Petition for Writ of Certiorari — Henderson v. Oregon Department of Agriculture

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) 94181 268 1 1995

No. SEFICE OB THE cusex

In The

Supreme Court of the United States

October Term, 1994

JOHN HENDERSON AND HENDERSON

AVIATION, INC.,

Petitioners,

OREGON DEPARTMENT OF AGRICULTURE,

BRUCE ANDREWS, DIRECTOR,

Respondents.

On Petition For Writ Of Certiorari

To The Oregon Court Of Appeals

PETITION FOR WRIT OF CERTIORARI

Jute K. Bott

Timotny E. MILLER

MakrTIN, BISCHOFF, TEMPLETON,

LANGSLET & HOFFMAN

3100 First Interstate Tower

Portland, OR 97201-5667

(503) 224-3113

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the Federal Insecticide, Fungicide and Roden-

ticide Act preempt a state agency from penalizing a

pesticide applicator based on the agency’s interpretation

of pesticide label language which is contrary to the EPA’s

published interpretation of the language?

TABLE OF CONTENTS

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STATUTORY PROVISION INVOLVED.............. 2

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REASONS FOR GRANTING THE PETITION....... 8

A. The Court of Appeals decision leaves States free to

apply their own interpretations to federally

approved and required pesticide label language.. 8

B. The decision of the Oregon Court of Appeals is

a errr err errr err eis 12

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TABLE OF AUTHORITIES

Page

Cases

Cipollone v. Liggett Group, Inc., __ U.S. __, 112

348. 2606, 120 1.6.20 407 (1992) .......cesccees 6, 8

King v. E.I. DuPont de Nemours and Co., 996 F.2d

ee Ec oC Wiens vag aU bus ween egaeeeca 6, 7

Papas v. Upjohn Co., 985 F.2d 516 (11th Cir. 1993) ..... 7

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct.

ee eee 4

Wisconsin Public Intervenor, We cecg 848 GC.

oo MB Be) ) een 4

Worm v. American Cyanamid Co., 5 F.3d 744 (4th

ea 2 bed liens s do he x¥ebeewa esses 7

STATUTES AND RULES

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TABLE OF AUTHORITIES - Continued

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No.

In The

Supreme Court of the United States

October Term, 1994

JOHN HENDERSON AND HENDERSON

AVIATION, INC.,

Petitioners,

OREGON DEPARTMENT OF AGRICULTURE,

BRUCE ANDREWS, DIRECTOR,

Respondents.

On Petition For Writ Of Certiorari

To The Oregon Court Of Appeals

PETITION FOR WRIT OF CERTIORARI

John Henderson and Henderson Aviation, Inc.

respectfully petition for a writ of certiorari to review the

judgment of the Oregon Court of Appeals in this case.

OPINIONS BELOW

The opinion of the Oregon Court of Appeals (App.,

infra, 1) is reported at 128 Or.App. 169, 875 P.2d 487, rev.

denied ___ Or. ___ (1994). The opinion of the Director of

the Oregon Department of Agriculture (App., infra, 16) is

unreported.

JURISDICTION

The opinion of the Oregon Court of Appeals was

entered on May 25, 1994. The Oregon Supreme Court

denied a timely petition for review on October 4, 1994.

On December 22, 1994, Justice Sandra Day O’Connor

signed an order extending the time for filing this petition

for certiorari to and including February 1, 1995.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

STATUTORY PROVISION INVOLVED

Section 136v(b) of the Federal Insecticide, Fungicide

and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq.,

prohibits states from imposing or continuing in effect

“any requirements for labeling or packaging in addition

to or different from those required” under FIFRA.

STATEMENT

Petitioner Henderson Aviation Co., Inc. is a company

engaged in the aerial application of pesticides in Oregon.

Petitioner John P. Henderson is employed by Henderson

Aviation as a pilot and aerial pesticide applicator. In 1991,

the Oregon Department of Agriculture (“ODA”) issued to

each petitioner a Notice of Imposition of Civil Penalty

based on four aerial applications of pesticide.1 The ODA

contended that in all four applications, petitioners

applied pesticides inconsistent with labeling in violation

of ORS 634.372(2).2 (App., infra, 39-43). All four violations

were consolidated and a contested case hearing was con-

ducted.

Bruce Andrews, Director of the ODA (“Director”)

concluded that in three of the four applications® peti-

tioners applied pesticides inconsistent with the following

label language:

Do not apply this product in such a manner as

to directly or through drift expose workers or

other persons.

The Director interpreted the word “expose” in the label

language to mean “creates a situation where a person may

come into contact with the pesticide.” (App., infra, 36-37).

He concluded that the label language “informs an appli-

cator not to allow any drift of the pesticide to an

1 The applications occurred on April 18, 1990, June 29, 1990,

May 15, 1991 and July 1, 1991.

2 ORS 634.372(2) provides:

No person shall:

... As a pesticide applicator or operator, intentionally

or willfully apply or use a worthless pesticide or any

pesticide inconsistent with its labeling, or as a

pesticide consultant or dealer, recommend or distrib-

ute such pesticides.

3 The pesticides applied were Thiodan, Bravo and Lorsban.

Each pesticide was registered and labeled in accordance with

FIFRA. The fourth violation was for allegedly improper mixing

of a pesticide before application. That violation (referred to as

violation no. 3 in the record) is not a subject of this appeal.

area occupied by a person.” (App., infra, 37-38). The

Director found that petitioners had violated the label

language based on soil and grass samples which showed

the presence of small amounts of pesticide in areas occu-

pied by humans. No evidence was presented establishing

that any pesticide contacted or affected any human being.

(App., infra, 25-32).

Petitioners appealed the Director’s decision to the

Oregon Court of Appeals. Petitioners argued that the

Director’s interpretation of the term “expose” is contrary

to the EPA’s interpretation and thus is expressly pre-

empted by FIFRA. (Appellants’ Brief, 16). The Court of

Appeals rejected this argument and upheld the Director’s

penalty order. (App., infra, 7-9).

When first enacted, FIFRA, 7 U.S.C. § 136 et seq., was

primarily a pesticide licensing and labeling law.

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct.

2862, 2866, 81 L.Ed.2d 815 (1984). In 1972, Congress recast

it as a comprehensive program regulating the sale, use

and labeling of pesticides. Wisconsin Public Intervenor, __

U.S. __, 111 S.Ct. 2476, 2479-80, 115 L.Ed.2d 532 (1991).

Congress authorized the Administrator of the Envi-

ronmental Protection Agency (“EPA”) to promulgate reg-

ulations to carry out the provisions of FIFRA. 7 U.S.C.

§ 136w. Pursuant to this authority, the EPA promulgated

40 C.F.R. 152 through 186. At the time the registrants

wrote the labels at issue in this case, 40 C.F.R. 170.3(a)

provided:

No owner or lessee shall permit the application

of pesticide in such a manner as to directly or

through drift expose workers or other per-

come * *”*.

That wording is substantially similar to the label

wording at issue in this case and it may be presumed that

the regulation is the source of the label language.

The term “expose” is not defined in either FIFRA or

the regulations. However, the meaning intended by the

EPA is made apparent in a subsequent amendment to 40

C.F.R. 170. Part 170 sets forth standards for protection of

workers during application of pesticides. See 53 Fed. Reg.

25974 (“Proposed Part 170 contains detailed provisions

designed to protect pesticide handlers and other persons

who work on farms, forests, nurseries and green-

houses.”). In 1988, the EPA proposed amendments to Part

170, including replacement of Part 170.3(a) with the fol-

lowing provision:

The handler employer and the handler shall

ensure that no pesticide is applied so as to con-

tact either directly or through drift, any worker

or other person * * * .

40 C.F.R. 170.210(a) (emphasis added). In the commentary

to the proposed amendments, the EPA explained that the

change from “expose” to “contact” was made in order to

clarify the instructions. 53 Fed. Reg. 25974 (July 8, 1988).

“The term ‘contact’ has been substituted for the less

precise term ‘expose.’ ” 53 Fed. Reg. 25988 (July 8, 1988).

In 1992, the EPA incorporated this more precise language

into the labeling requirements. 40 C.F.R. 156.206(a)(57

Fed. Reg. 38147, August 21, 1992).

This Court has summarized the principles governing

preemption analysis as follows:

The purpose of Congress is the ultimate touch-

stone of preemption analysis.

Congress’ intent may be explicitly stated in

the statute’s language or implicitly contained in

its structure and purpose. In the absence of an

express congressional command, state law is

pre-empted if that law actually conflicts with

federal law, or if federal law so thoroughly occu-

pies a legislative field as to make reasonable the

inference that Congress left no room for the

States to supplement it.

Cipollone v. Liggett Group, Inc., __ U.S. __, 112 S.Ct. 2608,

2617, 120 L.Ed.2d 407 (1992) (citations and internal quota-

tions omitted) quoted in King v. E.I. DuPont de Nemours and

Co., 996 F.2d 1346, 1348 (1st Cir. 1993).

Since 1972 FIFRA has included an express preemp-

tion provision. Under the caption “Authority of States,”

Section 136v provides:

(a) In general

A State may regulate the sale or use of any

federally registered pesticide or device in the

State, but only if and to the extent the regulation

does not permit any sale or use prohibited by

this subchapter.

(b) Uniformity

Such State shall not impose or continue in

effect any requirements for labeling or packag-

ing in addition to or different from those

required under this subchapter.

7 U.S.C. § 136v.

While this express preemption provision authorizes

states to regulate the sale or use of pesticides, it requires

them to defer to federal laws concerning labeling. For

instance, Section 136v(b) preempts state law tort claims

based on failure to warn as imposing impermissible label-

ing requirements. King v. E.I. DuPont de Nemours and Co.,

996 F.2d 1346 (1st Cir. 1993); Worm v. American Cyanamid

Co., 5 F.3d 744 (4th Cir. 1993); Papas v. Upjohn Co., 985 F.2d

516 (11th Cir. 1993). Only the federal government,

through the EPA, can decide what goes on a pesticide

label. “The EPA has promulgated comprehensive labeling

requirements governing the scope, content, wording and

format of herbicide labeling.” King v. E.I. DuPont de Nem-

ours and Co., supra, 996 F.2d at 1347.

Nonetheless, the Oregon Court of Appeals concluded

that the ODA’s interpretation of the label language did

not “violate section 136v(b)’s prohibition against impos-

ing a labeling requirement * * * .” (App., infra, 9). The

Court reasoned that because the EPA’s commentary was

in the context of the worker protection section of the

regulations, it need not be applied in interpreting the

labeling regulations. (App., infra, 9).

Petitioners sought review in the Oregon Supreme

Court. Review was denied on October 4, 1994. (App.,

infra, 56).

Cn ee ee eh ee ee

REASONS FOR GRANTING THE PETITION

This case presents an important issue of federal law

that has not been, but should be, addressed by this Court.

A. The Court of Appeals decision leaves States free to

apply their own interpretations to federally

approved and required pesticide label language.

“When Congress has considered the issue of pre-

emption and has included in the enacted legislation a

provision explicitly addressing that issue,” there is gener-

ally no need to look beyond that provision. Cipollone,

supra, 112 S.Ct. at 2618. Congress has expressly and

unequivocally stated that only the federal government

can decide what goes on a pesticide label. 7 U.S.C.

§ 136v(b). It necessarily follows that only the EPA can

decide what the pesticide labels mean. If the EPA indi-

cates that “expose” means “contact,” then States must

abide by that interpretation. A State’s interpretation of

federally approved label language in the face of a con-

trary interpretation expressed by the EPA has the effect of

“continuing in effect” label language which has been

disavowed by the EPA.

