Kate Brown, Governor Case Number: 170612 Case Name: WILBUR ELLIS CO BRANCH 417400 / Madison-Jamil Case Closed 1 Overview Investigator Case Reviewer Christy Brown Date Started 05/26/2017 Yes No Complaint? Yes No Complaint Form Provided? Yes No PARC Yes No Cease & Desist Yes No Verified Compliance? Yes No ROL Provided? Date Completed 02/12/2018 List Test(s) Requested Chlorothalonil Chlorpyrifos Number of Samples Taken 4 Number of Samples Analyzed 4 Number of Applicators 1 Date Reviewed 02/28/2018 Sample Type Type of Investigation AUF Related Cases Date Case Completed Sixty Days 07/25/2017 One Hundred Twenty Days 09/23/2017 Tracking Drift Devices Aerial Nature Liquid spray application AIs of interest RUP Andrea Sonnen Air Animal Soil Swab Water 9/26/18 Veg Other Parties Invoived Parties Involved Last/ Business Name Address first License at thense pe Pnone Expirauan Date Eman State Zip pnone 2 County Category Grower Lone Oak Tree Farm Judith Bibie -- Operator WILBUR ELLIS C0 Manager Corey CPO -- Applicator APA BELLIKKA GARRETT AGVL1043179APA ARA -- Applicator CPA GARRETT AGVL1031197CPA CPA -- Manager FRANSEN COREY ARA 1. Andrea Sonnen 9/25/18 Application Information Date of Application 5/26/2017 Start Time 1240 End Time 1429 Time of Day Application Note Category Applicator AG-Insect/Fungi Garrett Bellikka Location of Application North of S Criswell Road, W of S Springwater Rd Specific Site/Crop 75 acres Christmas trees Rate of Application (mixing rate, diluent, rate per area, etc) 64 fl oz / A Chlorothalonil 32 fl oz / A Lorsban 10 gal / A volume rate Purpose needlecast/midge/aphids/needle blight Method of Application helicopter Pesticides Involved Type Manufacturer Trade Name EPA Reg. No. Active Ingredients Fungicide SIPCAM AGRO USA INC Chlorothalonil 720 SFT 60063-7 Chlorothalonil Insecticide DOW AGROSCIENCES LLC Lorsban Advanced 62719-591 Chlorpyrifos 2. Andrea Sonnen 9/26/18 Narrative Friday May 26, 2017 approx 15:00 hrs: Julie Madison-Jamil called the Pesticides Program to complain that she was being actively sprayed upon by a pesticide application. The call was transferred to me, Christy Brown. Jamil said she is surrounded by Christmas tree farms and after enduring four months of smoke (pile burning) she was presently in a situation where a helicopter was making passes very near to her, applying a pesticide that she could smell, and which was burning her throat. She said the field in question was located to the west of Criswell Rd. Her partner could see that the helicopter was spraying off target. I pointed out that it can be hard to tell where an application is being made unless you have just the right line of sight. Jamil was concerned that her livestock (goats and chickens) would be negatively affected. She said chickens have delicate respiratory systems, and was actively trying to get them back into their coop in an effort to protect them. Jamil is disgusted with the corporate farming practices around her that "don't respond to her concerns", and which are "owned by non-residents." She said "they are poisoning the second best soil in the state". When she contacted one Christmas tree grower about smoke she said they told her, "go ahead and complain, we have lobbyists." She identified Emerald Christmas Tree Company as the owner of the trees being sprayed today. I called the 1-800 number for Emerald Christmas Tree Co. and left a message asking for application information. May 30, 2017: I spoke with Chris from Emerald Christmas Tree, who said she checked their records, and they were not applying anything on the May 26. She suggested contacting McKenzie Farms, who grow a lot of Christmas trees in that area. I drove by the complainant's property and identified the Christmas tree farm to the west of Criswell Rd. That field clearly had a sign posted saying "Emerald Christmas Tree Company" with two phone numbers. I met with Julie Jamil and her husband Daanish Madison-Jamil, as well as their business partner Zach Hinkleman. I presented my credentials. Dannish was not home at the time at the time of the application, but when he came home 3 or 4 hours later he said could still smell chemicals. Hinkleman was the first to notice the helicopter. He said it made about 6 passes that he could see, flying north/south and making turns above the tops of the trees that separate their farm from the Christmas tree plantation. He described the helicopter as black with yellow lettering, but didn't remember if the writing was a logo or just an identification number. He felt that the wind was about 10 mph in their direction (drift would head toward Jamil's property). Hinkleman does not remember seeing any liquid coming out of the spray boom. Julie was present for two additional helicopter passes. She said she saw liquid coming out