regon Department of Agriculture Administrative Services 635 Capitol St NE Ste 100 Salem, OR 97301-2532 Kate Brown, Governor PESTICIDES PROGRAM TEL: 503-986-4635 CERTIFIED MAIL September 7? 2016 Doug A. Herndon 3184 Elliot St. NW Salem, OR 97304 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, ODA PESTICIDES CASE NO. 160168 This is a Notice of Imposition of. Civil Penalty and Proposed/Final Order that is based on a pesticide investigation conducted by the Pesticides Program of the Oregon Department of Agriculture. This NOTICE addresses violation of Oregon Revised Statutes (ORS) Chapter 634. The action is taken pursuant to statutory and regulatory provisions including but not limited to ORS Chapter 183, ORS 634.900 et seq, Oregon Administrative Rules (OAR) Chapter 137, Division 3, and OAR 603-057-0500 et seq. Also enclosed is information on contested case rights and procedures. This information is provided for your consideration should you select to contest the Notice and request an administrative hearing of this matter. Read all of the Notice carefully. If you request a hearing in this matter, your request for hearing must be made in writing to the Oregon Department of Agriculture so that it is received by the Department within ten business days of the date that you receive the NOTICE. If you do not request a hearing this Notice will become the Final Order, and the Final Order shall constitute a judgment. Important Note: The Department is also issuing a separate proposed enforcement action to your employer Western Ag Improvements, Inc. That proposed action is specific to the business. Your request for a hearing or payment of penalty is separate from and has no bearing on Western Ag Improvements, nc.'s response to its enforcement action, although hearing processes could be combined if both parties request hearings. L1: 5W DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Encl: Notice of Contested Case Rights and Procedures . \k If} STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture NOTICE OF IMPOSITION OF CIVIL PENALTY and In the Matter of: ORDER, for Violation of the State Pesticide Control Act, ODA Pesticides Case No. 160168 Doug A. Herndon a pesticide consultant and applicator The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $555.00, against Doug A. Herndon (Doug) as authorized by statutory and regulatory provisions including, but not limited to, ORS 634.900 to ORS 634.915 and OAR 603?057-0500 to 603-057-0532. The findings and conclusions on which this determination is based, and the criteria used to calculate the penalty, are set out below. I. APPLICABLE LAW 1. The applicable law includes the following: Oregon Revised Statutes (ORS) Chapters 183 (administrative law), 561 (agriculture), and 634 (pesticides); Oregon Administrative Rules (OAR) Chapter 137, Division 3 (contested case procedures); and OAR Chapter 603, Division 57 (pesticide control). 2. Oregon?s pesticide control law is known as the State Pesticide Control Act and is codified in ORS Chapter 634. 3. ORS 634.006(8) states: ?Pesticide? includes: ?Defoliant? which means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant with or without causing abscission; 'Desiccant? which means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue; (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; ?Insecticide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any insects which may be present in any environment whatsoever; 'Nematocide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating nematodes; (9) ?Plant regulator' which means any substance or mixture of substances intended, through physiological action, to accelerate or retard the rate of growth or rate of maturation or to otherwise alter the behavior of ornamental or crop plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants or soil amendments; or Any substance, or mixture of substances intended to be used for defoliating plants or for preventing, destroying, repelling or mitigating all insects, plant fungi, weeds, rodents, predatory animals or any other form of plant or animal life which is, or which the department may declare to be a pest, which may infest or be detrimental to vegetation, humans, animals, or be present in any environment thereof." Doug A. Herndon Civil Penalty Page 2 of 8 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(9) states ?Pesticide applicator? or ?applicator? means an individual who: Is spraying or applying pesticides for others; Is authorized to work for and is employed by a pesticide operator; and Is in direct charge of or supervises the spraying or other application of pesticides or operates, uses, drives or physically directs propulsion of equipment, apparatus or machinery during the spraying or other application of pesticides, either on the ground or, if certified under ORS 634.128, by aircraft." 