FIFRA and its related regulations represent a com-

plex regulatory framework for the registration, labeling

and use of pesticides. This regulatory framework pro-

vides specific roles for state agencies as well as the fed-

eral government. States are allowed to register pesticides

and approve labels only as specifically provided under

Section 136v(c), which provides for state registration of

pesticides “to meet special local needs.” The parameters

of this authority and specific guidelines for its

application are set forth in 40 C.F.R. 162. By interpreting

federally approved label language in a manner inconsis-

tent with the EPA’s interpretation, the ODA has side-

stepped the regulatory framework established by FIFRA.

It is unlawful under FIFRA, as well as ORS 634.372(2),

“to use any registered pesticide in a manner inconsistent

with its labeling.” 7 U.S.C. § 136j(a)(2)(G). However, FIFRA,

unlike ORS 634.372(2), defines what it means to use a

pesticide in a manner inconsistent with its labeling. It means

“to use any registered pesticide in a manner not permitted

by the labeling * * * .” 7 U.S.C. § 136(ee). The EPA has made

it clear that the conduct which is not permitted by the label

language at issue in this case is application of pesticide so as

to contact workers or other persons. Thus, Petitioners have

not applied a pesticide in a manner inconsistent with its

label, as defined under federal law.

ORS 634.372(2) contains a provision identical to 7 U.S.C.

§ 136j(a)(2)(G), prohibiting application of “any pesticide

inconsistent with its labeling * * * .” However, the ODA has

interpreted ORS 634.372(2) and the label language to prohibit

any application which “creates a situation where a person

may come into contact with the pesticide.” (App., infra,

36-37). The Oregon Court of Appeals has endorsed this

interpretation. (App., infra, 36-37). Thus, the ODA and the

Oregon Court of Appeals have ruled that the label prohibits

application of pesticide in a manner which may potentially

contact workers or other humans. This ruling conflicts with

federal law.

The purpose of the label language in this case has

always been to protect workers involved in the applica-

tion of pesticides. 53 Fed. Reg. 25974, 25988 (July 8, 1988).

When this language was reviewed for amendment in

1988, the EPA specifically stated that it did not intend to

regulate or prohibit drift.

This proposal continues the general prohibition

on exposure of workers through drift of

pesticides from the site of application. Applica-

tion may not take place if weather or other

conditions are such that pesticides may drift

beyond the treated area and contact nearby

workers. The Agency is aware of the problems

that may result from drift exposure of workers,

especially during aerial and airblast applica-

tions. Since drift potential is affected by many

situational factors - wind speed and direction;

nozzle size, type, angle and pressure; release

pattern; aircraft type, height and speed; topog-

raphy; particle size — the Agency considers

development of specific regulatory requirements

pertaining to drift to be infeasible at this time.

53 Fed. Reg. 25988.

Since 1988, the EPA has made it clear that the lan-

guage in 40 C.E.R. 170.3, upon which the label language

in this case is presumably based, prohibits application of

pesticides so as to contact workers or other persons. The

State of Oregon, despite the EPA’s clear expression of

intent, has used this label language to effectively prohibit

pesticide drift through application of ORS 634.372(2).

According to the Department’s understanding,

the direction informs an applicator not to apply

the pesticide in a manner that results in drift of

any quantity to an area where a person may

come into contact with it, or put another way,

the direction informs an applicator not to allow

any drift of the pesticide to an area occupied by

a person. (App., infra, 37-38) (emphasis in origi-

nal).

The ODA has penalized Petitioners for using a pesticide

in a manner inconsistent with its label pursuant to ORS

634.372(2). In doing so, the ODA applied an interpreta-

tion of the label which is different from the EPA’s inter-

pretation. Thus, the ODA has given the label a meaning

which is “in addition to or different from” the labeling

requirements under FIFRA.

By using ORS 634.372(2) and their own interpretation

of label instructions, the ODA has effectively prohibited

all drift of pesticides during application. While it is possi-

ble that 7 U.S.C. § 136v(a) would permit a State to enact

legislation that would regulate or even prohibit the drift

of pesticides, it is undeniable that a State cannot do so

under the guise of interpreting label language. To effec-

tively regulate the use of pesticides, the State must utilize

the legislative or administrative process: its legislature

must pass a bill or an agency must enact regulations

using the procedures set forth in the Administrative Pro-

cedures Act (ORS 183.310 to 183.550). In either case,

affected individuals, businesses and industries have an

opportunity to comment on the proposed regulations. By

using its interpretation of federally required label lan-

guage to accomplish its regulatory purpose, the ODA has

ignored both legislative and administrative rule-making

requirements and denied the pesticide and agricultural

industries as well as the public any opportunity to be

heard.

The title of 7 U.S.C. § 136v(b) is “Uniformity.” If

States are left free to apply any definition they choose to

pesticide label language, then the uniformity of labels

becomes an illusion. If Oregon defines “expose” to mean

“creating a situation where a person may come into con-

tact with a pesticide,” and the EPA defines it as meaning

“contact,” uniformity is defeated. If the Oregon Court of

Appeals decision stands, pesticide applicators can be

penalized by the States for applying pesticide in a man-

ner which is consistent with the labeling as drafted and

defined by the EPA. Uniformity of pesticide labeling is

nullified.

The ODA’s practice, affirmed by the Oregon Court of

Appeals, is to take soil and vegetation samples after a

pesticide application and to fine the applicator if any

amount of pesticide is found off target. Thus, the ODA

has created strict liability for pesticide drift under the

guise of interpreting label language. The EPA did not

intend such draconian results when it drafted the label

language. It specifically stated that it did not intend to

regulate drift. The ODA’s attempt to circumvent the

EPA’s intended meaning ‘of the label language is

expressly preempted by Section 136v(b).

B. The decision of the Oregon Court of Appeals is

erroneous.

By interpreting a pesticide label in a manner incon-

sistent with what is now federal law, the ODA imposes a

labeling requirement that is different from what is

required under FIFRA. The Court of Appeals erred in

concluding that the ODA’s interpretation of the label is

not preempted.

< SeeTRERR EEE

a> Men MRI —

In 1988, the EPA announced proposed amendments

to 40 C.F.R. 170.3 and other regulations governing

pesticide use. 53 Fed. Reg. 25974 (July 8, 1988). A primary

reason for the amendments was the difficulty of enforcing

the regulations as written. Id.

The wording of certain requirements in the pre-

sent Part 170 leaves room for broad interpreta-

tion due to lack of specificity. Under these

circumstances, enforcement is difficult for the

Agency and potentially unfair to those with Part

170 duties. * * * Careful drafting can assure

clarity of language and achievement of intended

regulatory purpose.

53 Fed. Reg. 25974 (July 8, 1988).

Thus, the EPA intended the changes in the wording to

clarify the regulations, not to change their intended

meaning. It is in this context that the EPA explained that

“(t]he term ‘contact’ has been substituted for the less

precise term ‘expose’” in 40 C.F.R. 170.3. 53 Fed. Reg.

25988 (July 8, 1988). The regulatory purpose of Part 170.3

has always been to prohibit pesticide contact with

workers through drift, not to prohibit any drift, however

minuscule.

The Court of Appeals dismissed the EPA commen-

tary with a strangely twisted analysis. The court inter-

preted the commentary to mean that the EPA “recognized

that ‘expose’ is subject to broad interpretation.” (App.,

infra, 8). Thus, the court concluded that the EPA, rather

than rejecting it, had somehow endorsed a “broad inter-

pretation” of “expose,” rendering the Director’s defini-

tion acceptable. (App., infra, 8). It is clear from the

commentary that the EPA was recognizing a problem that

resulted from imprecise language in the regulation. It

proposed and later adopted changes to clarify (not :

change) that language to make its intended purpose more

clear. It did not endorse or permit “broad interpretations”

of the regulatory language.

CONCLUSION

For the reasons set forth above, the Petition for Cer-

tiorari should be granted.

Respectfully submitted,

7 Jute K. Bott

TimotHy E. MILLER

ManrTIN, BISCHOFF, TEMPLETON,

LANGSLET & HOFFMAN

3100 First Interstate Tower

Portland, OR 97201-5667

(503) 224-3113

Counsel for Petitioners

App. 1

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

John P. HENDERSON

and Henderson Aviation Co., Inc.,

Petitioners,

DEPARTMENT OF AGRICULTURE,

Bruce Andrews, Director,

Respondent.

(603-714-NR021-91; CA A76943)

Judicial Review from Department of Agricuiture.

Argued and submitted September 27, 1993.

Timothy E. Miller argued the cause for petitioners.

With him on the brief were Laura Van Harlingen Potter

and Martin, Bischoff, Templeton, Langslet & Hoffman.

Richard D. Wasserman, Assistant Attorney General,

argued the cause for respondent. With him on the brief

were Theodore R. Kulongoski, Attorney General, and

Virginia L. Linder, Solicitor General.

Before Deits, Presiding Judge, and Riggs and Hase-

lton,* Judges.

DEITS, P. J.

Affirmed.

DEITS, P. J.

* Haselton, J., vice Durham, J.

App. 2

Petitioners seek review of a final order of the Oregon

Department of Agriculture (ODA) imposing civil penal-

ties for four violations of the State Pesticide Control Act.

ORS chapter 634. We affirm.

Petitioners are a licensed pesticide applicator and his

employer, a licensed pesticide operator.! In 1991, the

ODA issued to each petitioner a Notice of Imposition of

Civil Penalty based on four aerial applications of

pesticide. OAR 603-57- 510(5). A contested case hearing

was conducted at petitioners’ request, ORS 634.905(2), for

which the four violations against each petitioner were

consolidated. The facts as found by the director of the

ODA are summarized here and are not in dispute.

On April 18, 1990, petitioners applied the pesticide

Thiodan by aerial spray to a Christmas tree farm, located

near the Alpine Elementary School playground. During

the application, approximately 85 children and two

teacher’s aides were on the school playground. In

response to a complaint from one of the aides regarding

the spraying, an ODA pesticide investigator went to the

school the following day and took a swab sample from

the swingset and a composite sample of grass cuttings

from the playground. The samples tested positive for

endosulfan, the active ingredient in Thiodan.

1 A pesticide applicator is one who sprays or applies

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 pesticide. ORS 634.006(9). A

pesticide operator is one who “owns or operates a business

engaged in the application of pesticides upon the land or prop-

erty of another.” ORS 634.006(13).

App. 3

On June 29, 1990, petitioners aerially applied the

pesticide Tilt to a grass field owned by Heitzman. Before

the application, the pesticide was mixed in 7.5 gallons of

water per acre. The Tilt label requires that, for aerial

application, the pesticide be mixed in a minimum of 10

gallons of water per acre.

On May 15, 1991, petitioners applied the pesticide

Bravo by aerial spray to a grass seed field adjacent to the

Laird residence. In response to Laird’s complaint that the

spray landed on his lawn, two ODA pesticide investiga-

tors took a sample of grass cuttings and dug a soil sample

from his backyard. The grass sample tested positive for

the active ingredient in Bravo.

On July 1, 1991, petitioners applied the pesticide

Lorsban to a Christmas tree farm adjacent to Parker’s

property and in the vicinity of Berg’s property. Parker,

who heard the helicopter, but could not see it because of

haze, keeps cattle and dogs on his property. Berg, who

observed the application of the pesticide, has an organic

strawberry field on his property. In response to Berg’s

complaint, an ODA investigator took samples from his

property on the day of the application and took a grass

sample from Parker’s property a few days later. The

samples from Berg showed no detectable amount of the

active ingredient in Lorsban, but the Parker sample tested

positive. The Thiodan, Bravo and Lorsban labels all

stated: “Do not apply this product in such a manner as to

directly or through drift expose workers or other per-

sons.”