of the booms. They both said it smelled awful all day. 3. Andrea Sonnen 9/26/18 Narrative Julie was holding a rabbit in a cloth the whole time we were meeting, and eventually I asked about the rabbit. She said it had just lost it's mate this morning. The mate died unexpectedly and she attributed this death to the helicopter spray. Additionally there was a silkie chicken that developed a lame leg on Saturday, which she also attributed to the spray. The Jamil's purchased their property a year ago, with plans to restore the house and farm. I explained that I would be visiting McKenzie Farms to ask about applications they have made recently. Julie asked if I could provide her phone number for application notifications. I suggested that it might be best if she approach McKenzie herself to ask for notification and try to present a cooperative disposition. I visited McKenzie Farms to ask if they knew anything about a helicopter working last Friday. I spoke with Jenna in the office who said she provided notice for neighbors of those sprays. McKenzie did have Wilbur-Ellis (Chehalem) apply Bravo and Lorsban to 10 different farm properties, but they did it on Wednesday and Thursday. I said I would check with Wilbur-Ellis to see if I could make sense of it. Jenna asked if she should add this neighbor to her list of people to notify and I said they would appreciate it. I provided their phone number and address. Sample Plan: I took three samples of grass in a gradient pattern moving from the farthest point away from the application (near Jamil's house), to the grass on the opposite side of the Christmas trees. At this time I did not have permission to sample in the Christmas trees. Samples were collected wearing clean, alcohol rinsed nitrile gloves, placed in paper bags, then sealed in plastic bags and held in secure enforcement freezer. These samples were collected: AUF170612-1 grass near house AUF170612-2 grass near vegetable garden AUF170612-3 grass on opposite side of Criswell Rd from Christmas trees May 31, 2017: John Anderson with McKenzie Farms called me to say that they don't have any properties close to the complainants. He cleared up the confusion: the field that is marked Emerald Christmas Tree Company is actually owned and managed by Judy Bible and was also treated by Wilbur-Ellis. I called Wilbur-Ellis, and spoke with Brianna Wood. She said she would get the application record for the property in question. June 1, 2017: 4. Andrea Sonnen 9/26/18 Narrative Wilbur-Ellis' Chief Pilot Corey Fransen emailed me the application records for Bible's three fields on August 26. His records include GPS spray maps, showing that the helicopter stayed within the boundary of the field while applying. It also showed that the helicopter made 3.5 passes parallel to Criswell, so that turns were being made farther from the edge of Criswell to avoid the power line hazard. I received permission from Fransen to share the application map with the complainant. I called Judy Bible, of Lone Oak Tree Farm. I explained the situation, and she gave me permission to take a sample from her trees. She was surprised that the Jamils would be complaining because she felt they were pretty far away, and with trees as a barrier. She said that she notified a neighbor, Terry, who lives on Criswell and puts his bees away prior to her applications. Bible wasn't on site at the time of the application, but her foreman was, and he reported that this helicopter pilot was really able to fly low. She also mentioned that only the mature part of the field (for harvest in 2018) was treated, not the younger trees. I stopped into Jamil's property before taking my sample of the treated field. I talked with Daanish and let him know that his neighbor, Bible, was the owner of that field. He said that he had been putting off going around meeting his neighbors, and would make a point to meet with her. He was encouraged that she notifies the neighbor who has bees. I provided him with a complaint form, and explained PARC, and that he should expect a call from their representative. Sample Plan continued: I took a fourth sample in the treated Douglas fir Christmas tree field. Sample was taken wearing a new pair of nitrile gloves, rinsed with alcohol. Newly growing shoots were collected. There was obvious white residue on the vegetation. The sample was collected in a paper bag, and sealed in a plastic bag. AUF170612-4 treated Christmas tree vegetation Label Review: Chorothalonil 720 (60063-7) was labeled for use on conifers, specifically Christmas trees. The rate for Swiss Needlecast is listed as 2.75 - 5.5 pints per acre. Wilbur-Ellis used 4 pints per acre, which was appropriate. There were no restrictions for mixing with Lorsban. The label included the following drift