6 ORS 634. 006(10) states ?Pesticide consultant' means a person who offers or supplies technical advice, supervision, aid or recommendations to the user of pesticides classified by the department as restricted- -use or highly toxic pesticides, whether licensed as a pesticide dealer or not.? 7. ORS 634.006(11) states ?Pesticide dealer? means a person who sells, offers for sale, handles, displays or distributes any pesticide classified by the department as a restricted-use or highly toxic pesticide.? 8. 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. 9. ORS 634.006(15) states ?Private applicator' means an individual who uses or supervises the use of any pesticide, classified by the department as a restricted-use or highly toxic pesticide, for the purpose of producing agricultural commodities or forest crops on land owned or leased by the individual or the employer of the individual.? 10. 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. 11. ORS 634.106(4) states 634.112 to 634.126 and 634.146 shall not apply to: A farmer or forestland owner applying pesticides, other than restricted-use pesticides, by use of equipment of the farmer or forestland owner for others on an occasional basis not amounting to a principal or regular occupation, if the farmer does not publicly hold out as a pesticide applicator and if the pesticides that are applied are furnished by the owner of the land on which such pesticides are applied.? 12. ORS 634.372(9) states person may not: As a pesticide operator, engage in the business of, or represent or advertise as being in the business of, applying pesticides upon the land or property of another, without first obtaining and maintaining a pesticide operator?s license. The operator also may not engage in a class of pesticide application business that is not specifically authorized by license issued by the State Department of Agriculture. The operator also may not employ or use any person to apply or spray pesticides who is not a licensed pesticide applicator or pesticide trainee." 13. ORS 634.372(8) states: person may not: As a pesticide applicator, work or engage in the application of any classes of pesticides without first obtaining and maintaining a pesticide applicator?s license, or apply pesticides that are not specifically authorized by such license." Doug A. Herndon Civil Penalty Page 3 of 8 14. 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. 15. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 16. 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.? 17. 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.? 18. 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." II. FINDINGS OF FACT ODA Pesticides Case No. 160168 1. This Notice and Order is the result of a pesticide use investigation conducted by ODA in response to a complaint about geese deaths associated with the use of pesticides in Washington County, Oregon in August of 2015. The persons in contact with the Department regarding this matter included Jim Herndon (Jim) and Doug Herndon (Doug). 2. Western Ag Improvements, Inc. (Western Ag) is a domestic business corporation with a principal place of business located at 17780 SE Wallace Road, Dayton, Yamhill County, Oregon. Jim is the registered agent and president of Western Ag. Western Ag sells pesticides, fertilizers, and surfactants to agricultural growers, as well as offering field scouting and testing services. 3. Doug is a senior agent or employee of Western Ag. 4. Western Ag is licensed by the ODA as a Pesticide Dealer, license this license was first issued in March of 2002. Western Ag is also licensed by the ODA as a Commercial Pesticide Operator, license this license was first issued in March of 2013. Doug is licensed by the ODA as a Pesticide Consultant, license this license was first issued in March of 2004. Doug is also licensed by the ODA as a Private Pesticide Applicator, license AG- this license was first issued in November of 2006. Doug is not, and during 2015 was not, licensed as a Commercial Pesticide Applicator (CPA). 5. On August 18, 2015, Doug used a field spreader to apply a pesticide onto the following crops: Doug A. Herndon Civil Penalty Page 4 of 8 Field or landowner name, Location Crop Acres Osterman. Roy Road. Banks. OR Perennial Ryegrass 78 Leanders, Roy Road, Banks, OR Perennial Ryegrass 37 Wyatts, Clapshaw Road, Banks. OR Perennial Ryegrass 72 Kampers, Reiling Road, Banks, OR Fescue 9 Bakers, Mountaindale Road, Banks, OR Perennial Ryegrass 65 Bakers. Mountaindale Road, Banks, OR Fescue 20 The crops indicated above are owned or managed by Larry J. Duyck (Mr. Duyck). The pesticide Doug applied to these fields was: Prozap Zinc Phosphide Pellets, EPA Reg. No. 61282-49, HACCO, lnc., Randolph, Wisconsin (active ingredient zinc phosphide) For this application, Doug used a custom-built field spreader, which had been built on a Dodge Ram 2500 truck frame. It had a 680-1000 rate controller and mapping capabilities. This pesticide application may be referred to herein as the August 18 applications; the treated fields may be referred to as the Duyck fields. 