App. 4

For each application, the director concluded that

petitioners applied pesticides inconsistent with the direc-

tions on the pesticide labels in violation of ORS

634.372(2). The director then applied the ODA’s penalty

formula, OAR 603-57-500 to OAR 603-57-530, and

imposed a civil penalty of $4,310 against each petitioner.

ORS 634.900; ORS 634.915.

Petitioners first assign as error the director’s conclu-

sion that ORS 634.372(2) does not violate Article I, section

21 of the Oregon Constitution.2 That statute provides:

“No person shall:

a+ + *

“(2) As a pesticide applicator or operator,

intentionally or willfully apply or use a worth-

less pesticide or any pesticide inconsistent with

its labeling, or as a pesticide consultant or

dealer, recommend or distribute such

pesticides.”

Petitioners contend that because the legislature gives to

pesticide manufacturers “the right to decide what goes on

the label,” the statute impermissibly delegates legislative

authority to private entities. See Van Winkle v. Fred Meyer,

Inc., 151 Or 455, 462, 49 P2d 1140 (1935).

We disagree. The statute does not, as petitioners sug-

gest, blindly incorporate into law whatever a pesticide

manufacturer chooses to put on its label. Federal and

2 Article I, section 21 provides, in pertinent part:

“[N]or shall any law be passed, the taking effect of which shall

be made to depend upon any authority, except as provided in

this Constitution[.]”

App. 5

state laws require that, with limited exceptions, all

pesticides must be registered with the Environmental

Protection Agency (EPA) and the ODA, respectively. 7

USC § 136a(a); ORS 634.016(1). Under federal law, a

pesticide will not be registered until the administrator

has approved the label. 7 USC § 136a(c)(5)(B), (6); 40 CFR

§ 156.10(a)(6)(i). Similarly, in reviewing a registration

application that must include the proposed label, the

ODA may restrict or limit the use in Oregon of any

pesticide. ORS 634.016(4)(d), (6)(a). For a label to be

approved and a pesticide to be registered, the manufac-

turer must follow the specific labeling requirements

imposed by a comprehensive federal regulatory scheme?

3 There are several labeling regulations that pertain to the

use of a pesticide, the aspect of the labels at issue here. Under

the category of warnings and precautionary statements, 40 CFR

§ 156.10(h)(2)(i)(A) provides:

“Where a hazard exists to humans or domestic ani-

mals, precautionary statements are required indicating the

particular hazard, the route(s) of exposure and the precau-

tions to be taken to avoid accident, injury or damage. The

precautionary paragraph shall be immediately preceded

by the appropriate hazard word.”

Under the regulations specifically governing the directions for

use, 40 CFR § 156.10(i)(2)(x)(F) provides that the directions must

include “[a]ny limitations or restrictions on use required to

prevent unreasonable adverse effects,” including “pertinent

information which the Administrator determines to be neces-

sary for the protection of man and the environment.” The direc-

tions must also include “[t]he method of application, including

instructions for dilution, if required.” 40 CFR § 156.10(i)(2)(vi).

For each of the above provisions, the administrator of EPA

must determine if the label provided by the manufacturer satis-

fies the appropriate standard. For other federal labeling require-

ments, however, the regulations specify the exact language that

the manufacturer must use. For instance, 40 CFR

App. 6

and, to a lesser extent, state law.4 Thus, even assuming

that pesticide labels written by manufacturers are given

the effect of law, we do not believe that the statute has

left “wholly to persons outside of the legislature the

power to determine whether there shall be a law at all

and, if there is to be a law, what the terms of that law

shall be.” LaForge v. Ellis, 175 Or 545, 549, 154 P2d 844

(1945) (holding statute invalid as violative of Article I,

section 21): see also Van Winkle v. Fred Meyer, Inc., supra,

151 Or at 461.

Petitioners also argue that the director erred in fail-

ing to hold that ORS 634.372(2) and the labels that it

incorporates are unconstitutionally vague. That argument

is inapposite, however, because the vagueness analysis

applies only to penal, not civil, laws. Megdal v. Board of

Dental Examiners, 288 Or 293, 605 P2d 273 (1980).

Petitioners next assign error to the director’s inter-

pretation of the term “expose” as used on the pesticide

§ 156.10(i)(2)(ii) provides that the directions for use must

include the statement, “It is a violation of Federal law to use this

product in a manner inconsistent with its labeling.”

4 The Federal Insecticide, Fungacide [sic] and Rodenticide

Act (FIFRA), 7 USC §§ 136-136y, and its implementing regula-

tions control the use and application of pesticides, but the states

retain some regulatory authority. 7 USC § 136y(a). For purposes

of uniformity, a “State shall not impose or continue in effect any

requirements for labeling or packaging in addition to or differ-

ent from those required under this subchapter.” 7 USC

§ 136v(b). As a supplement to the federal pesticide labeling

requirements, ORS 634.026(1)(e) requires that every pesticide

label include “[a]dequate and necessary directions for its proper

and intended use.”

App. 7

labels. In evaluating whether petitioners violated ORS

634.272(2) by applying pesticides in a manner that

“exposed” workers or other persons, the director defined

the label term “expose” to mean “creates a situation

where a person may come into contact with the

pesticide.” Petitioners’ sole challenge to that definition is

based on their argument that the EPA defines expose as

“actual contact” and that the director is bound by that

definition under the federal statute requiring uniformity

of pesticide labels. 7 USC § 136v(b). Petitioners concede

that the term “expose” is not defined in the federal stat-

ute or regulations; however, they make their argument

relying on a statement made in a commentary accom-

panying a proposed amendment to a worker protection

regulation. They argue that even though the comment

was made regarding a worker protection regulation, it is

applicable here because the language used on the labels

most likely derived from that regulation.5 Petitioners also

claim that, in amending the worker protection regulation,

the EPA clarified it by substituting the term “contact” for

the “less precise term ‘expose.’ ” 53 Fed Reg 25974, 25988

(1992). Therefore, they argue, the EPA intended those

° Before it was amended, the worker protection regulation

at issue, 40 CFR § 170.3(a), provided, in part:

“No owner or lessee shall permit the application of a

pesticide in such a manner as to directly or through drift

expose workers or other persons except those knowingly

involved in the application.”

erning worker protection from agricultural pesticides. 53 Fed

Reg 25970 (1988). According to the EPA,

“[t]he wording of certain requirements in the present Part

170 [governing worker protection] leaves room for broad

App. 8

terms to be equivalent. Petitioners then conclude that

when the EPA approved the labels at issue here, it inter-

preted “expose” to mean “contact” and that the director

is bound by that interpretation.

We are not persuaded by any of petitioners’ argu-

ments on this point. First, we do not agree that the

proposed amendment and commentary to the worker

protection regulation constitute “the EPA’s express and

unambiguous interpretation” of the term “expose.”

Rather than reading the EPA’s commentary to mean, as

petitioners suggest, that contact is a more precise way of

saying expose, we read the commentary to mean that

contact is a more precise term than expose. Thus, regard-

less of what the EPA may have “always” intended, the

director’s definition of “expose” is consistent with the

EPA’s commentary, which recognized that “expose” is

subject to broad interpretation. Further, even if the EPA

had intended “contact” when it said “expose,” it did so in

interpretation due to lack of specificity. Under these cir-

cumstances, enforcement is difficult for the Agency and

potentially unfair to those with Part 170 duties.” 53 Fed

Reg 25974.

In reference to what was then 40 CFR § 170.3, application

restrictions, the EPA proposed several changes, the last of which

provided:

“The term ‘contact’ has been substituted for the less pre-

cise term ‘expose.’ ” 53 Fed Reg 25988.

The regulation governing application restrictions for purposes

of worker protection now reads:

“The handler employer and the handler shall assure that

no pesticide is applied so as to contact, either directly or

through drift, any worker or other person * * * .” 40 CFR

§ 170.210(a).

App. 9

respect to the application of a worker protection regula-

tion, not in the context of labeling requirements. As peti-

tioners readily admit, the EPA did not require the exact

language of the worker protection regulation to appear

on pesticide labels.?7 Consequently, we do not see how the

director’s failure to follow the EPA’s “interpretation” of

“expose” in the context of worker protection would vio-

late section 136v(b)’s prohibition against imposing a label-

ing requirement “in addition to or different from those

required” under FIFRA.

In their fourth assignment of error, petitioners argue

that the director’s interpretation of ORS 634.372(2) was

wrong as a matter of law. ORS 183.482(8)(a). Specifically,

petitioners take issue with the director’s interpretation of

the phrase “intentionally or willfully apply or

use * * * any pesticide inconsistent with its labeling.” The

director held:

“In the context of ORS 634.372(2), the term

‘intentionally’ means that a person intends to

make application of a pesticide (i.e., he does so

purposefully, and not accidently or inadver-

tently), but not that he also intends to make the

application contrary to the directions on the

7 The EPA’s regulations now impose a labeling requirement

specifically directed at worker protection. 40 CFR § 156.206(a)

provides, in part:

“Each product shall bear the statement: ‘Do not apply

this product in a way that will contact workers or other

persons, either directly or through drift. Only protected

handlers may be in the area during application.’ ”

App. 10

label. This interpretation includes negligent con-

duct, but is not limited to such conduct as ORS

634.372(4).”

ORS 634.372(4) provides that no person shall “[p]Jerform

pesticide application activities in a faulty, careless or

negligent manner.”

According to petitioners, subsection (2) of ORS

634.372 prohibits intentional misapplication of pesticides

and subsection (4) prohibits negligent misapplication of

pesticides. They argue that when the ODA elected to

prosecute an intentional misapplication instead of a neg-

ligent one, it was required to prove that petitioners inten-

tionally applied a pesticide inconsistent with its label.

Petitioners contend that the director’s interpretation of

subsection (2) renders subsection (4) meaningless because

it treats a “deliberate action resulting in a label violation

as an intentional violation of the terms of the label, merg-

ing the negligent and intentional viclations.”

In construing statutes, our task is to discern the

intent of the legislature, looking first to the text and

context of the provision at issue, PGE v. Bureau of Labor

and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993).

Whenever possible, we will construe provisions of a stat-

ute so as to give effect to each. ORS 174.010; PGE v. |

Bureau of Labor and Industries, supra, 317 Or at 611. :

Considering the words of the statute as well as its

context, we conclude that the director’s construction of

the statute is consistent with the legislature’s intent. In

ORS 634.012, the legislature states that the purpose of the

State Pesticide Control Act is to regulate in the public

interest, inter alia, the application and use of pesticides.

App. 11

The legislature recognized that although pesticides may

be necessary and valuable, they can cause injury to

health, property, wildlife or environment when applied

or used in an improper or careless manner. ORS 634.012.

In view of the extensive labeling requirements imposed

by federal law, prohibiting the use of a pesticide in a

manner inconsistent with its label advances the legisla-

ture’s policy of preventing injury. The prohibition pro-

vides an incentive to operators and applicators to read

the labels of the pesticides and thus decreases the risk of

injury from improper use. Construing the statute in the

manner urged by petitioners would not carry out that

purpose because it would condone negligent noncom-

pliance with label requirements. An operator or applica-

tor who does not read a label could completely avoid

Prosecution for the noncompliance, despite the potential

for injury.

