Ore 0' I Department of Agriculture 635 Capitol St NE Salem, OR 97301-2532 Kate Brown, Governor PESTICIDES PROGRAM TEL: 503-986?4635 CERTIFIED MAIL Ma. 2015 David McCarty, registered agent for: Columbia Basin Helicopter, Inc. 14178 Ben Dier Lane Baker City. Oregon 97814 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and PROPOSEDIFINAL ORDER, ODA CASE NO. 140122 This is a Notice of Imposition of Civil Penalty and Proposed/Final Order that is based on a pesticide investigation performed 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 ef seq, Oregon Administrative Rules (OAR) chapter 137, division 3, and OAR 603-057-0500 91 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 has also issued a separate proposed enforcement action to you as an individual. That proposed action is specific to you as an individual. Columbia Basin?s request for a hearing or response to this Notice is separate from and has no bearing on your response as an individual to the Notice sent to you personally, although hearing processes could be combined if both parties request hearings. QM. DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Encl: Notice of Contested Case Rights and Procedures STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, for Violation of the State Pesticide Control Act, ODA Pesticides Case No. 140122 in the Matter of: Columbia Basin Helicopter, Inc., a Commercial Pesticide Operator The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penatty in the amount of $2,000.00 against Columbia Basin Helicopter, inc, 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 ?ndings and conclusions on which this determination is based, and the criteria used to calculate the penalty, are set out below. I. APPLICABLE LAW 1. The applicable law includes the following: ORS Chapters 60, (corporations), 62 (c00peratives), 183 (administrative law), 561 (agriculture), 634 (pesticides); Oregon Administrative Rules (OAR) Chapter 137, division 3; and OAR Chapter 603, division 57. 2. Oregon?s pesticide control law is known as the State Pesticide Control Act and is codified in Oregon Revised Statutes (ORS) Chapter 634. 3. ORS 634.006(8) states ?Pesticide' includes: ?Defoliant? ?Desiccant' ?Fungicide' ?Herbicide? ?lnsecticide? 'Nematocide' (9) ?Plant regulator? 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 iife 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.? 4. 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." 5. 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 application of pesticides or operates, uses, drives or physically directs propuision of equipment, apparatus or machinery, either on the ground or by aircraft in such activity." 6. ORS 634.372(4) states person may not Perform pesticide application activities in a faulty, careless or negligent manner.? 7. The Department has responsibility and authority for the Pesticides program and may make any rule necessary for enforcement of program requirements; ORS 561.020; ORS 561.190; ORS chapter 634. 8. Oregon Administrative Ruies (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 9. ORS 634.900 et seq. authorizes ODA to impose civil penalties for violations of provisions of ORS Chapter634. 10. ORS Chapter 60 regulates corporations transacting business in Oregon. Columbia Basin Helicopter, Inc. Civil Penalty Page 2 of 9 ll. FINDINGS OF FACT ODA Pesticides Case No. 140122 1. This Notice and Order is the result of an Agricultural Pesticide Use Follow?up investigation initiated by the Department during September of 2013, in response to a complaint alleging drift of a pesticide application off of the treatment site. The representative of Columbia Basin who dealt with ODA during this investigation was owner David McCarty. 2. Columbia Basin Helicopter, Inc. (Columbia Basin) is a domestic business corporation with a principal place of business at 60035 Blue Sky Drive, La Grande, Oregon. Columbia Basin provides custom or commercial aerial pesticide application services to growers in Oregon. 3. During 2013, the Department licensed Columbia Basin as a Commercial Pesticide Operator (CPO), under the name of Columbia Basin Helicopter. Columbia Basin has maintained this license, number AG- L0136204CPO since May of 1996. 4. During 2013, David M. McCarty was a pesticide applicator with Columbia Basin. The Department has iicensed Mr. McCarty since April of 2000 as a Commercial Pesticide Applicator license number L01551450PA. 5. On June 23, 2013 Mr. McCarty, in his capacity as senior agent or employee of Columbia Basin, used a helicopter to intentionally apply a pesticide to 705 acres of Rufenacht Land and Cattle Co's rangeland in the vicinity of Township 118, Range 40E, Section 22, at the head of Beaver Creek, Baker County, Oregon (Beaver Creek Ranch). The pesticides applied by Mr. McCarty were: Alligare MSM 60, EPA Reg. No. 81927-7, contains metsulfuron methyl Alligare, Gig Harbor, Washington Triclopyr 4E, EPA Reg. No. 42750-126, contains triclopyr Aibaugh Inc, Cordova, Tennessee This pesticide application may be referred to herein as the Beaver Creek Ranch application. 