Breeze Hill Farm and Thomas Conklin - Order, July 21, 1993
Order, July 21, 1993
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
Alleged Violations of Environmental Conservation Law ("ECL") Article 33 and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")
Parts 325 and 326
- by -
BREEZE HILL FARM
THOMAS O. CONKLIN
DEC File No.
- Pursuant to a Notice of Hearing and Complaint dated September 26, 1991, an administrative enforcement hearing was conducted on December 10, 1991 and March 16, 1992 before Administrative Law Judge ("ALJ") Robert P. O'Connor in the Department of Environmental Conservation Region 1 Office, Building 40, SUNY Campus, Stony Brook, New York.
- The Department appeared at the hearing by John F. Byrne, Esq., at the time, Assistant Regional Attorney in the Department's Region 1 Office in Stony Brook, New York. The Respondents, Thomas O. Conklin and Breeze Hill Farm (business name on applications to the Department; correct corporate name is Breeze Hill Farms, Inc.), were represented by the law firm of Esseks, Hefter and Angel, 108 East Main Street, Riverhead, New York (Stephen Angel, Esq., of Counsel).
- Upon review of the record of this proceeding and ALJ O'Connor's Hearing Report (copy attached), I hereby adopt the ALJ's Findings of Fact, Conclusions and Recommendations as my own, except as noted below.
- I concur with ALJ O'Connor that the charges which relate to the filing of commercial applicator annual reports prior to 1984 should be dismissed. The Department has no records covering this period and therefore the absence of Respondents' annual report does not give rise to any inference that these reports weren't filed.
- Respondents also ask that other charges be dismissed on the basis that the delay in bringing the charges violates SAPA 301(1) which requires that parties be afforded an opportunity for a hearing with a reasonable time. While the delay in bringing the charges was due solely to the Department Staff, the Respondents were not prejudiced in any way by this delay. Considering the factors set forth in the balancing test established by the Court of Appeals in Cortland Nursing Home v. Axelrod, 66 N.Y.2d 169 (1985), and discussed in detail in the Report, I conclude that the delay did not violate SAPA 301(1).
- Neither the statute of limitations applicable to civil or criminal proceedings applies to the proceeding. The Civil Practice Laws and Rules ("CPLR") does not apply to administrative proceedings because they are not "civil judicial proceedings" within the meaning of CPLR 101 [United States Power Squadrons v. State Human Rights Appeal Board, 84 A.D.2d 318 (2d Dept. 1981), aff'd, 50 N.Y.2d 401 (1983)]. The Criminal Procedure Law ("CPL') applies prosecutions arising out of ECL that are criminal in nature [see CPL 30.10(3)(c)].
- The most serious charges relate to Respondents' application of restricted pesticides in the potato farming operations during a time when Respondent Conklin was not a certified applicator. The gravity of these charges is heightened by Respondent Conklin's knowledge of his lack of certification and the Department Staff's verbal and written warnings to him against using restricted pesticides until he obtained the proper certification. Although Respondent Conklin may have thought he was certified, or at least qualified to be certified, the fact remains that he did not properly obtain the required certification to apply restricted pesticides following the expiration of his commercial certification in June 1983 until after he passed the examinations for private certification in April 1987. The Department's regulatory scheme for pesticides cannot countenance such willful misconduct. The maximum monetary penalties for these violations are warranted.
- Since the last two incidents involving the application of restricted pesticides during the period Respondent was not a certified applicator occurred in 1986, those violations are subsequent offenses within the context of ECL 71-2907, the first violation having occurred in 1985. There is no statutory requirement that the subsequent violations occur after the first violation is adjudicated. The cases cited the Respondent to support the contrary proposition do not involve instances of discrete sequential violations.
- In determining an appropriate civil penalty for the violations the Respondents were found to have committed, I have taken into account the circumstances of the case as set forth in the Hearing Report. Given these circumstances, I find the recommendation of the ALJ to be too severe and I have accordingly reduced the fine to reflect this judgment.
- I concur with ALJ O'Connor that the violations committed by Respondent Conklin do not demonstrate that he cannot be relied upon to responsibly execute his duties as a certified private applicator. I note, however, that recordkeeping is an important aspect of the Department's pesticide regulatory program. If such violations occur in the future more severe action would be warranted.
NOW, THEREFORE, have considered this matter, it is ORDERED that:
- Respondents violated ECL Article 33 and 6 NYCRR Parts 325 and 326 in their application of pesticides and failure to keep and file accurate records and reports in conjunction with their potato farming operations in and around the vicinity of Scuttlehole Road, Bridgehampton, Suffolk County, New York. These violations specifically relate to: private application of restricted pesticides without proper applicator certification on at least three occasions in 1985 and 1986; failure to maintain complete pesticide application and use records in 1983 and 1984; late filing of 1984 and 1985 commercial permit annual reports; use of non-New York State registered pesticides in 1985 and 1986; failure to file 1984 commercial permit annual report on correct form; failure to enter EPA Registration Numbers for two products on 1984 commercial permit annual report; failure to file commercial applicator annual reports in 1980, 1981, 1982 and 1983; and failure to file commercial permit annual reports in 1982, 1983, 1987, 1988, 1989, and 1990.