6. Prozap Zinc Phosphide is designated as a restricted-use pesticide (RUP) due to hazard to non-target species. A special local needs label is in place for Oregon growers of grass seed. This label states, under Application Restrictions: Applications are only allowed May 1 through August 31. Do not apply from September 1 through April 30. 7. On October 15, 2015, having received a complaint from the Oregon Department of Fish and Wildlife veterinarian about geese having died from zinc phosphide ingestion, and having reviewed ZP purchase records from Western Ag, the Department contacted Mr. Duyck,. During this and an additional conversation on October 22, 2015, Mr. Duyck told ODA that Western Ag had performed the August 18 applications for him to his fields, as he was busy and did not believe he had the time to make the application prior to the label deadline. On October 23, 2015, Mr. Duyck provided a record of the August 18 applications. 8. On October 22, 2015 ODA contacted Western Ag. During this and subsequent conversations, Western Ag told ODA that they had not made the application. Jim told ODA that Doug had made the August 18 applications on his own time, as a favor for Mr. Duyck. 9. On October 27, 2015, ODA contacted Doug. During this and subsequent conversations, Doug described the August 18 application, which he had made for Mr. Duyck. ULTIMATE FINDINGS OF FACT 1. Western Ag Improvements, lnc. is an Oregon business that provides pesticides, fertilizers, and surfactants, as well as field scouting and testing services, to agricultural growers in Oregon. Jim Herndon is the President of Western Ag, and his brother Doug Herndon is a senior agent or employee of Western Ag. 2. On August 18, 2015 Doug applied a restricted-use pesticide, Prozap Zinc Phoshpide Pellets, to the property of another, several grass seed fields in Banks, Washington County, Oregon. In the course of arranging for this application Doug and Western Ag had led the owner/operator of the grass fields, Larry Duyck, to believe that Western Ag would be performing the application; Western Ag was holding itself out as a Commercial Pesticide Operator. During this application Doug was not licensed as a Commercial Pesticide Applicator. Doug A. Herndon Civil Penalty Page 5 of 8 3. On October 15, 2015, Larry J. Duyck told ODA that Western Ag had made the August 18 applications. On October 22, 2015, Mr. Duyck again confirmed that Western Ag had made the August 18 applications after Western Ag had told ODA that they do not make custom applications. Mr. Duyck told ODA that Doug had made the August 18 applications as a favor to him only after conferring with Jim on October 23, 2015. These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW The Oregon Department of Agriculture determines that Doug A. Herndon violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION N0. 1 Doug A. Herndon violated ORS which states A person may not: As a pesticide applicator, work or engage in the application of any classes of pesticides without first obtaining and maintaining a pesticide applicator?s license, or apply pesticides that are not specifically authorized by such license. Specifically, on August 18, 2015 Doug Herndon applied a pesticide to several grass seed fields owned or managed by Larry J. Duyck, located in Banks, Washington County, Oregon. The pesticide applied was Prozap Zinc Phosphide Pellets, EPA Reg. 61282-49 (active ingredient zinc phosphide), which is designated as a restricted-use pesticide. During the August 18 applications, Doug was not a licensed Commercial Pesticide Applicator. Following the August 18 applications, Mr. Duyck told ODA during two separate conversations that Western Ag had made the August 18 applications for him. Mr. Duyck told ODA that Doug had made the August 18 applications as a favor to Mr. Duyck only after conferring with Jim Herndon, president of Western Ag. Applying this restricted-use product to the property of another without being licensed as a Commercial Pesticide Applicator was a pesticide application made without a license, 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 $555.00. The penalty is determined using the criteria in OAR 603-057- 0525 to 603-057-0530. NB NB) $370 $555.00 $555.00 1 violation $555.00 1. N, the number of related violations within a period of three years prior to and including the date of the current violative act, is 1; OAR 2. B, the base penalty is $370.00; OAR The base penalty was determined as follows: a. The MAGNITUDE is CATEGORY (MAJOR) under OAR Doug A. Herndon Civil Penalty Page 6 of 8 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 OAR 3. P, the past occurrence of unrelated violations is 0 (zero). 