In addition, contrary to petitioners’ assertions, the

director’s construction of ORS 634.372(2) preserves the

distinction between ORS 634.372(2) and ORS 634.372(4).

As discussed above, subsection (2) does not prohibit

intentional misapplications of pesticides; rather, it

requires strict compliance with all label specifications

whenever operators or applicators intentionally use or

apply pesticides. Whether an operator or applicator

intended to violate a label may be considered in assessing

a penalty, ORS 634.915(2)(e), but it is immaterial to the

determination of whether a violation has occurred.

Subsection (4), on the other hand, targets application

activities that are performed in a “faulty, careless or negli-

gent manner.” Although a pesticide applied in such a

manner might effectuate a labeling violation, not all label

App. 12

specifications are directed at the manner of application.

Consequently, a pesticide may be used inconsistent with

its label even though the manner of application is neither

faulty, careless nor negligent. For instance, a label speci-

fication concerning the storage and disposal of a pesticide

has effect regardless of whether the pesticide is ever

applied. Other specifications, such as those prohibiting

grazing dairy or meat animals in treated areas, are

directed at activities that occur after an application has

been completed. Under petitioners’ construction of sub-

section (2), however, applicators would not be commit-

ting a violation if they applied a pesticide properly but,

because they failed to read the entire label, did not com-

ply with the requirements concerning storage, disposal or

grazing. ORS 634.372(2) would not be violated because,

although the pesticide was used inconsistent with its

label, the inconsistent use was not intentional. ORS

634.372(4) would not be violated because the application

was not performed in a careless or negligent manner.

Petitioners’ construction thus produces a result that

defeats the legislature’s expressed purpose in regulating

the use and application of pesticides. The director did not

err in construing ORS 634.372(2).

In their next assignment of error, petitioners argue

that the director erred in refusing to dismiss the three

label violations alleging drift of pesticides. Petitioners

argue that the ODA did not establish by a preponderance

of the evidence that drift was the mechanism of transport

for any of the pesticides from the targeted sites to the

neighboring properties. Specifically, petitioners argue

App. 13

that the positive samples offered by the ODA were insuf-

ficient in number to establish drift. After reviewing the

record, we conclude that substantial evidence supports

the findings underlying the director’s inference that the

pesticides reach the neighboring properties through drift.

ORS 183.482(8)(c).

Contrary to petitioners’ assertions, the director’s

comment that petitioners offered no evidence of another

means of transport did not shift to them the burden of

proof on the issue. The absence of any evidence to sug-

gest that the pesticides moved by means other than drift

supports the reasonableness of the inference that the

pesticides did move by drift. City of Roseberg v. Roseberg

City Firefighters, 292 Or 266, 271-72, 639 P2d 90 (1981).

Had petitioners offered evidence of another means of

transport, that evidence might have cast doubt on the

reasonableness of the inference, even if it was insufficient

to support a finding as to that other means.

Petitioners next argue that because the ODA failed to

prescribe a reasonable time for them to eliminate the

violations, as required by ORS 634.900(2), the violations

should have been dismissed. We disagree. ORS 634.900

provides:

“(1) In addition to any other liability or

penalty provided by law, the Director of Agri-

culture may impose a civil penalty on a person

8 The director defined drift as “a movement of particles of

pesticide through the air at the time of application.” That defini-

tion is not challenged here, nor do petitioners challenge the

historical facts underlying the director’s inference that the

pesticides moved by drift.

App. 14

for violation of any of the provisions of this

chapter relating to pesticide application, sale or

labeling. The civil penalty for a first violation

shall be a fine of not more than $1,000. Upon a

second violation, the department may impose a

fine of not more than $2,000.

“(2) A civil penalty may not be imposed

under this section for violations other than those

involving pesticide applications, sale or labeling

violation under this chapter. The director in

every case shall prescribe a reasonable time for

elimination of a violation:

“(a) Not to exceed 30 days after first notice

of a violation; or

“(b) In cases where the violation requires

more than 30 days to correct, such time as is

specified in a plan of correction found accept-

able by the director.”

However, even if we assume that the requirement of

prescribing a reasonable time for elimination of a viola-

tion is applicable here and that the ODA’s failure to do so

here affected the director’s authority to impose civil pen-

alties, dismissal of the violations would be not be war-

ranted. Under OAR 603-57-500(6), a violation is the

commission of any prohibited act specified in ORS

634.372. Once it is established that a prohibited act has

been committed, the violator is subject to one or more

penalties.? Because the repercussions of having commit-

ted a violation extend beyond the imposition of a civil

9 Under ORS 634.992, all violations are unclassified misde-

meanors and are punishable by a fine or by imprisonment.

Under ORS 634.322(4), any violation may serve as a basis for the

ODA to revoke, suspend or refuse to issue or renew the viola-

tor’s license or certificate.

rT Neen nT TERE MEN nen menoerer am |

App. 15

penalty, the validity of the penalty as imposed has no

bearing on the fact of the underlying violation. Thus,

while the parties may debate whether the director prop-

erly imposed the civil penalty here, there is no question

that the alleged impropriety is not grounds for dismissing

the violations.1° The director did not err in denying peti-

tioners’ motion to dismiss the violations.

Petitioners’ final assignment of error does not merit

discussion.

Affirmed.

10 Because of our disposition of this issue, we need not

address whether, under ORS 634.900(2), the director’s authority

to impose a civil penalty is conditioned on his having prescribed

a reasonable time for the violator to eliminate the violation. Nor

do we need to address whether that “condition” applies in a

case such as this where the violation has already been commit-

ted and is not susceptible to “elimination.”

App. 16

BEFORE THE DIRECTOR

OF THE OREGON DEPARTMENT OF AGRICULTURE

In the Matter of the Imposition ) FINDINGS OF

of Civil Penalties for Violation ) FACT,

of ORS Chapter 634 by John P. ) CONCLUSIONS OF

Henderson and Henderson LAW, OPINION,

Aviation Co., Inc. RULINGS ON

OBJECTIONS AND

ORDER

eee eee”

INTRODUCTION

During July 1991, the Department of Agriculture

(Department) issued a Notice of Imposition of Civil Pen-

alty against John P. Henderson as a pesticide applicator

and against Henderson Aviation Co., Inc., the employer

of Mr. Henderson, as a pesticide operator. Each notice

alleged three violations based upon the same three aerial

applications of pesticide by Mr. Henderson.

During August 1991, the Department issued another

Notice of Imposition of Civil Penalty against Mr. Hender- |

son and against Henderson Aviation. Each notice alleged

a violation based upon the same aerial application of |

pesticide by Mr. Henderson.

On November 13, 1991, a prehearing conference was

held before John Burgess, who had contracted with the

Department to conduct the hearing and issue a proposed

order. On November 20, 1991, February 26 and 27, 1992, a

contested case hearing was held. By agreement, the four

alleged violations against Mr. Henderson and against

Henderson Aviation were consolidated at the hearing.

Jane Ard and Stephen E.A. Sanders, Assistant Attorneys

General, represented the Department. Timothy E. Miller,

App. 17

Attorney at Law, represented both John P. Henderson and

Henderson Aviation Co., Inc. (Hendersons). After the

hearing, the parties were given time to submit written

closing arguments and reply briefs. The Department and

the Hendersons submitted both written closing argu-

ments and reply briefs. Following review of the closing

arguments and reply briefs, Mr. Burgess issued a recom-

mended order to which exceptions were filed. Based

upon review of the recommended order and exceptions,

the Director now issues this Final Order.

RULINGS

Rulings were reserved on objections and on other

matters until the time of this order.

Affirmative Defenses

In their answers, the Hendersons alleged that the

notices were inadequate (“Notice fails to state a viola-

tion”). The notices are adequate. ORS 183.415.

The Hendersons also alleged that the violations are

barred by laches. The Hendersons presented no evidence

of prejudice caused by the lapse of time between the

aerial applications in question and the Department's issu-

ance of the notices. Therefore, there is no basis for the

defense.

The Hendersons’ allegation that the “calculation of

penalties is without basis in fact or law” is considered in

THE PENALTIES, infra.

App. 18

Objections

During the hearing, the parties made a number of

objections to the admissibility of testimony and docu-

ments, primarily on the basis of hearsay. The objections

are overruled. ORS 183.450(1). All testimony and docu-

ments are admitted. In particular, the reports of the

Department’s Laboratory Services Division are admissi-

ble. See, Law v. Kemp, 276 Or 581, 588-89, 556 P2d 109

(1976) (blood test report); Davis v. Georgia-Pacific, 251 Or

239, 248, 445 P2d 481 (1968) (report of extent of pollu-

tion). However, not all of the hearsay evidence is relied

upon in this order. See, Reguero v. TSPC, 312 Or 402,

418-22, 822 P2d 1171 (1991) (impact of admissible hear-

say).

Motions to Dismiss

During the hearing, the Hendersons made motions to

dismiss based upon the sufficiency of the evidence. The

motions are denied for the reasons in this order, infra.

Constitutional Issues

The Hendersons argue that ORS 634.372(2) is “an

unlawful delegation of legislative authority” under the

Oregon Constitution. (Memorandum of Law at 1.) They

claim that the statute relies “completely upon the discre-

tion of the pesticide manufacturer or other entities to

determine what shall be included on the labels” of

pesticides, and “thus, what shall be the law.” (Id. at 2.)

App. 19

By “other entities,” it is assumed that the Hendersons

are referring to the Environmental Protection Agency,

which has the regulatory authority to approve the lan-

guage on labels. 7 USC § 136a. In fact, the language of the

labels at issue here is substantially the same as the gen-

eral standard of pesticide application at 40 CFR 170.3(a):

“No owner or lessee shall permit the application

of a pesticide in such a manner as to directly or

through drift expose workers or other per-

Satie

The Hendersons rely on Hillman v. Wasco Co. PUD,

213 Or 264, 323 P2d 664 (1958), and similar cases. How- |

ever, Hillman and the other cases are inapposite. |

In the present case, the legislature defined the pro-

hibited act in ORS 634.372(2). The elements of the act are:

(1) a pesticide applicator or operator

(2) who intentionally

(3) applies a pesticide

(4) inconsistent with its labeling.

The legislature delegated to the Department the

authority to determine whether a person has committed

the act prohibited by ORS 634.372(2). The language of the

label is a fact which must be proven, as is whether the

person is a pesticide applicator, whether an application of

pesticide was made, and if so, whether made inten-

tionally and whether made inconsistently with the lan-

guage on the label. Delegation of factual inquiries to an

administrative agency is constitutional. See, e.g., Mult-

nomah County v. Laihn, 180 Or 528, 541-42, 178 P2d 159

(1947).

- bs

App. 20

Unlike Hillman and the other cases relied upon by the

Hendersons, the legislature did not delegate to the EPA

or pesticide manufacturers the formulation of the legal

standard to be used to determine whether there has been

a violation of the State Pesticide Control Act. The issue

here is not whether the Hendersons violated the terms of

the pesticide labels, but whether they have committed the

act prohibited by ORS 634.372(2).

The Hendersons also argue that ORS 634.372(2) is

unconstitutionally vague. Their argument is not persua-

sive. See, Anderson v. Paden, 284 Or 313, 587 P2d 59 (1978);

see also, the discussion of THE LABELS, infra.

ORS 634.900(2)

The Hendersons moved to dismiss all the alleged

violations on the ground that the Director of the Depart-

ment did not comply with ORS 634.900(2). The Hender-

sons contend that:

“*** the director did not give [them] notice of

an alleged violation and a reasonable time, or

any time, for elimination * * * of the four alleged

violations * * * .”

