Featured Stories

Other Pamplin Media Group sites

Aerial applicator's license suspension unwarranted, judge says

An administrative law judge has found that Oregon’s farm regulators weren’t justified in yanking the license of an aerial pesticide applicator accused of endangering the public.

In September 2015, the Oregon Department of Agriculture suspended the pesticide applicator’s license of Applebee Aviation of Banks, Ore., and fined the company $1,100 for allegedly spraying chemicals in a negligent manner.

Over the following months, the agency revoked the company’s license for five years and increased the penalties to $160,000 — with another $20,000 in fines tacked on for its owner, Mike Applebee — as it learned the company repeatedly conducted spray operations even after its license was invalidated.

However, the “preponderance of the evidence” doesn’t substantiate ODA’s allegation that Applebee Aviation posed a “serious danger to the public health or safety,” as is required to suspend a license without a hearing, according to Senior Administrative Law Judge Monica Whitaker of Oregon’s Office of Administrative Hearings.

Emergency license suspensions are an “extreme remedy,” but ODA’s findings of misconduct — such as workers handling pesticides without proper protective equipment — were largely based on the allegations of only one former employee, Darryl Ivy, Whitaker said.

The administrative law judge said the agency’s heavy reliance on Ivy’s accusations was “inherently problematic.”

Ivy quit his job with Applebee Aviation in April 2015 and went public with claims that he was exposed to herbicide spraying overhead that caused mouth blisters and a swollen airway, triggering an investigation by ODA and the Oregon Occupational Safety and Health Division.

While an ODA investigator cited photos taken by Ivy to support the agency’s conclusions, “the photos were not authenticated” and Ivy wasn’t called as witness to the evidence, Whitaker said.

For example, photos of residue on a truck windshield, which ODA accepted to be a pesticide spray mixture, could have been “soap residue” because the substance was never tested, she said.

The former employee’s “mere assertions” aren’t sufficient to establish the allegations against Applebee Aviation without further verification, Whitaker said. “It is equally as likely the photos were staged and taken at a different date, time and location.”

Whitaker has issued an order proposing that the original license suspension and civil penalty against the company be reversed, though those sanctions remain in place until ODA makes a final decision.

At this point, the administrative law judge’s proposed order is a recommendation to the ODA. The agency’s director, Katy Coba, will issue the final order, which Applebee Aviation can legally challenge if the company disagrees with her conclusions.

“As we speak, we’re mulling over the options,” said Bruce Pokarney, communications director for ODA, noting that the agency can’t comment on the proposed order’s findings.

Robert Ireland, Applebee Aviation’s attorney, said the administrative law judge’s proposed order calls into question whether ODA can fine the company and its owner $180,000 for disobeying a license suspension that wasn’t warranted.

Mike Applebee, the owner, was away from the office when the original suspension was issued, which is why some operations continued, Ireland said.

The ODA is under pressure from environmental groups to step up its enforcement of pesticide rules, which is why the agency has made a “political” case against Applebee Aviation, he said.