ALJDEC decisions subject to certification as final

08A-08021303AI-AGR · Department of Agriculture · 2008-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 12, 2008 at 9:00 a.m. APPEARANCES: The Arizona Department of Agriculture appeared through Casey William Cullings, Assistant Attorney General; Respondent Elioco Produce did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. Respondent Elioco Produce is a farm labor contractor, which hires laborers and transports them to work in fields owned by others. It therefore is an agricultural employer, subject to agricultural safety statutes and regulations promulgated by the Arizona Department of Agriculture (“the ADA”).[1] 2. On February 3, 2008, the ADA’s Industrial Hygienist Olga Lomeli was driving down Highway 95, en route to another inspection, when she noticed Respondent’s workers in a field near Avenue I. Because Ms. Lomeli had not before inspected Respondent’s workers for compliance with applicable statutes and regulations, she stopped, introduced herself and gave notice of their inspection rights to Respondent’s foreman Antonio Alcocer Ayala and supervisor Jose Manuel Melgarejo, and performed a worker safety protection standards inspection, which included interviews of the 25 workers onsite. 3. Ms. Lomeli did not find posted at the jobsite a written list of pesticides that had been applied to the field within the last 30 days or the location where such a list could be found, which was required by 40 C.F.R. § 170.122(c) and A.A.C. R3-3-1004(B)(1), which incorporated the federal regulation. She asked the foreman and supervisor, but they did not know. 4. Ms. Lomeli made telephone calls to two people employed by the grower, Griffin Ranches, and one of them informed her that that pesticide safety list could be found at Griffen Ranches’ central location. 5. Ms. Lomeli went to Griffen Ranches’ office and the secretary provided her with a 1080 form, which showed that the pesticide Forum 1, EPA number 241-427 had been applied to the field where Respondent’s employees were working on February 5, 2008, eight days before her inspection. Because the pesticide had been applied within 30 days, the pesticide safety list should have been posted. 6. Ms. Lomeli also could not find a central posting of a general pesticide safety information poster, which is required by 40 C.F.R. § 170.135 and A.A.C. R3-3-1002, which incorporated the federal regulation. The general pesticide safety information poster must be displayed in a central location where it can be “readily seen and read by workers” under 40 C.F.R. 170.135(d). No one at the jobsite could show her a general pesticide safety information poster. 7. Ms. Lomeli also could not find any posting of the address and telephone number of the nearest medical facility, as also required by 40 C.F.R. § 170.135 and A.A.C. R3-3-1002, which incorporated the federal regulation. No one at the jobsite could show her a posting of the address and telephone number of the nearest medical facility. 8. Ms. Lomeli also spoke to the workers who were on site. Eleven of the 25 workers did not have a current verification of pesticide training, which was required by A.A.C. R3-3- 1003(B)(2), since the pesticide Forum 1 had been applied eight days earlier to the field where the workers were handling the produce and plants. Several of the workers had expired verifications. 9. One of the uncertified workers informed Ms. Lomeli that February 13, 2008 was his first day working for Respondent. Since he was within the five-day grace period for agricultural employers to obtain certification for workers, Ms. Lomeli did not cite Respondent for this one worker. 10. After she issued her report, Ms. Lomeli received records that five of the ten employees she had reported lacked verification of having completed a pesticide training within five years had completed such training on February 26, 2008, nearly two weeks after the date of the inspection. 11. On February 13, 2008, Ms. Lomeli found soap and single-sheet wipes at the jobsite. She did not find any source of water for workers to use for decontamination. Because pesticide had been applied within the thirty days before the inspection and workers had contact with the plants to which pesticide had been applied, Respondent was required to have water available for the 25 workers on site to wash off any contamination under 40 C.F.R. § 170.150(b)(1), 40 C.F.R. 170.150(c)(1) and A.A.C. R3-3-1002. No one on site was able to show Ms. Lomeli that water was available onsite to workers for decontamination. 12. On July 30, 2008, the ADA’s Associate Director of its Environmental Services Division Jack Peterson sent a letter to Respondent, informing it that it had assessed a civil penalty in the amount of $577.50 for its violations of applicable statute and regulations. Of this amount, $227.50 was for its failure to verify pesticide safety training of its agricultural workers within 5 days of hiring them and $350.00 was for failing to provide water on site for worker decontamination. Because Respondent had no prior violations, the ADA issued warnings for Respondent’s failure to post pesticide application information, failure to post a general pesticide safety poster, and failure to post emergency medical information. 13. Mr. Peterson’s letter also informed Respondent of its right to appeal and have a hearing on the violations and assessment of civil penalties. Respondent requested an administrative hearing. 14. The ADA referred the matter to the Office of Administrative Hearings and, on October 7, 2008, issued a Complaint & Notice of Hearing, setting an administrative fair hearing on November 12, 2008. The ADA sent a copy of the Notice of Hearing via certified mail to Respondent at the same address as Mr. Peterson’s letter. 15. A hearing was held on November 12, 2008. The ADA presented the testimony of Ms. Lomeli and Mr. Peterson and had admitted into evidence four exhibits. 16. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it neither appeared through a duly authorized representative or attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence at the hearing of its compliance on February 13, 2008 with charged statutes and regulations or in mitigation of the proposed penalty. CONCLUSIONS OF LAW 1. The notice of the hearing that the ADA mailed to Respondent at its address of record was reasonable and it is deemed to have received notice of the hearing.[2] 2. This matter lies within the ADA’s statutory jurisdiction.[3] 3. The ADA bears the burden of proof and must establish Respondent’s violation of applicable statutes and regulations by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 4. The ADA has borne its burden to establish that, on February 13, 2008, Respondent was in violation of A.A.C. R3-3-1004(B)(1), A.A.C. R3-3-1002, and A.A.C. R3-3-1003(B)(2), regulations which the ADA promulgated under the authority of A.R.S. §§ 3-3106 and 3-3108, in the following respects: (a) By not posting onsite a pesticide safety list of the pesticide that had been applied within the last 30 days; (b) by not having a general pesticide safety information poster posted onsite; (c) by not having emergency medical provider information posted on site; (d) by not having current verification of pesticide training for 10 of the 25 workers on site; and (e) by not having a source of water onsite for workers to use for decontamination. 5. The ADA has also established that the assessment of a civil penalty in the amount of $577.50 is appropriate under A.R.S. § 3-3113(A). RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the ADA affirm its finding of Respondent’s violations, affirm its assessment civil penalties in the total amount of $577.50, and dismiss Respondent’s appeal. Done this day, November 12, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of November, 2008, to:

Jack Peterson, Associate Director Arizona Department of Agriculture 1688 W. Adams St. Phoenix, AZ 85007

By ___________________________ ----------------------- [1] See A.R.S. § 3-3101(4). [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D); 41-1061(A). [3] A.R.S. § 3-3101 et seq. [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826