(Respondent’s Closing Argument 12.)

(1) Compliance

ORS 634.900(1) authorizes the Director to

“impose a civil penalty on a person for violation of any of

the provisions * * * relating to pesticide application, sale

or labeling.” ORS 634.900(2) provides that:

App. 21

“*** The director in every case shall prescribe a

reasonable time for elimination of a violation:

“(a) Not to exceed 30 days after first notice of

violation; or

“(b) In cases where the violation requires more

than 30 days to correct, such time as is specified

in a plan of correction found acceptable by the

director.”

The language, “a reasonable time for elimination of a

violation,” is not intended to be read literally. A “viola-

tion” occurs at the time of “commission of any prohibited

act specified under ORS 634.372.” OAR 603-57-500(6). The

legislature did not intend that a person should be given a

reasonable time to “eliminat[e]” the fact of a violation.

Rather, the legislature intended that a violator be given “a

reasonable time for elimination [of the cause or the effect]

of a violation.” For example, where the cause of the

violation is an improper or unsafe application practice,

the violator may be given an opportunity to show the

Department that he has changed that practice to an

appropriate one, or where the effect of the violation is

contamination of an area away from the treatment site,

the violator may be given an opportunity to clean up the

contamination. However, in the event a violation is the

result of improper application of a pesticide, as in the

present case, no time is reasonable to correct the applica-

tion after the fact; i.e., by the time the Director learned of

the violations, it was too late to undo the applications.

In the present case, the Department provided the

Hendersons with Notices of Imposition of Civil Penalty

App. 22

during July and August 1991. Former ORS 634.905(1).! In

the case of two alleged violations, the notice was pro-

vided slightly more than one year after the acts, and in

the case of the other two alleged violations, the notice

was provided within two months after the acts.

The notices stated that the penalties were “due and

payable immediately upon receipt” of the notices.

(Notices, { VI.) Former ORS 634.905(1). However, the

notices provided that the Hendersons had an opportunity

for a hearing on the alleged violations, and they

requested a hearing. Their request for a hearing sus-

pended the due date for payment of the penalties until

after entry of a final order. Moreover, in their answers

filed in response to the notices, the Hendersons not only

denied commission of the alleged violations, but alleged

that the “calculation of penalties is without basis in fact

or law and an abuse of discretion.” Their answers put in

issue at the hearing whether they were liable for any

penalties, and if so, the amounts of such penalties. The

hearing was held during November 1991 and February

1992.

Therefore, as a practical matter, the Hendersons had

more than three months from receipt of the notices until

the hearing “for elimination” of the causes or effects of

the alleged violations. No provision in ORS Chapter 634

or the Department’s rules prevented the Hendersons

from taking corrective action between receipt of the

notices and the hearing. Their liability and the amounts

1 The penalty procedure is now contained in ORS 183.090.

See, Or Laws 1991, ch 734, § 57.

App. 23

of the penalties, if any, would be determined based upon

the evidence at the hearing. And they knew or should

have known that based upon ORS 634.915(2)(f) and OAR

603-57-530(4)(f) their efforts to “correct” or “rectify” a

violation was a factor to be considered in the determina-

tion of a penalty.

The Hendersons’ complaint that “the director did not

give [them] notice of an alleged violation and a reason-

able time * * * for elimination” of the alleged violations

(Resp Cl Arg 12) disregards that they were afforded more

than three months from receipt of the notices until the

hearing to correct the alleged violations; i.e., 60 days

more than ordinarily is required by ORS 634.900(2).2 The

Hendersons had the opportunity they complain was

denied them. The fact that the Director did not expressly

State that they had the opportunity is immaterial. The

Hendersons’ motion is denied.

(2) Noncompliance

Even assuming the Director did not strictly com-

ply with ORS 634.900(2), noncompliance is not a ground

for dismissal of the alleged violations. The Hendersons’

motion is denied.

The Hendersons contend that “the legislature wanted

to give the pesticide applicators and operators a chance

? The Hendersons presented no evidence that the time

between the aerial applications and receipt of the notices pre-

vented corrective action, or that the time between receipt of the

notices and the hearing did not allow a reasonable time for

corrective action. ORS 183.450(2).

App. 24

to clean up their act before being subject to monetary

penalties.” (Resp Cl Arg 11.) The Hendersons apparently

consider that the legislature enacted ORS 634.900(2) for

the benefit of applicators and operators who violate the

Act. The primary reason for the statute is to benefit the

public interest, not violators. The statute is part of the

Act, the purpose of which is “to regulate in the public

interest the * * * application and use of pesticides” (ORS

634.012), and the penalty provisions are to be adminis-

tered in the public interest. See, e.g., ORS 634.910 (the

Director may remit or reduce a penalty only on terms and

conditions “proper and consistent with the public health

and safety”).

A benefit to violators may be found in the relation-

ship between ORS 634.900(2) and 634.915(2)(f), which

provides that the Director, in imposing a penalty, “shall

consider” the “violator’s cooperativeness and efforts to

correct the violation.” In other words, ORS 634.900(2)

provides violators with “a chance to clean up their act” so

as to provide the Director an opportunity to consider

remission or reduction of a penalty according to the

factor at ORS 634.915(2)(f).

The statute does not provide that the Director may

not impose a penalty where “a reasonable time for elim-

ination of a violation” is not given. And the legislature

knows how to express a condition precedent to an

agency’s authority to impose a penalty. See, e.g., ORS

468.126(1) (DEQ’s authority: “No civil penalty * * * shall

be imposed for a violation * * * until the [violator] has

received five days’ advance warning” and the oppor-

tunity to submit a response).

App. 25

Because the statute is for the benefit of the public

interest, because it can be reasonably interpreted as pro-

viding a violator with an opportunity to obtain remission

or reduction of a penalty, and because there is no express

provision which makes the opportunity to take corrective

action a prerequisite to a penalty, the Hendersons’ con-

tention is not persuasive.

Finally, the Hendersons suffered no prejudice. In the

notices, the Department calculated the penalties for

alleged Violation Nos. 1, 2, and 3 according to the factors

in its rule. OAR 603-57-530(4). In making the calculations,

the Department assigned to the factor designed to imple-

ment ORS 634.915(2)(f) (“violator’s cooperativeness and

efforts to correct the violation”) the value most favorable

to the Hendersons. In alleged Violation No. 4, the Depart-

ment assigned a different value to the factor because of

the Hendersons’ manner in assisting in the investigation

of the alleged violation, not because of their efforts to

take corrective action. The Hendersons presented no evi-

dence that the Director’s alleged noncompliance with

ORS 634.900(2) prevented them from taking corrective

action related to the alleged violations. ORS 183.450(2).

FINDINGS OF FACT

Henderson Aviation Co., Inc. is a pesticide operator

licensed by the Department. ORS 634.116. John P. Hen-

derson is a pesticide applicator licensed by the Depart-

ment (ORS 634.122), and an employee of Henderson

Aviation. In each of the four situations, Mr. Henderson

made the pesticide application by aerial spray from a

helicopter flown by him in the course of his employment

App. 26

with Henderson Aviation, and pursuant to an agreement

between Henderson Aviation and the owner of the prop-

erty sprayed.

In the four situations, Mr. Henderson applied the

following pesticides:

1. FMC Corporation Thiodan 50 WP, EPA Reg.

No. 279-1380, (Thiodan);

2. Ciba-Geigy Tilt Fungicide, EPA Reg. No.

100-617 (Tilt);

3. Fermenta Bravo 720 Fungicide, EPA Reg.

No. 50534-188 (Bravo);

4. DowElanco Lorsban 4E, EPA Reg. No.

62719-23 (Lorsban).

The labels of each of the pesticides were approved by

the Environmental Protection Agency (7 USC § 136a), and

registered with the Department. (ORS 634.016). The labels

of Thiodan, Bravo, and Lorsban contain similar warnings

and directions:

Thiodan: “ * * * Do not apply or allow to drift

to areas occupied by unprotected humans or

beneficial animals. * * * Do not apply this prod-

uct in such a manner as to directly or through

drift expose workers or other persons. * * * .”

(Ex 1-6.)

Bravo: “ * * * DO NOT apply this product in

such a manner as to directly, or through drift,

expose workers or other persons. * * * .”

(Ex 3-4.)

App. 27

a“

Lorsban: “ * * * Do not apply this product in

such a manner as to directly or through drift

expose workers or other persons. * * * .”

(Ex 4-12.)

“Drift” may result from application of the above

pesticides, especially application by aerial spray. In mak-

ing each of the aerial applications, Mr. Henderson left a

buffer zone on the treatment site as a precaution against

drift, but the width of each buffer zone is not clear. In his

testimony, Mr. Henderson estimated the width of each

buffer zone, but his estimate is not considered accurate.

He was recalling an estimate made at the time of flying

the helicopter and when he was unaware that he would

have to later recall that estimate at a hearing.

The label of Tilt requires for aerial application to

grasses grown for seed in Oregon that the applicator

“Mix 4-8 fl. oz. of Tilt (maximum 4. fl. oz. on

bluegrass) * * * in a minimum of 10 gals. of

water/A * ** .”

(Ex 2-7.)

Alpine Elementary School

On April 18, 1990, from 9:50 a.m. to 10:15 a.m., Mr.

Henderson applied Thiodan to the Freeman Christmas

tree farm. There is a section of the farm which is due west

of the Alpine Elementary School. The eastern boundary

line of this section is about 150 feet from the western

fence of the school playground. There is about a 120-foot

wide strip along the eastern boundary line of this section

which contains no Christmas trees.

App. 28

In making the application of Thiodan to this section,

Mr. Henderson left a buffer zone of trees along the east-

ern boundary of the farm. At the edge of the buffer zone

along the eastern boundary, he turned on the aerial spray,

and flew west. He then turned, and flew east. When he

reached the edge of the buffer zone, he shut off the spray.

He repeated this pattern until he completed the applica-

tion to this section. During the application, students and

staff were in school and on the school playground. A

short time after the application, a representative of the

school telephoned the Pesticide Analytical Response Cen-

ter (PARC), and made a complaint about the application.

PARC then notified the Department.

On April 19, the next day, about 11:00 a.m., Dale

Mitchell, a Department pesticide investigator, went to the

Alpine Elementary School. About 1:00 p.m., Mr. Mitchell

took three samples at the school. He first took a control

sample from inside the building. He next swabbed a

small area of the surface of a upright support of a

swingset about 15 feet inside of the west fence of the

playground. Finally, he took a composite sample of grass

cuttings from six points also about 15 feet inside the west

fence of the playground.

Mr. Mitchell identified the samples and placed them

in sterile containers according to the Department's stan-

dard practice. The samples were then submitted to the

Department’s Laboratory Services Division for analysis.

The results of the laboratory analysis show: no Thiodan

was found in the control sample; a small amount of the

active ingredient in Thiodan (0.0036 microgram/cm?) was

found in the sample taken from the swingset; and a small

App. 29

amount of the active ingredient in Thiodan (0.16 ppm)

was found in the composite sample of grass.

Laird Property

On May 15, 1991, about 5:30-6:30 a.m., Mr. Hender-

son applied Bravo to a grass seed field. The property of

Paul A. Laird and his wife, on which their home is

located, is adjacent to the grass seed field.