language: "When applications are made with a crosswind, the swath will be displaced downwind. Therefore, on the up and downwind edges of the field, the applicator must compensate for this displacement by adjusting the path of the aircraft upwind. Swath adjustment distance should increase with increasing drift potential (higher wind, small drops, etc.). Drift potential is lowest between wind speeds of 2-10 mph." 5. Andrea Sonnen 9/26/18 Narrative The application record indicates that wind was 6 mph at the start and end of the application. The wind direction noted as 315 and 330 degrees, which is coming roughly from the NW. The wind speed was not an issue. However, the direction would have put any drift (or odors) on course for the complainant's property. Lorsban Advanced (62719-591), a restricted use product, was labeled by FIFRA 24(c) special label for use on Christmas Tree Plantations, by helicopter in Clackamas County. The label designates "a spray volume not less than 2 gallons per acre for aerial application..." The rate of application for target pests including Douglas Fir needle midge and aphids was 1 quart per acre. The application record indicates that the application rate and volume were appropriate. The 24(c) label provides a table for "required buffer zones" to sensitive areas including "all property associated with buildings occupied by humans for residential or commercial purposes". The Jamil's property would count as a sensitive area in this case. The maximum buffer zone for an aerial application between 0.5 and 1 lb ai/A (record indicates application was 0.94 lb ai/A) is 25 feet. There was approximately 200 feet of buffer between the application and Jamil's property, which is in exceedance of required buffer zone. License Review: Garrett Bellikka was the pilot-applicator for Wilbur-Ellis. He had a valid commercial pesticide applicator with the agriculture insecticide/fungicide category. He also had the appropriate aerial applicator license. Wilbur-Ellis had the appropriate operator license. Record Review: The application record provided by Wilbur-Ellis included all of the required elements. June 20, 2017: Daanish called the Pesticides Program and spoke with Dale Mitchell about a helicopter application. It was unclear if the application was a new incident. June 21, 2017: I called the number for Madison-Jamil and spoke with Julie. She said she pretty much had "it figured out". McKenzie Farms had recently provided her with notification prior to making an application. They don't have a bordering property, but Julie said she could smell the pesticide. She ended up speaking with the pilot for that application, and felt that he was doing a good job, leaving a buffer to allowing for wind. The pilot showed her maps, and said that, yes, there would be an odor from what they were using. Julie said she did have a chance to speak with Bible's foreman, who she felt would not be willing to work with her. She described him as basically laughing at her concerns, and saying that he himself has animals in the area, and they are fine. 6. Andrea Sonnen 9/26/18 Narrative Julie also went on to express her strong disapproval of conventional agriculture practices (pesticides and smoke), and her desire to get involved politically or provide testimony if an opportunity was available. December 22, 2017: Lab results were published. SAMPLE CHLOROTHALONIL CHLORPYRIFOS grass near house AUF170612-1 <0.010 ppm grass near vegetable garden 0.021 ppm AUF170612-2 0.18 ppm grass across from Christmas trees 0.059 ppm AUF170612-3 0.53 ppm treated Christmas tree vegetation 3.3 ppm AUF170612-4 65 ppm <0.010 ppm February 2, 2018: I contacted Wilbur-Ellis and was directed to speak with manager Corey Fransen. I relayed the test results over the phone and explained that it would take still more time for the case to get through review. Fransen asked if he could have a copy of the results, and I emailed them to him. Fransen said his company would not be applying next to that neighbor in the future, and he wants to encourage the use of ground applications in the area. He expressed concern that the complainants might try to go to the press with this case. He recounted further complaints from Madison-Jamil after the application in this case - in November they complained of drift after two separate helicopter applications of a "moisture lock" product "over a mile away from them". That complaint is reflected in case 180228. I called Madison-Jamil and left a voice message indicating that I had lab results to share with them, and for them to call me back. February 12, 2018: I have not received a callback from Madison-Jamil. I am sending this case to review to get it moving along. Investigator Recommendations: The sample results indicate a drift pattern. In particular, the two active ingredients were detected in the two of the three samples taken from outside of the treatment area, in concentrations that were 2 orders of magnitude less than those found in the treatment area. The concentration of both active ingredients diminished with distance from the treatment area, and the farthest sample indicated no detection of the active ingredients. 