6. The Aitigare MSM 60 pesticide product label states in part: "Do not apply directly to water, to areas where surface water is present, or to intertidal areas below the mean high water mark." NOT APPLY to natural or man?made bodies of water such as takes, reservoirs, ponds, streams and canals." 7. The Triclopyr 4E product label states in part: "Do not apply directly to water, to areas where surface water is present, or to intertidal areas below the mean high water mark." "Do not apply to open water such as lakes, reservoirs, rivers, streams, creeks, salt water bays, or estuaries." 8. In addition, both product labels have language regarding prevention of drift: The Alligare MSM 60 product label states in part: "This herbicide is injurious to plants at extremely low concentrations. Nontarget plants may be adversely affected from drift and run?oft.? "Prevent drift of spray to desirable plants.? SPRAY DRIFT MANAGEMENT ?The interaction of many equipment and weather-related factors determines the potential for spray drift. The applicator Columbia Basin Helicopter, Inc. Civil Penalty Page 3 of9 is responsible for considering all these factors when making application decisions.? AVOIDING SPRAY DRIFT IS THE RESPONSIBILITY OF THE APPLICATOR IMPORTANCE OF DROPLET SIZE The most effective way to reduce drift potential is to apply large droplets (>150-200 microns). The best drift management strategy is to apply the largest droplets that provide suf?cient coverage and control. The presence of sensitive Species nearby, the environmental conditions, and pest pressure may affect how an applicator balances drift control and coverage. APPLYING LARGER DROPLETS REDUCES DRIFT POTENTIAL, BUT WILL NOT PREVENT DRIFT lF APPLICATIONS ARE MADE IMPROPERLY OR UNDER UNFAVORABLE ENVIRONMENTAL See Wind, Temperature and Humidity, and Temperature Inversions section of this label. Controlling Droplet Size - General Techniques Volume - Use high flow rate nozzles to apply the highest practical spray volume. Nozzles with higher rated flows produce larger droplets. Pressure - Use the lower spray pressures recommended for the nozzle. Higher pressure reduces droplet size and does not improve canopy penetration. WHEN HIGHER FLOW RATES ARE NEEDED, USE A HIGHER-CAP ACITY NOZZLE OF INCREASING PRESSURE. 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. Controlling Droplet Size - Aircraft Number of Nozzles - Use the minimum number of nozzles with the highest flow rate that provides uniform coverage. Nozzle Orientation - Orienting nozzles so that the spray is emitted backwards, parallel to the airstream will produce larger droplets than other orientations. Nozzle Type - Solid stream nozzles (such as disc and core with swirl plate removed) oriented straight back produce larger droplets than other nozzle types. Boom Length - The boom length should not exceed of the wing or rotor length - longer booms increase drift potential. Application Height - Application more than 10 ft above the canopy increases the potential for spray drift. WIND Drift potential increases at wind speeds of less than 3 (due to inversion potential) or more than 10 mph. However, many factors, including droplet size and equipment type determine drift potential at any given wind speed. AVOID GUSTY OR CONDITIONS. Note: Local terrain can in?uence wind patterns. Every applicator should be familiar with local wind patterns and how they affect spray drift. TEMPERATURE AND HUMIDITY When making application in hot and hot and dry conditions, set up equipment to produce larger droplets to reduce effects of evaporation. TEMPERATURE Drift potential is high during a temperature inversion. Temperature inversions restrict vertical air mixing, which causes small suspended droplets to remain close to the ground and move laterally in a concentrated cloud. Temperature Columbia Basin Helicopter, Inc. Civil Penalty Page 4 of 9 inversions are characterized by increasing temperature with attitude 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 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. The Triclopyr 4E label states in part: AVOID INURIOUS SPRAY DRIFT ?Applications should be made only when there is little or no hazard from spray drift. Very small quantities of spray, which may not be visible may seriously injure susceptible plants. Do not spray when wind is blowing toward susceptible crops or ornamentai plants near enough to be injured. It is suggested that a continuous smoke column at or near the psray site or a smoke generator on the spray equipment be used to detect air movement, iapse conditions, or temperature inversions (stable air). If the smoke layers or indicates a potential of hazardous spray drift, do not spray." 