In making his application, Mr. Henderson left a

buffer zone along the north, east and south sides of the

grass field. He first flew east along the northern bound-

ary of the grass field, and sprayed south of that bound-

ary. He then turned, and flew south along the eastern

boundary of the grass field, and sprayed west of that

boundary. Next, he flew southwest along the southeast

boundary of the grass field, and sprayed west of that

boundary. Then, he flew west along the southern bound-

ary of the grass field, and sprayed north of that bound-

ary. After he finished spraying along the sides of the

grass field, he completed the application by flying an

east-west pattern during which he turned on and shut off

the spray about when he reached the edge of the buffer

zone.

A short time after the application, Mr. Laird tele-

phoned the Department, and made a complaint about the

application. On May 16, the next day, John Schmitz and

Kent Smith, Department pesticide investigators, went to

the Laird property. They took two samples in an area of

the Laird backyard near the western boundary of the

App. 30

property. They first took a sample of grass cuttings, and

then dug a soil sample.

The samples were identified, and placed in sterile

containers according to the Department's standard prac-

tice. The samples were then submitted to the Depart-

ment’s Laboratory Services Division for analysis. The

results of the laboratory analysis show that a small

amount of the active ingredient in Bravo (0.37 ppm) was

found in the grass sample, but no detectable amount was

found in the soil sample.

Parker Property

On July 1, 1991, about 5:16 a.m.-8:30 a.m., Mr. Hen-

derson applied Lorsban to trees on a Christmas tree farm.

Jerry Parker’s home is on property adjacent to the

Christmas tree farm. Mr. Parker’s property consists of

about 27 acres, and is immediately south of a line of fir

trees which grows along the southern boundary of the

Christmas tree farm. Mr. Parker maintains cattle and dogs

on his property. In addition, a strawberry field owned by

Carl Berg is in the vicinity of the Christmas tree farm. Mr.

Berg observed the application of the pesticide. Mr. Parker

heard the helicopter, but was unable to see it because of

haze.

In making his application, Mr. Henderson left a

buffer zone as he flew along the southern boundary of

the Christmas tree farm. The line of fir trees which grows

along that boundary is about 20-30 feet tall. There is an

open space in that line of trees.

App. 31

About 9:30 a.m. that day, Mr. Berg telephoned the

Department and made a complaint about the application.

About 11:15 a.m. that same day, Janet Fults, a Department

pesticide investigator, went to the Berg property where

she took samples. A few days later, Ms. Fults went to the

Parker property where she took a sample of grass at a

point near the north end of the dog kennel, which is

about 400 feet south of the fir trees which grow along the

southern boundary of the Christmas tree farm. She next

dug a soil sample at a point in the open space in the line

of fir trees about 400 feet directly north of the sample

taken on the Parker property.

The samples were identified, and placed in sterile

containers according to the Department’s standard prac-

tice. The samples were then submitted to the Depart-

ment’s Laboratory Services Division for analysis. The

results of the laboratory analysis of the samples taken

from the Berg property show no detectable amount of the

active ingredient in Lorsban. The result of the laboratory

analysis of the grass sample taken from the Parker prop-

erty shows the presence of a small amount of the active

ingredient in Lorsban (0.13 ppm). The result of the labo-

ratory analysis of the soil sample taken from among the

fir trees on the Christmas tree farm shows the presence of

a small amount of the active ingredient in Lorsban (1.03

ppm).

Heitzman Property

On June 29, 1990, Mr. Henderson applied Tilt to a

grass seed field owned by Mr. Heitzman. The pesticide

was mixed by an employee of Henderson Aviation in 7.5

App. 32

gallons of water per acre, not in a minimum of 10 gallons

of water per acre as required by the pesticide label for

aerial application. The label was on the pesticide con-

tainer at the time the pesticide was mixed for application.

In order to become licensed as a pesticide applicator,

the Department requires a person to pass written exam-

inations, which include the “[c]omprehension of labeling

format, labeling terminology, and the labeling warnings

and instructions.” OAR 603-57-120(1)(a).

ULTIMATE FINDINGS OF FACT, REASONING

AND CONCLUSIONS OF LAW?

THE STATUTE

In the State Pesticide Control Act, the legislature

delegated to the Department the responsibility “to regu-

late in the public interest the * * * application and of

pesticides.” ORS 634.012. There is a need for regulation

because pesticides

“* * * may injure heaith, property, wildlife or

environment by being * * * applied or used in an

improper or careless manner. * * * .”

Id.

The Department’s regulatory authority includes the

power to “impose a civil penalty on a person” who

engages in conduct relating to pesticide application, sale

or labeling which is prohibited by the Act. ORS

3 To the extent that any ultimate finding of fact or conclu-

sion of law may be reasonably interpreted as a finding of fact,

such ultimate finding or conclusion is hereby included in the

findings of fact.

App. 33

634.900(1). The legislature listed certain prohibited acts in

ORS 634.372. The violations alleged here are based upon

ORS 634.372(2), which prohibits a person from

“** * intentionally or willfully apply[ing] or

us[ing] * * * any pesticide inconsistent with its

labeling * * * .”

Therefore, ORS 634.372(2) prohibits a person from inten-

tionally applying a pesticide in a manner not permitted

by or contrary to the directions on the label. The label

States directions and warnings regarding application of

the pesticide. (See, e.g., Exs 1-6, 3-4 and 4-12.) As previ-

ously discussed, the directions on a label are subject to

approval by the EPA and the Department before the

pesticide may be applied in Oregon. 7 USC § 136a; ORS

634.016(4)(d). The directions are intended to assist an

applicator in making a proper and safe application of the

pesticide.

From a regulatory point of view, compliance with the

directions should prevent the kinds of injuries which the

Department has the responsibility to protect against. The

prohibition in ORS 634.372(2) is recognition by the legis-

lature that the directions are a means of protection

against injury from application. That statute promotes

respect for the directions on a label. That statute does not

permit less than strict compliance with the directions:

noncompliance is not excused where no injury results or

only a small quantity of a pesticide is applied contrary to

the directions. Such exceptions would lessen the protec-

tion intended in ORS 634.372(2).

App. 34

The Hendersons contend (Resp Cl Arg 8-10) that the

term “intentionally” in ORS 634.372(2) means that a per-

son must intend to apply a pesticide contrary to the

directions on its label. Under the Hendersons’ interpreta-

tion, a person under certain circumstances could apply a

pesticide inconsistent with the directions, and not commit

an act prohibited by the statute. The Hendersons’ inter-

pretation would limit the effectiveness of ORS 634.372(2).

In the context of ORS 634.372(2), the term “inten-

tionally” means that a person intends to make application

of a pesticide (i.e, he does so purposefully, and not

accidentally or inadvertently), but not that he also

intends to make the application contrary to the directions

on the label. This interpretation includes negligent con-

duct, but not limited to such conduct as ORS 634.372(4).4

This interpretation affords the protection intended by the

legislature.

THE LABELS

Alleged violation No. 2 involves aerial application of

a pesticide to a grass seed field, and for such an applica-

tion the label directs the applicator to

“Mix 4-8 fl. oz. of Tilt (maximum 4 fl. oz. on

bluegrass) * * * in a minimum of 10 gals of

water/A * * * .”

(Ex 2-7.)

4 ORS 634.372(4), which prohibits “application activities in

a faulty, careless or negligent manner,” applies to more kinds of

conduct than an application contrary to the directions on a label.

See Res Cl Arg 8.

App. 35

The direction is clear, and there is no dispute over the

mixture required.

Alleged violations Nos. 1, 3, and 4, each involve

application of a different pesticide, but the labels of the

pesticides contain similar statements:

“* * * Do not apply this product in such a

manner as to directly or through drift expose

workers or other persons. * * * .”

(Ex 1-6; accord Exs 3-4 and 4-12.)

The statement was written as a direction to pesticide

applicators and operators to assist in application of the

pesticide. For EPA approval, the directions on a pesticide

label

“* * * must be stated in terms which can be

easily read and understood by the average per-

son likely to use or supervise the use of the

pesticide. *'*'* .”

40 CFR 156.10(i)(1)(i). The direction was not written to

identify legal prerequisites for determining whether a

person has correctly applied a pesticide, or to be sub-

jected to the same kind of technical analysis used in

interpretation of a statute. Such a technical analysis of the

statement could frustrate the protection intended by the

direction, as well as the protection intended by the legis-

lature in enacting ORS 634.372(2). The Hendersons’ anal-

ysis focuses on two words of the direction: “drift” and

“expose.”5

5 The words “drift” and “expose” are not defined in the

EPA regulations at 40 CFR 170.3(a).

» a -

ET St

App. 36

(1) Drift

The parties essentially agree on the meaning of the

word “drift” as used in the direction. “Drift” may be

defined as a movement of particles of pesticide through

the air at the time of application.

This meaning of drift provides assistance to pesticide

applicators and operators; that is, do not apply the

pesticide in a manner that allows movement of it which

“expose[s] workers and other persons.” This meaning is

also consistent with the legislature’s reliance upon the

directions on a pesticide label as a protection against

injury in ORS 634.372(2).

(2) Expose

The parties do not agree on the meaning of the word

“expose’ as used in the above direction.

The Cesartment understands that “expose” means

application of a pesticide that creates a situation where a

person may ccme into contact with the pesticide. (Mem-

orandum of Law 5.) Therefore, according to the Depart-

ment’s understanding, the presence of the pesticide in a

place off the treatment site as a result of drift “expose[s]”

a person in that place to the pesticide.

The Hendersons contend that whether or not a per-

son is “expose[d]” through drift depends upon the dose

of the pesticide which the person receives (i.e., the

amount of the pesticide that gets inside the body of the

person and can have an adverse effect). (Resp Ex 5 at 3).

Under the Hendersons’ understanding, an applicator

who applies a pesticide in a manner that allows the

App. 37

pesticide to drift off the treatment site onto nearby land

occupied by a person does not “expose” the person

regardless of the quantity of the pesticide which drifts

onto the land so long as the person fortuitously does not

absorb or ingest the pesticide, or does not receive a dose

which his body cannot tolerate. According to Hender-

sons, the direction informs an applicator not to apply the

pesticide so as to allow a quantity that will injure a

person to drift to an area occupied by the person, or

conversely directs an applicator to apply the pesticide to

allow to drift only so much of it that will not cause injury.

Because the quantity of pesticide that will injure a partic-

ular person under the circumstances would virtually

always be unknown, the Hendersons’ understanding of

“expose” provides little direction to applicators and oper-

ators before or during an application, and instead concen-

trates on what often may be the fortuitous results of an

application.

The direction is intended as a protection against

injury, and as such, an application of a pesticide may be

made contrary to the direction without resultant injury.

The direction is not intended as an authorization to allow

drift sc long as no injury results, or as a standard to be

used after an application of pesticide to determine

whether the application was safe. Because the word

“expose” is part of a direction related to application of a

pesticide, the meaning of “expose” must provide assis-

tance in making an application. The Department’s under-

standing of the meaning of “expose” provides such

assistance.

According to the Department's understanding, the

direction informs an applicator not to apply the pesticide

App. 38

in a manner that results in drift of any quantity to an area

where a person may come into contact with it, or put

another way, the direction informs an applicator not to

allow any drift of the pesticide to an area occupied by a

person.

The Department’s understanding is also consistent

with the ordinary meaning of “expose”: “to lay open a

person to something.” Webster’s Third New International

Dictionary, 802 (1976). In addition, this meaning furthers

the protection intended by the legislature in enacting

ORS 634.372(2).

The Hendersons’ understanding of “expose” includes

more than the ordinary meaning, and would frustrate the

direction as a means to prevent injury and the protection

intended by the legislature.