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 7 because the actions by Doug determined to be violative were flagrant; OAR Doug had the benefit of working for Western Ag. At the time of the pesticide application activity, Western Ag maintained a CPO license for the Hermiston branch of the company. This license had been active since 2013. During this period, Western Ag also employed numerous licensed Commercial Pesticide Applicators and Pesticide Consultants. Doug maintains both a Pesticide Consultant and a Private Pesticide Applicator license. Further, James A. Herndon, President of Western Ag, had previously held a CPA license. Based on this license history and license status, Doug should have been aware that he was required to have a Commercial Pesticide Applicator license to make the applications for Mr. Duyck. 6. C, cooperativeness is OAR Doug A. Herndon was cooperative. Any final order regarding this Notice of Imposition of Civil Penalty will become a part of Doug'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 Doug to additional enforcement actions including, but not limited to, civil penalties, product seizure, or license revocation. VI. RIGHT TO A HEARING You are entitled to a contested case hearing as provided by statues and rules including, but not limited to: ORS Chapter 183, including 183.413 to 183.470, and ORS 183.745; OAR Chapter 137, Division 3, including OAR 137-003-0501 to 137-003-0700; ORS 634.905; and OAR Chapter 603, Division 57. The request for a hearing must be made in writing to the Department within ten business days of the date that you receive the OAR The request should be made to the attention of: Andrea Sonnen Pesticides Program, Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301-2532 If you make a timely request for a hearing you will be notified of the date, time and place of such hearing. You will also be given information on the procedures, right of representation and other rights of parties relating to the conduct of the hearing before commencement of the hearing. An administrative law judge from the Office of Administrative Hearings will preside at any hearing. The Director of the Department has authority to issue the final order. If the recipient of the enforcement notice is a corporation, partnership, limited liability company, unincorporated association, trust, or other entity that is not a natural person or individual, it must be represented in the contested case process by an attorney unless otherwise authorized by law. Furthermore, the attorney representing such a corporation or other entity must ratify the request for hearing, in writing, within 28 days of the date that the request is received by the agency; OAR 137-003-0550. This provision does not, however, require any entity to be represented by an attorney at any informal conference. Individuals may but are not required to be represented by counsel. The state will not provide legal counsel Doug A. Herndon Civil Penalty Page 7 of 8 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 for judicial review within this time period you will lose your right to appeal. fl?? clay of .2016 aluwml/?mam TY coin. OREGON DEP AGRICULTURE DIRECTO NOTE: Copies of the Department's investigation report will be provided upon request. The request must be made in writing. There may be a monetary charge for some reports. The written request should be made to: Oregon Department of Agriculture, Pesticides Program, ATTN: Andrea Sonnen, 635 Capitol Street NE, Salem, Oregon 97301-2532. NOTICE TO ACTIVE DUTY SERVICEMEMBERS: Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800-452-7500, or the nearest United States Armed Forces Legal Assistance Office through Doug A. Herndon Civil Penalty Page 8 of 8 Doug A. Herndon Oregon Department of Agriculture, Pesticides Case No. 160168 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 (NICP), and dated '9 and those issues related thereto that are properly before the presiding officer to this proceeding. Law that applies. The matter set for hearing is a contested case. The hearing will be conducted as provided in Chapter 183 and 634 of the Oregon Revised Statutes the administrative rules of the ODA, OAR 603?057?0500 through 603- 057-0515, and the Attorney General?s Office of Administrative Hearing Rules, OAR 137-003-0501 to 137-003?0700. Other laws involved