9. On September 18, 2013 ODA received a letter from Logan McCrae, Stewardship Forester for the Oregon Department of Forestry (ODF) in Baker City, Oregon. The letter stated in part: On the 16th of August Jana Peterson (ODF NRS1 Baker City) and I looked into the Beaver Creek drainage in Baker County and it appeared to us that there were a large number of dead or dying trees in the upper end of the drainage. At that time we did not take any further action due to extensive fire activity occurring. Suspicious of bark beetle damage, and in response to another report that the damage appeared much more extensive than in August, we took a second drive through the area on the 10th of September to determine the cause and extent of the damage. We found that almost all of the brush species that were growing in the unit were dead aiong with most of the mixed conifer trees in the area being damaged or dead, almost all of which were not of merchantable size. The affected area is located inside of the Dooley Mountain Fire burn perimeter where a stand replacing wiidfire occurred in 1989. The mixed conifer trees that are growing inside the affected area consist of piantations and naturally regenerated trees with an approximate average age of 20 years old. Using a map we approximated the size of the affected area at 700 acres. A subsequent call to the ranch manager Lance Cosby revealed that an herbicide apptication to control a woody brush species (Ceanothus) was carried out in mid June 2013 to improve Rufenacht?s range ground and increase forage production for livestock. Doug Boone of Boone Custom Spraying, whom is a licensed pesticide applicator, was hired to plan and carry out the operation for the ranch. Columbia Basin Helicopters Inc was used to aerially appiy the herbicide. Given the intentions of the landowner it has been concluded thus far, by NEO District and Salem Oregon Department of Forestry staff, that the activity was based on agricultural premises and/or an agricultural practice and that the Oregon Forest Practices Act does not apply. During our visit on September 10th, we observed that the affected area may not be fully contained within the Rufenacht ownership. Further inspection would be necessary to determine the actual spray area boundary and whether adjacent ownerships may have been affected. in addition, Beaver Creek is a Small Fish Bearing stream and approximately 1 mile of the stream is iocated within the spray area boundary. 10. On October 1, 2013, the Department met with Mr. McCarty. Mr. McCarty expressed he had concerns regarding the use of those products over the trees. Mr. McCarty stated he did fly over Beaver Creek and that he was not aware the creek was there when he made the Beaver Creek Ranch application. 11. On October 1, 2013, the ODA went to the Beaver Creek Ranch application site, observed various some ofwhich appeared herbicidal, and took the following samples: Sample number Location 140122?1, vegetation Approx. 1379 ft from property boundary gate between border of Ruffenacht land and USFS land 140122?2, vegetation Approx. 612 ft south from property boundary gate between 8 border of Ruffenacht land and USPS land 140122-3, vegetation Approx. 300 ft south from property boundary gate between border of Ruffenacht land and USFS land Columbia Basin Helicopter, Inc. Civil Penalty Page 5 of 9 140122-4, vegetation 140122?5, vegetation Approx. 2501 ft NE from property boundary gate between 8 border of Ruffenacht land and USPS land. Within application area. Approx. 4300 ft NW from property boundary gate between 8 border of Ruffenacht land and USFS land. Within application area along Beaver Creek. The samples were secured and frozen, and then sent to the ODA Laboratory Services in Portland, Oregon (the ODA lab), with a request for analysis for triclopyr and sulfmeturon methyl, with metsulfuron methyl requested later. 12. On January 2, 2014 the ODA lab issued the foliowing results of its analysis of the samples. The results are given as updated on February 27, 2014. All results are given in parts per million (ppm). For all analyses, the Minimum Detection Level (MDL) is 0.010 ppm. All samples were below the detection limit for suitmeturon methyl. Sample number Analysis Requested Results (ppm) 140122?1 vegetation Triclopyr 0.056 Metsulfuron methy <0.010 140122?2, vegetation Triclopyr 2.8 Metsutfuron methy 0.11 140122?3, vegetation Triclopyr 3.5 Metsulfuron methy 0.13 140122-4, vegetation Triclopyr 24 Metsuifuron methy 3.5 - 140122?5, vegetation Triclopyr 16 Metsulfuron methy 3.4 ULTIMATE FINDINGS OF FACT 1. Columbia Basin and Mr. McCarty have for several years been licensed in Oregon as, respectively, a Commercial Pesticide Operator and a Commercial Pesticide Applicator. - 2. During June of 2013 Mr. McCarty, as an agent of Columbia Basin, used a helicopter to intentionally spray 705 acres of Rufenacht Land and Cattle Co.?s rangeland, primarily in section 22 in Township 118, Range 40E of the Willamette Meridian, Baker County, Oregon (Beaver Creek Ranch). The pesticide products were the herbicides Alligare MSM 60 (contains metsulfuron methyl) and Triclopyr 4E (contains triclopyr). Both labels include prohibitions against applying directly to water and allowing drift to occur. 