Therefore, the Department’s understanding of the

meaning of “expose” is the appropriate meaning.

THE VIOLATIONS

Heitzman Property (Violation No. 2)

The label of Tilt requires for aerial application to

grasses grown for seed in Oregon that the applicator mix

“4-8 fl. oz. * ** in a minimum of 10” gallons of water per

acre. (Ex 2-7.) The label was on the pesticide at the time

the Tilt was mixed for application. There is no dispute

that before Mr. Henderson made the aerial application of

Tilt to Mr. Heitzman’s grass seed field, the pesticide was

mixed by an employee of Henderson Aviation in only 7.5

gallons of water per acre, and that the mixture was con-

trary to the requirement on the label.

I 2.t Ws ‘a. a} Fw RS ~ “2 el i Tee. el Seg a ee +

BEE) IR TREN ADE TOD POA REL ete oe a OR ee on thy ps

App. 39

Mr. Henderson made the application in the course of

his employment with Henderson Aviation, and did so

“intentionally.” ORS 634.372(2). There is no evidence that

he made the application by mistake or inadvertence.

Based upon the above facts, the Hendersons “inten-

tionally * * * appllied a] pesticide inconsistent with its

labeling.” ORS 634.372(2).

Alpine Elementary School (Violation No. 1)

The directions on the label of Thiodan state it should

not be applied in a manner that “through drift expose[s]

workers or other persons.” (Ex 1-6.) The direction means

that an applicator should not apply Thiodan in such a

manner that at the time of application there is movement

of the pesticide to an area which is occupied by persons.

On April 18, 1990, from 9:50 a.m. to 10:15 a.m., Mr.

Henderson applied Thiodan to the Freeman Christmas

tree farm in the course of his employment with Hender-

son Aviation. The playground of the Alpine Elementary

School begins about 150 feet east of a section of the tree

farm sprayed by Mr. Henderson.

About 1:00 p.m. the next day, Mr. Michell, a Depart-

ment pesticide investigator, went to the playground in

response to a complaint about the spraying, and took a

swab from the swingset and a composite sample of grass

cuttings from the playground of the school. The Depart-

ment’s laboratory analysis of the samples indicated the

presence of a small amount of the active ingredient in

Thiodan in the samples.

App. 40

There is no evidence that the pesticide moved from

the treatment site to the playground by any means other

than drift. The Hendersons acknowledge that the Depart-

ment does not have to “disprove every mechanism of

transport other than drift to support a violation” of ORS

634.372(2). (Resp Cl Arg 5).

Based upon the facts, it is reasonable to infer that on

April 18, 1990, Thiodan moved from the treatment site to

the playground through “drift,” as that word is used in

the above direction on the label. The Department was not

required to prove drift with the certainty that Dr. Witt,

the Hendersons’ consultant, requires for a scientific

determination; therefore, the Department was not

required to take the number of samples necessary to

establish the pattern of drift which Dr. Witt requires.

Although the samples taken did not satisfy Dr. Witt, he

acknowledged that the samples taken did not show “that

there was not drift.” (Emphasis added.) Dept Cl Arg 5.

Because the school premises were occupied by stu-

dents and staff on April 18, the presence of Thiodan on

the playground “expos[ed]” them to the pesticide on that

date, as that word is used in the above direction.

Because the presence of Thiodan “expose[d]” the stu-

dents and staff on April 18, there was no need for the

Department to also take tissue and clothing samples from

them to prove actual contact with the pesticide as the

Hendersons argue. (Resp Cl Arg 3.) As discussed above,

proof of actual injury or the likelihood of injury is not

required for “expos[ure]” as the Hendersons contend. (Id.

at 3-4.)

App. 41

Therefore, the Hendersons applied Thiodan inconsis-

tent with the directions on the pesticide label. ORS

634.372(2).

Laird Property (Violation No. 3)

The direction on the Bravo label was the same as on

the Thiodan label, and has the same meaning as dis-

cussed in Violation No. 1.

On May 15, 1991, Mr. Henderson applied Bravo to

the grass seed field adjacent to the residence of Mr. and

Mrs. Laird. Mr. Henderson made the application in the

course of his employment with Henderson Aviation. On

May 16, the next day, the Department pesticide investiga-

tors went to the Laird property in response to a complaint

by Mr. Laird about the application. In the Laird backyard,

the investigators took a sample of grass cuttings. The

Department’s laboratory analysis of the sample indicated

the presence of the active ingredient in Bravo in the grass

cuttings.

There is no evidence that the pesticide moved from

the treatment site to the Laird property by any means

other than drift.

Based upon the above facts, it is reasonable to infer

that Bravo moved from the treatment site to the Laird

property through “drift” on May 15, 1991, as that word is

used in the direction in question on the label. Because the

Laird property was occupied by the Lairds on May 15, the

presence of Bravo in their backyard “expose[d]” them to

the pesticide on that date, as that word is used in the

direction on the label.

App. 42

The Hendersons make similar contentions regarding

lack of proof and the meanings of “drift” and “expose,”

which were made and rejected in Violation No. 1. The

reasons for rejection of their contentions will not be

repeated. See reasoning regarding Violation No. 1.

Therefore, the Hendersons applied Bravo inconsis-

tent with the direction on the label. ORS 634.372(2).

Parker Property (Violation No. 4)

The direction on the Lorsban label was the same as

on the Thiodan and Bravo labels, and has the same mean-

ing as discussed in Violation Nos. 1 and 3.

On July 1, 1991, Mr. Henderson applied Lorsban to a

Christmas tree farm adjacent to the property on which

Mr. Parker’s home is located. Mr. Henderson made the

application in the course of his employment with Hender-

son Aviation. Within a few days after the application, a

Department pesticide investigator went to the Parker

property in response to a complaint about the application

by a neighbor of Mr. Parker. The investigator took a

sample of grass near the dog kennel on Mr. Parker’s

property, and dug a soil sample in an open space along

the southern boundary of the Christmas tree farm about

400 feet directly north of the point where the grass sam-

ple was taken. The Department's laboratory analysis indi-

cated the presence of the active ingredient in Lorsban in

the samples.

There is no evidence that the pesticide moved to the

open space along the southern boundary of the Christmas

_ }

bit a LO ae AE ~ hen a aa Wa eae

i 7 bi 5

App. 43

tree farm and from the treatment site to the Parker prop-

erty by any means other than drift.

Based upon the above facts, it is reasonable to infer

that Lorsban moved from the treatment site to the Parker

property through “drift” on July 1, 1991, as that word is

used in the direction in question on the label. Because Mr.

Parker’s house is on the property and the positive sample

was taken near the dog kennel, which is an area undoubt-

edly frequented by Mr. Parker, the presence of Lorsban

on the Parker property “expose[d]” Mr. Parker to the

pesticide, as that word is used in the direction on the

label.

Again, the Hendersons made contentions similar to

those made regarding Violations Nos. 1 and 3. Their

contentions are rejected for the same reasons. See reason-

ing regarding Violation No. 1.

Therefore, the Hendersons applied Lorsban inconsis-

tent with the directions on the label. ORS 634.372(2).

THE PENALTIES

The Department’s rules (OAR 603-57-500 through

603-57-530) provide a method for calculation of the

amount of a fine for a violation of the Act. ORS

634.900(1). The method includes a formula:

Amount.

Pe aie ee Se

App. 44

the factors in ORS 634-915(2) which the Director is to

consider in imposing a penalty. The rules assign several

values to each letter (e.g., depending upon the violator’s

conduct).

In the Notices of Imposition of Civil Penalty, the

Department provided an explanation of application of the

formula to each violation. In their answers filed in

response to the notices, the Hendersons alleged an affir-

mative defense: “The calculation of penalties is without

basis in fact or law and an abuse of discretion.” The

Hendersons had the burden of presenting evidence to

support their affirmative defense. ORS 183.450(2). The

Hendersons did not dispute the values assigned in the

notices to: the “B” factor in Violations Nos. 2, 3 and 4; the

“P” factor in all violations; and the “C” factors in Viola-

tions Nos. 1, 2 and 3.

(1) “B” Factor

The “B” factor is the base fine for a violation, and is

determined from a “matrix” set out in the rules. OAR

603-57-530(4)(b). The matrix is based upon the magnitude

and the gravity of the violation. OAR 603-57-525. The

Hendersons contend that the Department's determination

of the gravity of Violation No. 1 is “arbitrary, capricious

and not supported by the facts.” (Resp Cl Arg 13.)

6 The Department has done more than “adopt by rule a

schedule establishing the amount of civil penalty that may be

imposed by a particular violation.” ORS 634.915(1). The Depart-

ment has adopted the above formula to assist the Director in his

consideration of the factors listed in ORS 634.915(2).

App. 45

In the notices to the Hendersons, the Department

explained that the “gravity was determined to be high

because there was evidence of surface contamination”

away from the treatment site (the playground of the

Alpine Elementary School). (Notices, II.) According to the

matrix, the existence of any one of several factors “shall

constitute the gravity being considered to be of high

level.” OAR 603-57-525(3). One of the factors is “evidence

of surface * * * contamination.” Id. at (a)(B)(ii).

The Hendersons argue (Resp Cl Arg 13) that the

amount of pesticide found was insufficient to “contami-

nate” the playground. They state that “ ‘contaminate’

means to render something unusable or unfit for its regu-

lar use.” (Id.)

The Hendersons disregard that the Department is the

ultimate authority on the intended meaning of its rules.

The Department intends “contamination” to mean evi-

dence of presence of the pesticide, regardless of the

amount, on the ground. Moreover, the fact that the

Department decided to treat any contamination of the

ground, regardless of the extent of the contamination, as

a “high” level of gravity, is not an abuse of discretion. See

generally, Mary's Fine Foods, Inc. v. OLCC, 30 Or App 435,

439-440, 567 P2d 146, rev den 280 Or 683 (1977).

(2) “N” Factor

The “N” factor is the number of times within three

prior years of and including the “current violative act”

that the Department has “determined” that the person

has committed “that violative act.” OAR 603-57-530(4)(a).

A “violative act” is a “prohibited act [relating to pesticide

App. 46

application, sale or labeling] under ORS 634.372” (OAR

603-57-500(6)); that is, a “violation” for civil penalty pur-

poses under ORS 634.915(2)(b):

“Any prior violations of statutes, rules or orders

pertaining to pesticide application, sale or label-

ing.”

In other words, the “N” factor is the number of times

within three prior years of the current violation, and

including the current violation, that the Department has

determined that a person has committed the same viola-

tion as the current one. The

(a) 1988 violation

On October 11, 1989, the Department notified the

Hendersons by letters of the results of an investigation of

an aerial application of a pesticide made by them to a tree

farm on May 17, 1988. (Dept Exs 5-1, 5-2.) The letters

indicated that the application was made inconsistent with

the label of the pesticide. ORS 634.372(2). The letters

stated that they were “intended as a formal warning”:

“*** Pertaining to the pesticide product appli-

cation investigated a violation of ORS 634 has

been identified as detailed. ** * Further viola-

tions of ORS 634 may be subject to departmental

actions.”

Id.

The Hendersons argue that in the above letters that

the Department made no “official ‘finding’ of a viola-

tion.” (Resp Cl Arg 14.) However, the above letters

explain the Department’s investigation of the application,

and its conclusion that the application was a “violation.”

App. 47

The letters notified the Hendersons that the Department

had made a determination that they had committed a

violation. See OAR 603-57-530(4)(a).

