civil penatty before Wilbur-Ellis Company Civil Penaity Page 3 of 7 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." 14. ORS Chapter 60 regulates corporations transacting business in Oregon. ll. FINDINGS OF FACT ODA Pesticides Case No. 150289 1. This Notice/Order is the result of a routine pesticide Dealer Record inspection initiated by the Department in February of 2015. The purpose of the Dealer Record inepection was to inspect licensing of customers who purchased Restricted Use Pesticides (RUP) from Wilbur-Ellis' Walla Walls branch, as well as records of sales of RUPs made in 2012 through 2014. The representatives of Wilbur-Ellis who were in contact with ODA regarding these inspections were records manager Joanie Lucarelli and David White. 2. Wilbur?Ellis Company is a California business corporation with a principal place of business at 345 California Street, 27th Floor, San Francisco, California. Wilbur-Ellis, through various branches, is an international supplier of agricultural services and chemicals, including pesticides. One Wilbur-Ellis branch is located at 599 Street, Walla Walla, Washington. This branch may be referred to as the Walla Walla branch. In January of 2016 Wilbur-Ellis withdrew its authority to transact business in Oregon, and Wiibur~ Ellis Company LLC registered with the Oregon Secretary of State, with the same principal place of business and registered agent as had been used by WilburuEllis Company, the corporation. 3. The Walla Walla branch is licensed by ODA as a Pesticide Dealer, license number AG- L1014603PD. This license was issued in September of 2010. 4. During 2013 the Walia Walla branch?s RUP sales included the following: Purchaser name, license No. Purchase date Product Robert T. Teeter, AG-L0002911CPA May 13, 2013 Warrior ll insecticide, EPA Reg. No. 100-1295, Syngenta Crop Protection, LLC, Greensboro, North Carolina This sale may be referred to as the Warrior ll sale. Warrior II is a Restricted Use Pesticide ?due to toxicity to fish and aquatic organisms." 5. At the time of the Warrior ll sale the Oregon Commercial Pesticide Applicator (CPA) license of Mr. Teeter, AG-L00029110PA, included only the category and subcategory Agriculture - Herbicide. This license was issued by ODA in April of 1982. 6. On February 27, 2015 ODA inspected the Walia Walla branch?s RUP sales records, which documented the Warrior ll sale. Ill. ULTIMATE FINDINGS OF FACT 1. The Walla Walla branch of Wilbur-Ellis Company is an Oregon-licensed Pesticide Dealer that transects business with agricultural growers and applicators in northeast Oregon. 2. in May of 2013 the Walla Walla branch sold an RUP to a purchaser who did not have the appropriate applicator license. The sale was of an agricuitural insecticide to a purchaser who had a CPA license with only the Herbicide subcategory. These ultimate findings of fact are based on the findings of fact. Wilbur?Ellis Company Civil Penalty Page 4 of 7 IV. CONCLUSION OF LAW The Oregon Department of Agriculture determines that Wilbur-Ellis Company violated Oregon Revised Statutes (ORS) Chapter 634 as follows: NO. 1 Wilbur-Eltis Company 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. On or about May 13, 2013 Wilbur-Elite, through its branch in Walla Waiia, Washington, made the following sale of a Restricted Use Pesticide: Purchaser name, license No. Product Robert T. Teeter, AG-L0002911CPA Warrior ll Insecticide, EPA Reg. No. 100?1295 Warrior Insecticide is a Restricted Use Pesticide. At the time of the Warrior Ii sale the Oregon Commercial Pesticide Appticator (CPA) license of Mr. Teeter included only the Agriculture?Herbicide category and subcategory. Selling this insecticide RUP to a purchaser whose pesticide applicator license did not permit the use of insecticides was distributing the product inconsistent with its iabeling, in violation of ORS This conclusion is based on the ?ndings of fact and ultimate findings of fact. V. PENALTY The penalty for Violation No, 1 is $814.00. The penalty is determined using the criteria in OAR 603-057- 0525 to 803057-0530. NB NB) $740.00 $814.00 $814.00 violation $814.00 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 2. A previous violation by a different Wilbur-Ellis branch resuited in a Notice of Imposition of Civil Penalty, with the Final Order being issued September 9, 2011 (case #110400); OAR 603? 2. B, the base penalty is $370.00; OAR The base penalty was determined as follows: a. The is CATEGORY (MAJOR) under OAR b. The GRAVITY is HIGH LEVEL because the pesticide applied was designated as a restricted use pesticide; OAR 3. P, the past occurrence of unrelated violations is 0 (zero) because there are no past unrelated violations within the previous three years; OAR 4. H, the history of taking steps to correct a vioiation is 0 (zero) because there is insufficient information on which to base a finding; OAR Wilbur-Ellis Company Civil Penalty Page 5 of 7 5. R, preventability of the violation and the presence of negligence or misconduct is 3 because the action by the Walla Walla branch determined to be violative was reasonably avoidable; OAR 803-057- 0530(1)(e)(C). Wilbur-Ellis has for many years included branches licensed as Pesticide Dealers in Oregon. These branches have been through several record inspections with ODA. The licensing requirements for purchasers of RUPs have been available and the Walla Walla branch could have checked them to find answers to any questions. Based on this history the Walla Walla branch should have been aware that the purchaser in the Warrior ll sale was not appropriately licensed for this product. 8] C, cooperativeness is (negative OAR Wilbur-Ellis and its representatives were cooperative and readily provided information to the Department. Vi. RIGHT TO A HEARING You are entitled to a contested case hearing as provided by statues and rules including, but not limited to: ORS Chapter 183, including 183.413 to 183.470, and ORS 183.745; OAR Chapter 137, division 3, including OAR 137-003-0501 to 137?003~0700; ORS 834.905; and OAR chapter 803, division 57. The request for a hearing must be made in writing to the Department within ten business days of the date that you receive the OAR The request should be made to the attention of: Michael Babbitt Pesticides Program, Oregon Department of Agriculture 835 Capitol Street NE Salem, Oregon 97301-2532 If you make a timely request for a hearing you will be notified of the date, time and place of such hearing. You will also be given information on the procedures, right of representation and other rights of parties relating to the conduct of the hearing before commencement of the hearing. An administrative law judge from the Office of Administrative Hearings will preside at any hearing. The Director of the Department has authority to issue the final order. 