3. Subsequent to the Beaker Creek Ranch application metsulfuron methyl and triclopyr were detected off of the treatment site and in the vegetation directiy over Beaver Creek. The Department considered all possible metsulfuron methyl and triclopyr sources in the area and determined that the detected metsulfuron methyl and triclopyr was from the Beaver Creek Ranch application to rangeland. These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW The Oregon Department of Agriculture determines that Columbia Basin Helicopter, inc. violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION NO. 1 Columbia Basin Helicopter, Inc. violated ORS which states A person may not: Perform pesticide application activities in a faulty, careless or negligent manner. On June 23, 2013, Columbia Basin, through its Columbia Basin Helicopter, inc. Civil Penalty Page 6 of 9 senior agent or employee David M. McCarty, used a helicopter to intentionally apply a pesticide to 705 acres of Rufenacht Land and Cattle Co's rangeland, primarily in section 22 in Township 118, Range 40E of the Willamette Meridian. Baker County, Oregon. The treatment site (Beaver Creek Ranch) was at the head of Beaver Creek. The pesticide products were the herbicides Alligare MSM 60 (contains metsulfuron methyl) and Triclopyr 4E (contains triclopyr). Both labels include prohibitions against applying directly to water and allowing drift to occur. The Alligare MSM 60 pesticide product label states in part: ?Do not apply directly to water, to areas where surface water is present, or to intertidal areas below the mean high water mark." NOT APPLY to natural or man?made bodies of water such as lakes, reservoirs, ponds, streams and canals." The Atligare MSM 60 product label also states in part: "This herbicide is injurious to plants at extremely low concentrations. Nontarget plants may be adversely affected from drift and runoff." ?Prevent drift of spray to desirable plants.? SPRAY DRIFT MANAGEMENT "The interaction of many equipment and weather?related factors determines the potential for spray drift. The applicator is responsible for considering all these factors when making application decisions." AVOIDING SPRAY DRIFT is THE RESPONSIBILITY OF THE APPLICATOR The Triclopyr 4E product label states in part: "Do not apply directly to water, to areas where surface water is present, or to intertidal areas below the mean high water mark." "Do not apply to open water such as lakes, reservoirs, rivers, streams, creeks, salt water bays, or estuaries." The Triclopyr 4E label also states in part: AVOID SPRAY DRIFT "Applications should be made only when there is little or no hazard from spray drift. Very small quantities of spray, which may not be visible may seriously injure susceptible plants. Do not spray when wind is blowing toward susceptible crops or ornamental plants near enough to be injured. Mr. McCarty stated he did fly over Beaver Creek and that he was not aware the creek was there when he made the Beaver Creek Ranch application. Subsequent to the Beaker Creek Ranch application metsulfuron methyl and triclopyr were detected off of the treatment site, to the south, and in the vegetation directly over Beaver Creek. The Department considered all possible metsulfuron methyl and triclopyr sources in the area and determined that the metsulfuron methyl and triclopyr detected was from the Beaver Creek Ranch application to rangeland. Applying this pesticide without complying with the label requirements regarding application over or near water was performing a pesticide application in a faulty, careless or negligent manner, in violation of ORS This violation is based on the findings of fact and ultimate findings of fact. V. PENALTY The penalty for Violation No. 1 is $2,000.00. The penalty is determined using the criteria in OAR 603-057?0525 to 603~ 057-0530. NB NB) $1,110.00 ?$111.00) $2,220.00 $2,220.00 1 violation $2,220.00 Reduced to $2,000 based on ORS Columbia Basin Helicopter, Inc. Civil Penalty Page 7 of 9 1. N, the number of times the party was determined to have committed the violative act within a period of three years prior to and inciuding the date of the current vioiative act. is 3 (ODA Case No. 110047 final order issued July 10, 2012 and ODA Case No. 110212 final order issued July 10, 2012); 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 appiied was used in a wide area of application, OAR 3. P, the past occurrence of unrelated violative acts is 3 because of the past occurrence of one unrelated incident of Category (major) violation. This inciuded: Violation of ORS 834.372(2) ODA Case No. 130390, pesticide appiication took piace on March 27, 2013; OAR 4. H, the history of taking steps to correct a violation is 2 because no action was taken to correct prior violations; OAR 5. R, of the violation and the presence of negligence or misconduct is 7 because the actions determined to be violative were flagrant; OAR A more careful handiing, and thorough reading, of the pesticide product label would have prevented these vioiations. 