The Hendersons point out that the letters stated that

they were a “warning” and that “[nJo further action * * *

is presently anticipated.” (Resp Cl Arg 13.) However, the

“warning” was that the Department had determined that

they had committed a violation and that “[fJurther viola-

tions” may be subject to “departmental actions.” (Dept

Exs 5-1, 5-2.) The letters did not indicate that the Depart-

ment had concluded its investigation without finding a

violation.

Finally, the Hendersons incorrectly contend that

there was “no right to contest or appeal the warning.”

(Resp Cl Arg 13.) See, ORS 183.310(5), ORS 183.484. Fur-

ther, Hendersons did not present any evidence at this

hearing that this “prior violation” did not occur.

The violation may be considered as a prior violation

under ORS 634.915(2)(b) and OAR 603-57-530(4)(a).

Because that prior violation is within three prior

years of Violations Nos. 1 and 2, the “N” factor for the

latter violations is 2 and 3 respectively.

(b) 1990 and 1991 violations

In the Notices of Imposition of Civil Penalty, the

Department notified the Hendersons of its determination

of Violations Nos. 1, 2, 3, and 4. In the notices, the

Department used Violation No. 1 to enhance the penalty

for Violation No. 2; Violations Nos. 1 and 2 to enhance the

App. 48

penalty for Violation No. 3; and Violations Nos. 1, 2, and

3 to enhance the penalty for Violation No. 4.

The Hendersons object to the Department’s use of the

violations to enhance the penalties because after receipt

of the notices they denied the violations, and requested a

hearing. (Resp Cl Arg 14-15.) The Hendersons’ objection

relates only to the Department’s use of the violations

before the hearing, and does not relate to calculation of the

penalties after the hearing in which they were found to

have committed the violations. Therefore, Violations Nos.

1, 2, and 3 may be considered as prior violations of ORS

634.372(2) in the calculation of the penalties under ORS

634.915(2)(b) and OAR 603-57-530(4)(a).

Because the May 1988 violation and Violation No. 1,

which occurred on April 18, 1990, are within three prior

years of Violation No. 2, which occurred on June 29, 1990,

the value of the “N” factor for the latter violation is 3.

Because Violation Nos. 1 and 2 occurred within three

prior years of Violation No. 3., which occurred on May

15, 1991, the value of the “N” factor for the latter viola-

tion is 3.

Because Violation Nos. 1, 2 and 3 occurred within

three prior years of Violation No. 4, which occurred on

July 1, 1991, the value of the “N” factor of the latter

violation is 4.

(3) “H” Factor

The “H” factor is the “[h]istory of the person in taking

all feasible steps ** * necessary and appropriate to prevent

or correct a violative action.” OAR 603-57-530(4)(d). In the

App. 49

notices, the Department assigned the value of 0 to the “H”

factor for each violation; that is, there was “insufficient

information on which to base a finding.” Id. at (B).

The Hendersons argue that the Department's assign-

ment of a value of 0 “was arbitrary and capricious”

because the Department made no “investigation into the

elements of the H factor.” (Resp Cl Arg 14.) As a result,

they contend the “most favorable value” (-2) should be

assigned to the “H” factor. Again, the Hendersons’ argu-

ment relates to the calculation of the penalties in the

notices made before the hearing.

The Hendersons’ affirmative defense alleged in their

answers raised an issue over the correct calculation of the

penalties, and they had the burden of presenting evi-

dence at the hearing to show an error in the calculation.

ORS 183.450(2).

There is no evidence at the hearing that the Hender-

sons “took all feasible steps to correct any prior viola-

tions.” OAR 603-57-530(4)(d)(A). That is, the evidence

does not show that a value of -2 should be assigned to the

“H” factor. Rather, the factors are that the Department’s

investigations were insufficient to establish which neces-

sary and appropriate “feasible steps,” if any, were taken

by the Hendersons to prevent or correct any of the viola-

tions. OAR 603-57-530(4)(d)(B). That is, the facts show

that a value of 0 should be assigned to the “H” factor in

the calculation of the penalty for each violation.

App. 50

(4) “R” Factor

The “R” factor is “[p]reventability of violation and

whether negligence or misconduct was involved.” OAR

603-57-530(4)(e). The “R” factor is intended to assist the

Director in his consideration of the factor in ORS

634.915(2)(e):

“Whether the cause of the violation was an

unavoidable accident, negligence or an inten-

tional act.”

Under the statute and the rule, the Director should

consider whether there was a casual relationship between

the violator’s conduct and the violation. To use the terms

of the rule, the Director should consider whether the

cause of the violation was not preventable or was the

result of the violator’s negligence.

(a) Violations Nos. 1, 3. and 4

At the hearing, the Hendersons presented evidence

related to the reasonableness of Mr. Henderson’s applica-

tion of the pesticides. However, based upon that evidence

it cannot be found that the violations were “unavoid-

able”; i.e., the violations were, in fact, accidents. OAR

603-57-530(4)(e)(A); see generally, 9 Am Jur Proof of Facts

2d 623, 633-35, § 3 (1976). The Department’s evidence did

not focus on whether Mr. Henderson’s applications were

reasonable because the reasonableness of a person’s con-

duct is not a defense to commission of an act prohibited

by ORS 634.372(2). Therefore, based upon the Depart-

ment’s evidence it cannot be found that the violations

were “reasonably avoidable”; i.e., the violations were the

result of Mr. Henderson’s negligence. OAR

SI A Oe ee, Oy SFO ry = ‘s

PUT tines Ste

App. 51

603-57-530(4)(e)(C); see generally, 9 Am Jur Proof of Facts

2d, supra. In addition, based upon the evidence it cannot

be found that at the time of the applications Mr. Hender-

son was aware that drift was beyond his control, and he

made the applications anyway. Dept Cl Br 27.

Where the evidence is insufficient to support a find-

ing that a violation was either “unavoidable” or “reason-

ably avoidable,” the Department’s rule provides that a

value of 0 should be assigned to the “R” factor. OAR

603-57-530(4)(e)(B). Therefore, a value of 0 is assigned to

the “R” factor in the calculation of the penalties for

Violations Nos. 1, 3, and 4.

(b) Violations No. 2

The Department's rule assigns a value of 7 to the

“R” factor where “the person’s actions were flagrant.”

OAR 603-57-530(4)(e)(D). A person’s actions are “fla-

grant” when he had “actual knowledge of the law and

knowingly committed the violation.” OAR 603-57-500(3).

As explained above, the Hendersons “intentionally

applied [the pesticide Tilt to the Heitzman property]

inconsistent with its labeling,” because the pesticide was

mixed “contrary to the requirement on the label.” Such

application constitutes a violation of ORS 634.372(2).

In a prior order concerning violations of the same

statutes by a different company, Target Pest Control, the

Director found:

[Flor a violation, the evidence must show

that a person intended to apply a pesticide (i.e.,

he did so purposefully and not accidentally or

App. 52

inadvertently) and that the application was, in

fact, inconsistent with its labeling.

Target Order, at 32, lines 19-24. Further, the Target Order

explains,

[T]he Department’s rule apparently does

not require that a pesticide operator must have

awareness of the wrongdoing. The requirement

that a “flagrant” violation must be “knowingly”

committed (OAR 603-57-500(3)) is intended to

mean that the operator must be aware that the

applicator is performing a pest control service

within the scope of his employment.

Target Order, at 40, lines 25-36; at 41, lines 1-4.

To apply a different interpretation of the rule in the

present case would lessen the protection afforded by the

statutes and defeats the purpose of the rules. The statute

does not permit less than strict compliance with the direc-

tions: noncompliance is not to be excused for any reason,

particularly when the applicator and operator have

admitted the violation. (See Resp Cl Arg 9, 15.)

Hendersons’ admitted failure to read and/or follow

the label directions does not mitigate the violative act.

Licensed operators and applicators are presumed to

know the law and are required to abide by the label

directions. Henderson Aviation is a licensed operator, and

John Henderson is a licensed applicator. Licensees are

presumed to possess the knowledge that the rules and

regulations governing their business must be strictly

adhered to. The Director found in the Target case that

whether or not an operator knew of the violative act of an

applicator was irrelevant, because a requirement of actual

knowledge would permit a violation of the law to avoid

App. 53

the penalty for a prohibited act. There is no requirement

that actual knowledge is a prerequisite to a finding of a

violation; Hendersons are not permitted to a reduced

penalty simply for claiming they did not read the label.

Further, the Director must take notice of the prior

order in the Target case, and in doing so, finds that the

actions of the Hendersons were indeed flagrant; to find

otherwise would be inconsistent with a prior agency

order and would defeat the purpose of the agency’s regu-

latory authority.

Therefore, a value of 7 is assigned to the “R” factor in

the calculation of the penalty for Violation No. 2. OAR

603-57-530(e)(C).

(5) “C” Factor

The “C” factor is the “[clooperativeness *** of

the person to assist *** in [the] investigation and to

*** rectify the violation.” OAR 603-57-530(4)(f).

Based upon the evidence related to Violation No. 4,

the Hendersons refused to mail the documents to the

Department as requested, and did not provide an expla-

nation of the documents when asked. The documents

were not provided until an investigator went to the Hen-

dersons’ office to obtain them. It is reasonable to infer

that the documents would not have been provided if the

investigator had not gone to the office.

The above facts do not show that the Hendersons

were cooperative in the investigation. Based upon the

above facts, the Department does not contend that a

value other than 0 should be assigned to the “C” factor.

App. 54

OAR 603-57-530(4)(f)(C). The facts do show, at least, that

the Hendersons were “neither cooperative nor uncoo-

perative.” Id.

Therefore, a value of 0 is assigned to the “C” factor in

the calculation of the penalty for Violation No. 4.

ORDER

Based upon the above findings of fact, ultimate find-

ings of fact, reasoning and conclusions of law, Henderson

Aviation Co., Inc., and John P. Henderson committed the

above violations. Based upon the Department’s penalty

formula and the above values, Henderson Aviation Co.,

Inc., and John P. Henderson are subject to the following

civil penalties:

Henderson Aviation Co., Inc.:

Violation No. 1 - $ 592

Violation No. 2 - 1,350

Violation No. 3 - 888

Violation No. 4- ~ 1,480

TOTAL $4,310

John P. Henderson:

Violation No. 1 - $ 592

Violation No. 2 - 1,350

Violation No. 3 - 888

Violation No. 4 - 1,480

TOTAL $4,310

DATED this 7th day of August 1992.

/s/ Bruce Andrews

Bruce Andrews, Director

Oregon Department of

Agriculture

App. 55

NOTICE: You are entitled to a judicial review of this

Order. Judicial review may be obtained by

filing a petition for review in the Oregon

Court of Appeals within 60 days from the

date of service of this Order. Judicial review is

pursuant to the provisions of ORS 183.482.

App. 56

IN THE SUPREME COURT OF THE STATE OF OREGON

Bruce Andrews, Director,

JOHN P. HENDERSON ) Agency No.

and HENDERSON ) 603-714-NR021-91

AVIATION CO., INC., ) a eee

i )

A ee Se ) ORDER DENY-

etitioners on Keview, ) ING REVIEW

* ) CA A76943

DEPARTMENT OF ) SC $41578

AGRICULTURE, ,

)

Respondent,

Respondent on Review.

The Court has considered the petition for review and

ORDERS that it be denied.

Dated this 4th day of October, 1994.

/s/ Wallace P. Carson Jr.

WALLACE P. CARSON, JR.

CHIEF JUSTICE

Van Hoomissen, J., not participating

c: Julie K. Bolt

Laura V. Potter

Richard David Wasserman

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.