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 wili 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 rescheduied, 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. Wilbur-Ellis Company Civil Penalty Page 6 of 7 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 835 Capitol Street NE Salem, Oregon 97301?2532 Any final order regarding this Notice of Imposition of Civil Penalty will become a part of Wilber-Ellis' 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 Wilbur-Ellis Company to additional enforcement actions including, but not limited to, civil penalties, product seizure, or license revocation. When any ?nal 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 for judicial review within this time period you will lose your right to appeal. HI day of Apri/ ,2018 it )0 mil/U [Crab/? Ka?rTcoeA DIRECTOR OREGON DEPT. OF AGRICULTUR cc: Wilbur-Ellis Company, Walla Walla, Washington Wilbur?Ellis Company, San Francisco, California 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: Michael Babbitt, 835 Capitol Street NE, Salem, Oregon 973012532. 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?8280, the Oregon Military Department at 800-452-7500, or the nearest United States Armed Forces Legal Assistance Office through Wilbur-Ellis Company Civil Penalty Page 7 of 7 WILBUR-ELLIS COMPANY Oregon Department of Agriculture, Pesticides Case No. 150289 Notice of Contested Case Rights and Procedures Pursuant to ORS you are entitled to be informed of the following: 1. Time and place of hearing. The time and place of hearing is or will be set forth in the Notice of Hearing issued by the Administrative Law Judge (ALJ) after the prehearing conference. issues to be considered at hearing. The issues to be considered at hearing are those set forth in the notice issued by the Oregon Department of Agriculture (ODA), entitled Notice of Imposition of Civil Penalty and Proposed/Final Order and dated Apart} ll, 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 603-057-0505 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 rati?ed by an attorney within 28 days of the agency?s receipt of the request, OAR 137- 003-0550. If you are not represented at the hearing and during the hearing you determine that representation by an attorney is necessary, you may request a recess to allow you an opportunity to secure the services of an attorney. The hearing ALJ will decide whether to grant such a request. The ODA will be represented by an attorney. Legal aid organizations may be able to assist a party with limited ?nancial resources. Administrative Law Judge. The person presiding at the hearing is known as the administrative law judge (ALJ). The ALJ will rule on all matters that arise at the hearing, subject to agency consideration of matters transmitted for agency decision under OAR 137?003-0635 or matters subject to agency review under OAR 137-003-0640 or OAR 137?003-0570. The ALJ will be assigned by the Chief ALJ from the Of?ce of Administrative Hearings (OAH). The OAH consists of employees of, and independent contractors with, the Chief ALJ. The ALJ does not have the authority to make the ?nal decision in the case. The ?nal determination will be made by the Director of the ODA. Discovery. If the agency or the ALJ authorizes discovery, the agency or the ALJ shall control the methods, timing and extent of discovery. Discovery is permitted in this proceeding. Discovery is permitted as provided in OAR 137-003-0570, OAR 137-003-0572, and OAR 137-003?0573. Witnesses. A witness must testify under oath or af?rmation to tell the truth. The ODA or the ALJ will issue subpoenas for witnesses on your behalf upon a showing that their testimony is relevant to the case and is reasonably needed by you to establish your position. If you are represented by an attorney, your attorney may issue subpoenas for attendance of witnesses at hearing. Payment of witness fees and mileage to the person subpoenaed is your responsibility. Order of evidence. A hearing is similar to a court proceeding but is less formal. Its general purpose is to determine the facts and whether the 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 ailegation or position rests upon the proponent of the allegation or position. If you have the burden of proof on an issue, or if you intend to present evidence on an issue in which the agency has the burden of proof, you should approach the hearing prepared to present the testimony of witnesses, including yourself, and other evidence that will support your position. All witnesses are subject to cross? examination and also to questioning by ALJ. Notice of Contested Case Rights and Procedures Page 1 10. 11. 12. 13. 14. 15. 16. 17. Admissible evidence. Relevant evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible and will be received. Hearsay evidence is not automatically excluded. Rather, the fact that it is hearsay generally affects how much reliance the ALJ and the Director of the ODA will place on it in reaching a decision. There are four kinds of evidence: a. Knowledge of the agency or ALJ. The agency or ALJ may take ?of?cial notice? of facts based on the agency's or knowledge in a specialized ?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. 0. 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. it a court reporter is used, you may obtain a transcript or a copy of the court reporter's transcript upon payment of a transcription fee or other fee that the parties may agree upon. Proposed Order and Exceptions. The ALJ will issue a proposed order in the form of ?ndings of fact, conclusions of law and recommended agency action. You will be provided with a copy and you will be given an opportunity to make written objections, called ?exceptions,? to the ALJ's recommendations. You will be noti?ed when exceptions to the proposed order must be ?led. You will be 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 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 ?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 forjudicial review with the Oregon Court of Appeals within 60 days after the ?nal order is served upon you. See Oregon Revised Statutes 183.482. Notice to Active Duty Servicemembers. Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800-452-7500. or the nearest United States Armed Forces Legal Assistance Of?ce through Notice of Contested Case Rights and Procedures Page 2