7. Andrea Sonnen 9/26/18 Narrative Wilbur-Ellis Co Branch 417400 violated ORS 634.372(4), which states that A person may not ... Perform a pesticide application activity in a faulty, careless or negligent manner. Specifically, on May 26, 2017, Garrett Bellikka, as an agent of Wilbur-Ellis Co, applied Chlorothalonil 720 (EPA Reg No 60063-7) and Lorsban Advanced (EPA Reg No 62719-591) by helicopter to a Christmas tree plantation belonging to Judy Bible, located to the north and west of S Criswell Rd (near intersection with S Springwater Rd) in Oregon City, Clackamas County, Oregon. Sample results showed that the active ingredients Chlorothalonil and Chlorpyrifos were found in two of the three samples taken off-site from the application target. The ingredient concentrations diminished with distance from the treatment site, and were not detected in the site farthest from the treatment site, lending to a clear drift pattern. Drifting a pesticide product from the target site is considered a faulty, careless or negligent application, in violation of ORS 634.372. Garrett Belikka violated ORS 634.372(4), which states that A person may not ... Perform a pesticide application activity in a faulty, careless or negligent manner. Specifically, on May 26, 2017, Garrett Bellikka, as an agent of Wilbur-Ellis Co, applied Chlorothalonil 720 (EPA Reg No 60063-7) and Lorsban Advanced (EPA Reg No 62719-591) by helicopter to a Christmas tree plantation belonging to Judy Bible, located to the north and west of S Criswell Rd (near intersection with S Springwater Rd) in Oregon City, Clackamas County, Oregon. Sample results showed that the active ingredients Chlorothalonil and Chlorpyrifos were found in two of the three samples taken off-site from the application target. The ingredient concentrations diminished with distance from the treatment site, and were not detected in the site farthest from the treatment site, lending to a clear drift pattern. Drifting a pesticide product from the target site is considered a faulty, careless or negligent application, in violation of ORS 634.372. 8. Andrea Sonnen 9/26/18 Attachments Attachment Name application record application record map case notes Chlorothalonil 720 (ODA digital) lab results 12/22/17 Lorsban Advanced (ODA) Lorsban Advanced 24(c) (ODA) map PARC referral photos and labels Sample map, and distance between treatment site and garden 9. Type Records Records Case notes Label Misc. Label Label Maps Correspondence Photos Maps Andrea Sonnen 9/26/18 Enforcement Summary Name Wilbur-Ellis Co. Bellikka, Garrett License Type CPO CPA Prohibition Violated Number of Actions Action CP Paid? Notice Issued Notice Served TOTAL Orig CP Amount $ 10. Andrea Sonnen Orig CP Amount $ Hearing Reqsted Informal Held Final Order Date TOTAL Actual CP Amount $ 9/26/18 Actual CP Amount $ Enforcement Notes March 5, 2018: I, Michael Babbitt, left voice mail for Corey Fransen, stating that the analytical results did show deposition on the complainant's property, and asking him to call me. I also noted that Christy was no longer with the Pesticides Program, and that I would be his contact henceforth. He called me back and noted that Christy had told him about the analytical results. I explained how the case was likely to unfold, regarding an enforcement action, and that it would take quite a while. Corey said that they no longer worked for customers who will not communicate with their neighbors about Wilbur-Ellis' pesticide applications. March 7, 2018: I left voice mail for Mr. Fransen, explaining I would be trying to contact Garrett Bellikka. I left voice mail for Mr. Bellikka (360-523-3093). He called me back and I explained the process to him, noting that he still had the opportunity to provide any additional information. 11. Andrea Sonnen 9/26/18 Notes When Sent From To 12/27/2017 4:27:23 PM Christy Brown Michael Babbitt I had this case open, and the next thing I know it was assigned to you. I guess that means I hit something. I need it back. My last case! 1/2/2018 11:51:16 AM Michael Babbitt Christy Brown It is yours Christy. Sorry about the delay, I was out on unscheduled family leave. 2/8/2018 9:03:23 AM Christy Brown Michael Babbitt It happened again. I'm almost done with this case, but it went to your queue accidentally after I worked on it last week. Can I have it back again? Just for a sec? 12. Andrea Sonnen 9/26/18