8. C, cooperativeness is OAR Columbia Basin and its representatives were cooperative and readin provided information to ODA. Vi. NOTICE OF RIGHT TO REQUEST HEARING You are entitied to a contested case hearing as provided by statutes and rules including but not limited to: ORS Chapter 183, including 183.413 to 183.470; 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 so that it is received by the Department within 10 business days from the date that the Department mailed this Notice; OAR The request should be made to the attention of: Sunny Jones Pesticides Program Oregon Department of Agricuiture 835 Capitol Street NE Salem, Oregon 97301-2532 lfyou make a timely request for a hearing you will be noti?ed of the date, time and place of such hearing. You wili 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 ?nal order. Piease note that if the recipient of the enforcement notice is a corporation, partnership, Limited Liability Company, unincorporated association, trust, or other entity that is not a natural person, it must be represented in the contested case process by an attorney. Furthermore, the attorney representing such a corporation or other entity must ratify the request for hearing, in writing, within 28 days of the date that the request is received by the agency; OAR 137-003- 0550. This provision does not, however, require any entity to be represented by an attorney at any informal conference. You may choose to be represented by counsei; the state will not provide legal counsel in administrative cases such as this, but private iegal aid organizations may be able to assist a person with limited financial resources. Columbia Basin Heiicopter, inc. Civil Penalty Page 8 of 9 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 ?nal 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 ?nal, you will have the right to appeal the order to the Oregon Court of Appeals pursuant to ORS 183.482. T0 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 s-lv DATED this 6 dayof Howe/1n ,2015 DIRECTOR [10/ OREGON DEPT. OF A NOTE: Copies of the Department's investigation report will be provided upon request. The request must be made in writing. There may be a monetary charge for some reports. The written request should be made to: Oregon Department of Agriculture. Pesticides Program, ATTN: SUNNY JONES. 635 Capitol Street NE, Salem, Oregon 97301-2532. NOTICE TO ACTIVE DUTY SERVICEMEMBERS: Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800-452-7500, or the nearest United States Armed Forces Legal Assistance Office through Columbia Basin Helicopter, lnc. Civil Penalty Page 9 of 9 Columbia Basin Helicopter, Inc. Oregon Department of Agriculture, Pesticides Case No. 140122 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 Violation and Imposition of Civil Penalty and Proposed/Final Order and dated March 31, 2015, 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 0R8 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 lawjudge (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. 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. 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 ALJ's knowledge in a specialized ?eld. This includes notice of general. technical or scienti?c facts. The agency or ALJ may also take ?judicial notice? of a fact that is not subject to reasonable diSpute in that it is generally known or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. You will be informed if the agency or ALJ takes ?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. 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 recommendations. You will be notified 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 finding is not supported by a preponderance of the evidence in the record. Appeal. If you wish to appeal the ?nal order, you must ?le a petition for judicial review with the Oregon Court of Appeals within 60 days after the 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 :Department of Agriculture Administrative Services Kate Brown, Governor 635 Capitol St NE Ste 100 Salem, OR 97301?2532 PESTICIDES PROGRAM TEL: (503) 986?4635 MAIL September 2016 David M. McCarty and Columbia Basin Helicopter, Inc. 60035 Blue Sky Drive La Grande, Oregon 97850 CONSENT ORDER, ODA CASE NO. 140122 Enclosed you will find your copy of the CONSENT ORDER based upon your agreement with the Oregon Department of Agriculture. You signed the agreement on August 18, 2016 and it was signed on behalf of the Department on August 31, 2016. This Order and the Agreement relate to the March 31, 2015 Notices of Imposition of Civil Penalty to Mr. McCarty and Columbia Basin Helicopter for violation of Oregon Revised Statutes (ORS) Chapter 634. You requested a hearing and participate in informal negotiation with ODA, which resulted in this agreement and Order, which shall constitute a judgment. The Department has received your payments in full of the civil penalties. Thank you for the prompt response. And thank you for your cooperation in this matter. I trust that your future pesticide related activities will be conducted in compliance with the provisions of ORS 634. ?wW' DALE MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Encl: Final Order #331166 12790 03/24/16 RDOE ?