include: ORS Chapters 561, 570, and 616; additional rules of the ODA, OAR 603-057; Title 7, Chapter 6, Subchapter ll of the United States Code; and Title 40, Parts 152, 156, and 180 of the Code of Federal Regulations. Right to attorney. You may be represented by an attorney at the hearing. Most persons are represented by counsel for hearings involving ORS 634. You are not required to be represented by counsel, unless you are a corporation, LLC, partnership, etc., in which case you are required to be represented by an attorney at the hearing, and more immediately, your request for a hearing must be ratified by an attorney within 28 days of the agency's receipt of the request, OAR 137- 003-0550. If you are not represented at the hearing and during the hearing you determine that representation by an attorney is necessary, you may request a recess to allow you an opportunity to secure the services of an attorney. The hearing ALJ will decide whether to grant such a request. The ODA will be represented by an attorney. Legal aid organizations may be able to assist a party with limited financial resources. Administrative Law Judge. The person presiding at the hearing is known as the administrative 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 affirmation to tell the truth. The ODA or the ALJ will issue subpoenas for witnesses on your behalf upon a showing that their testimony is relevant to the case and is reasonably needed by you to establish your position. If you are represented by an attorney, your attorney may issue subpoenas for attendance of witnesses at hearing. Payment of witness fees and mileage to the person subpoenaed is your responsibility. Order of evidence. A hearing is similar to a court proceeding but is less formal. Its general purpose is to determine the facts and whether the proposed action is appropriate. The order of presentation of evidence is normally as follows: a. Testimony of witnesses and other evidence of the ODA in support of its proposed action. b. Testimony of your witnesses and your other evidence. 0. Rebuttal evidence by the ODA and by you. Burden of presenting evidence. The burden of presenting evidence to support an allegation or position rests upon the proponent of the allegation or position. If you have the burden of proof on an issue, or if you intend to present evidence on an issue in which the agency has the burden of proof, you should approach the hearing prepared to present the testimony of witnesses, including yourself, and other evidence that will support your position. All witnesses are subject to cross- examination and also to questioning by ALJ. Notice of Contested Case Rights and Procedures Page 1 10. 11. 12. 13. 14. 15. 16. 17. Admissible evidence. Relevant evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible and will be received. Hearsay evidence is not automatically excluded. Rather, the fact that it is hearsay generally affects how much reliance the ALJ and the Director of the ODA will place on it in reaching a decision. There are four kinds of evidence: a. Knowledge of the agency or ALJ. The agency or ALJ may take ?official notice" of facts based on the agency's or 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 "official notice? or ?judicial notice" of any fact and you will be given an opportunity to contest any facts so noticed. b. Testimony of witnesses. Testimony of witnesses, including you, who have knowledge of the facts may be received in evidence. c. Writings. Written documents including letters, maps, diagrams and other written material may be received in evidence. d. Experiments, demonstrations and similar means used to prove a fact. The results of experiments and demonstrations may be received in evidence. Objections to evidence. Objections to the admissibility of evidence must be made at the time the evidence is offered. Objections are generally made on one of the following grounds: a. The evidence is unreliable; b. The evidence is irrelevant or immaterial and has no tendency to prove or disprove any issue involved in the case; c. The evidence is unduly repetitious and duplicates evidence already received. Continuances. There are normally no continuances granted at the end of the hearing for you to present additional testimony or other evidence. However, if you can show that the record should remain open for additional evidence, the ALJ may grant you additional time to submit such evidence. Record. A record will be made of the entire proceeding to preserve the testimony and other evidence for appeal. This may be done by use of a tape or digital recorder or court reporter. The record is generally not transcribed, unless there is an appeal to the Court of Appeals. However, you may obtain a copy of the tape