TUALATIN, Ore. — An aerial pesticide applicator is fighting allegations of willful misconduct from Oregon farm regulators who want to revoke his spraying license for at least five years.
An administrative law judge heard the Oregon Department of Agriculture’s case against Mike Applebee and his company, Applebee Aviation, which are accused of ignoring an emergency order to stop spraying last year.
Aside from license revocation, Applebee and his company could be subject to $180,000 in civil penalties.
During the hearings, held in Tualatin, Ore., on April 26-28, the agency argued that Applebee Aviation had a pattern of safety violations leading up to the emergency suspension but continued pesticide treatments after the order was issued in late September 2015.
Applebee countered that he wasn’t properly notified of the suspension and responded to it belatedly due to an out-of-state hunting trip from which he didn’t return until the order had been already effective for several days.
The company also sprayed cheatgrass on U.S. Bureau of Land Management property in Eastern Oregon because ODA officials didn’t clearly answer whether the suspension order prevented operations on federal land, according to Applebee.
Dale Mitchell, manager of ODA’s pesticide program, said he could not comment on the pending litigation against Applebee but acknowledged such contested cases are rare.
Companies have only challenged roughly a dozen pesticide violation citations issued by ODA over the past quarter-century, and most of those did not involve license revocations, he said.
The Applebee dispute has erupted at a time of broader controversy over aerial pesticide applications in Oregon. A prospective ballot initiative filed for the 2016 election would seek to ban aerial spraying across the state.
Oregon lawmakers passed a bill that increased no-spray buffers and doubled fines for pesticide violations last year, but environmentalists argued the legislation didn’t go far enough.
Applebee’s case came to public attention when a former employee, Daryl Ivy, claimed to have been sprayed with herbicides and released videos allegedly depicting improper aerial operations.
The ODA couldn’t substantiate that Ivy had actually been sprayed but found he possessed “credible evidence” of safety violations, such as insufficient “personal protective equipment,” or PPE, according to court documents filed by the agency.
During the recent hearing, Applebee testified that he provided pilots with credit cards to ensure the company’s crews always had enough protection.
However, some employees didn’t like using the equipment, such as thick gloves that made unscrewing chemical containers difficult, he said.
“The problem wasn’t the PPE, it was getting people to wear the PPE. That was the problem,” Applebee said.
Applebee’s testimony was supported by some of his current and former pilots, who said personal protective equipment was made readily available.
“We always did things the safest way possible,” testified David McDaniel, who flew for Applebee until December 2015.
That testimony was countered by witnesses called by ODA, including former batch truck driver Kevin Vanderlei, who said the company had a “minimal amount” of PPE and pressured employees to finish spray operations quickly.
Vanderlei said he was terminated in 2015 for complaining about leaking spray nozzles, but another Applebee pilot said he was fired for insubordination and vandalizing a company truck.
Rob Ireland, the attorney for Applebee, said the company is currently challenging the ODA’s original emergency suspension order in the Oregon Court of Appeals.
An administrative law judge found that the emergency order should be overturned, but the ODA later overrode that decision, Ireland said.
If the Court of Appeals agrees that the original suspension was invalid, it would undermine the agency’s case for license revocation and fines, he said.
Applebee Aviation has been able to spray pesticides in Oregon again for the past six weeks because the company’s license was reinstated while the litigation is pending, he said.
ODA and Applebee have until May 27 to submit their closing arguments in the administrative case on license revocation. Administrative Law Judge Jennifer Rackstraw said she would try to issue an order within 30 days of their submission.