$443.00 1) $1,443.90 STATE OF OREGON 7 DEPARTMENT OF AGRICULTURE AUG 2 4 . UHE Before The Director of The Department of Agriculture In the Matter of: David M. McCarty and CONSENT ORDER AGREEMENT and Columbia Basin Helicopter, inc. FINAL ORDER a Commercial Pesticide Applicator and Operator ODA Pesticides Case No. 140122 The Oregon Department of Agriculture (the Department or ODA) and David M. McCarty and Columbia Basin Helicopter, Inc. (Mr. McCarty and Columbia Basin) agree to resolve the matter set out in the Notices of Imposition of Civil Penalty dated March 31, 2015 (the Notices) on the following terms: 1. Mr. McCarty and Columbia Basin, without admitting the alleged violation, desire to resolve this matter through this consent agreement. 2. ODA has reviewed these matters and notes that the violation was not willful or intentional, and makes the following changes to the Notices: For both Notices the penalty calculation in Section V. is changed, such that the factor (preventability), is changed from 7 (?agrant) to 3 (reasonably avoidable). For each Notice this produces a $444.00 decrease in the civil penalty. Mr. McCarty's penalty is thus decreased from $1,887.00 to $1,443.00, and Columbia Basin?s penalty is thus decreased from $2,000.00 to $1,556.00. 3. ODA notes that Mr. McCarty and Columbia Basin have taken measures to prevent future violations. These measures include using new landownership software to correct misinformation and establish exclusion areas, including BLM and Forest Service areas. and using a new auto-shutoff system whereby the spray boom is connected to the GPS system, and is thereby shut off when close to sensitive sites. 4. Mr. McCarty and Columbia Basin agree that the Director of the Department may issue a joint Final Order ?nding that Mr. McCarty and Columbia Basin acted as alleged in the Notices, except as modi?ed above in Paragraphs 1 through 3, and assessing civil penalties in the amount of $1 ,443.00 for Mr. McCarty and $1,556.00 for Columbia Basin. for a joint total of $2,999.00. 5. Mr. McCarty and Columbia Basin agree that the Final Order will remain part of their enforcement histories, but that the three-year period during which this violation would be considered for calculating a penalty will expire March 31, 2018. 6. Without admitting the alleged violation, and in order to resolve these matters, Mr. McCarty agrees to pay $1,443.00 and Columbia Basin agrees to pay $1,556.00. Mr. McCarty and Columbia Basin agree to pay these amounts in full within ten (10) business days of the issuance of this Order, or as otherwise agreed among the parties. David M. McCarty and Columbia Basin Helicopter; Inc. ConsentAgreement and Final Order Page 1 of 2 7. Mr. McCarty and Columbia Basin will send the payment/s to: Oregon Department of Agriculture Pesticides Program 635 Capitol Street NE Salem, Oregon 97301-2532 8. Mr. McCarty and Columbia Basin waive all rights to a contested case hearing and to all judicial review on the matters set out in the Notices. 9. Mr. McCarty and Columbia Basin agree to waive any and all claims of any kind against the State of Oregon, its employees, of?cers or agents arising out of the matters and events relating to the matter set out in the Notice, including but not limited to any claim for damages or fees pursuant to 43 USC 1983, any federal or state constitutional claim or any action in tort. 10,. The undersigned representative of Columbia Basin Helicopter, Inc. hereby represents and warrants that he has the authority to Sign this Consent Agreement on behalf of Columbia Basin and thereby bind the corporation to the foregoing stipulations and agreements. 34%: {sf/gave: ?David M. McCarty, indivi?atiauy and for Columbia Basin Helicopter, Inc. (. 4M Dale L. Mitchell Dated Pesticides Compliance Program Manager Oregon Department of Agriculture NOW THEREFORE, the Director of the Oregon Department of Agriculture ?nds that David M. McCarty and Columbia Basin Helicopter, Inc. acted as alleged in the Notices, except as modified above in Paragraphs 1 through 3, and with revised enforcement provisions as noted in Paragraph 5, and hereby assesses civil penalties against Mr. McCarty in the amount of $1,443.00, and against Columbia Basin in the amount of $1,556.00, for a joint total of $2,999.00, which Mr. McCarty and Columbia Basin will pay within 10 business days, or as otherwise agreed among the parties. IT IS SO ORDERED DATED this QL day of M. 2016. - ?rth/(x, ?Katy Coba - Director Oregon Department of Agriculture David M. McCarty and Columbia Basin Helicopter, Inc. Consent Agreement and Final Order Page 2 of 2