recording upon payment of the costs of making a copy of the tape. If a court reporter is used, you may obtain a transcript or a copy of the court reporter?s transcript upon payment of a transcription fee or other fee that the parties may agree upon. Proposed Order and Exceptions. The ALJ will issue a proposed order in the form of findings of fact, conclusions of law and recommended agency action. You will be provided with a copy and you will be given an opportunity to make written objections, called "exceptions," to the 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 modifies the proposed order in any substantial manner, the agency in its order will identify the modifications and will provide an explanation as to why the agency made the modifications. The agency may modify a proposed finding of ?historical" fact only if the proposed finding is not supported by a preponderance of the evidence in the record. Appeal. If you wish to appeal the ?nal order, you must file a petition forjudicial review with the Oregon Court of Appeals within 60 days after the final order is served upon you. See Oregon Revised Statutes 183.482. Notice to Active Duty Servicemembers. Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800-452-7500, or the nearest United States Armed Forces Legal Assistance Of?ce through Notice of Contested Case Rights and Procedures Page 2 . I 'D??pairtment of Agriculture 'Administrative Services Kate Brown, Governor 635 Capitol St NE Ste 100 TEL: (503) 936-4635 CLASS MAIL October ll, 2016 Doug A. Hemdon 3184 Elliot St. NW Salem, OR 97304 RE: ODA Pesticides Case No. 160168. Proposed Consent Agreement and Final Order Mr. Hemdon: Enclosed is a proposed Consent Agreement and Final Order. This order is a result of our recent determination to agree on a settlement of the incident. ODA Pesticides Case No. 160168. I believe you will ?nd the terms of this agreement and order consistent with our discussions. If there is a change you would like to discuss, please call me as soon as possiblesatisfactory, please sign the agreement and return the original in the enclosed envelope not later than November 4, 2016. I can be contacted at telephone (503) 986?4635. Wow DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Attached: Proposed Consent Agreement and Final Order STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture In the Matter of: Doug A. Herndon CONSENT AGREEMENT and FINAL ORDER a pesticide consultant and applicator ODA Pesticides Case No. 160168 The Oregon Department of Agriculture (the Department or ODA) and Doug A. Herndon (Mr. Herndon} agree to resolve the matter set out in the Notice of Imposition of Civil Penalty dated September 7, 2016 on the following terms: 1. admitting or denying the ?ndings of fact and alleged violations, Mr. Herndon maintains that if a violation did occur, it was not done with ?agrant disregard for Oregon Pesticide Law. 2. The Department agrees to modify Section V. Penalty, Paragraph 5, to indicate that the preventability of the violation and the presence of negligence or misconduct is 3 because the actions by Mr. Herndon determined to be violative were reasonably avoidable, rather than ?agrant. 3. Mr. Herndon agrees that the Director of the Department may issue a ?nal order as modi?ed above in paragraph 2, and assessing a civil penalty in the amount of $407.00. 4. Mr. Herndon agrees that the ?nal order will remain a part of Mr. Herndon's enforcement history for three years. 5. Mr. Herndon agrees to pay the entire amount of the civil penalty within seventy (70) days of the issuance of this Order. 6. Mr. Herndon will send the payment/s to: Oregon Department of Agriculture Pesticides Program 635 Capitol Street NE Salem, Oregon 97301-2532 7. Mr. Herndon waives all rights to a contested case hearing and to all judicial review on the matter set out in the Notice. 8. Mr. Herndon agrees to waive any and all claims of any kind against the State of Oregon, its employees, officers 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. DOUG A. HERNDON - CONSENT AGREEMENT and FINAL ORDER Page 1 of 2 lO/zz? ll? /boug A. Herndon Date a; Dale L. Mitchell Date Pesticides Compliance Program Manager Oregon Department of Agriculture NOW THEREFORE. the Director of the Oregon Department of Agriculture ?nds that Doug A. Herndon committed the violation as alleged in the Notice. except as modi?ed above in paragraph 2. and hereby assesses a civil penalty against Mr. Herndon in the amount of $407.00, which Mr. Herndon will pay in accordance with the stipulations set out in paragraph 5 above. IT IS so DATED this /0 'day of 201s. leJQ/sx A \?sa Charpilloz Hanson" Acting Director Oregon Department of Agriculture DOUG A. HERNDON - CONSENT AGREEMENT and FINAL ORDER Page 2 of 2