- Respondents are jointly and severally assessed a civil penalty in the amount of Forty Thousand Dollars ($40,000). Of this amount, Twenty Thousand Dollars ($20,000) shall be due and payable sixty (60) days after service of this Order on Respondents. The remainder of the penalty shall be suspended but shall become due and payable in full immediately if at any time within five years of the issuance of this Order either Respondent commits a further violation of ECL Article 33, its implementing regulations or this Order unless the violation is otherwise forgiven by the Department.
- Charges that Respondents violated the ECL and 6 NYCRR by failing to submit commercial applicator annual reports in 1978 and 1979 and by failing to make records available for inspection on September 3, 1986 are dismissed.
- All communications between Respondents and the Department concerning this Order shall be made to the Department's Region 1 Director, Building 40, SUNY Campus, Stony Brook, New York 11790-2356.
- The provisions, terms and conditions of the Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.
For the New York State Department
of Environmental Conservation
By: THOMAS C. JORLING, COMMISSIONER
Dated: Albany, New York
July 21, 1993
To: Thomas O. Conklin
P.O. Drawer AZ
Bridgehampton, New York 11932
Breeze Hill Farms, Inc.
P.O. Drawer AZ
Bridgehampton, New York 11932
Stephen R. Angel, Esq.
Esseks, Hefter & Angel
108 East Main Street
P.O. Box 279
Riverhead, New York 11901
NYSDEC - Region 1
Building 40, SUNY Campus
Stony Brook, New York 11790-2356
Lori J. Riley, Esq.
NYSDEC - Region 1
Building 40, SUNY Campus
Stony Brook, New York 11790-2356
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550
In the Matter
- of -
Alleged Violations of Environmental Conservation Law ("ECL") Article 33 (Pesticides) and
Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR")
Parts 325 (Application of Pesticides) and 326 (Restricted Pesticides)
- by -
BREEZE HILL FARM
THOMAS O. CONKLIN
P.O. Drawer AZ
New York 11932
DEC File Number 1-1694
- by -
Robert P. O'Connor
Administrative Law Judge
The New York State Department of Environmental Conservation ("Department" or "DEC"), through its Region 1 Office, Building 40, SUNY Campus, Stony Brook, New York 11790-2356, served a Notice of Hearing and Complaint, with Verification, dated September 26, 1991, upon Breeze Hill Farm and Thomas O. Conklin ("Respondents"), both at the mailing address: Scuttlehole Road, P.O. Drawer AZ, Bridgehampton, Suffolk County, New York 11932. Service of the Notice and Complaint was acknowledged by the signature "Thomas Conklin" and the Bridgehampton, New York Post Office date stamp, "SEP 28 1991" on two U.S. Postal Service Return Receipts, one sent to each of the above-named Respondents. The Return Receipts were received back in the Department's Region 1 Legal Affairs Office in Stony Brook, New York on October 1, 1991.
The Notice of Hearing directed Respondents to appear for an administrative enforcement hearing in the Department's Region 1 Office at the above address on October 23, 1991 at 10:00 A.M. to answer charges of alleged violations of Environmental Conservation Law ("ECL") Article 33 (Pesticides) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 325 (Application of Pesticides) and Part 326 (Restricted Pesticides). The Department Staff alleged the violations were caused by Respondents' actions at Breeze Hill Farm, Scuttlehole Road, Bridgehampton, Suffolk County, New York on various dates between 1983 and 1990.
Subject to adjournments duly taken, the hearing was commenced before Administrative Law Judge Robert P. O'Connor in the Department's Region 1 Office on December 10, 1991 and concluded with a second session in the same location on March 16, 1992.
The Department Staff was represented at the hearing by John F. Byrne, Esq., Assistant Region 1 Attorney at the time. Appearing as witnesses for the Department Staff were Vincent A. Palmer, Pesticide Control Specialist II, from the Department's Region 1 Office in Stony Brook, New York and Richard A. Hager, Pesticide Control Specialist I, from the Department's Central Office in Albany, New York.
The Respondents were represented by Esseks, Hefter and Angel, 108 East Main Street, Riverhead, New York (Stephen Angel, Esq., of Counsel). Thomas O. Conklin appeared as a witness for the Respondents.
The stenographic transcript of the hearing was received on May 20, 1992. The hearing record was closed on September 4, 1992 following receipt of post-hearing statements from the Department Staff and the Respondents.
The Charges and Relief Sought
The Complaint served upon the Respondents by the Department's Region 1 Staff alleges Respondents violated various sections of ECL Article 33 and 6 NYCRR Parts 325 and 326, the Pesticide Law and implementing regulations, respectively, by committing various acts and omissions as detailed on the two-page document "Penalty Assessment -- Breeze Hill Farm and Thomas O. Conklin," prepared by the Department Staff as Exhibit No. 3 for the hearing and attached hereto as Appendix "A". This document also details the breakdown of the Staff's requested monetary penalty of $261,400.
In addition to the requested civil penalty, the Department Staff also seeks to have Respondent Thomas O. Conklin's certification as a private applicator revoked, and to have Respondents cease and desist from any and all further violations of the ECL. In the event Respondent Conklin's private applicator certification is revoked as the result of the instant action, The Staff recommends a payable penalty of $100,000, with a suspended penalty of $161,000 to ensure compliance with the revocation.
In an Answer served on the Department Staff on November 1, 1991, Respondents generally denied the Staff's allegations pertaining to violations of the ECL and 6 NYCRR.
Additionally, Respondents submitted several affirmative defenses which state the delay in bringing charges which date back to as early as 1982 has denied the Respondents of their due process rights, and is in violation of the State Administrative Procedures Law ("SAPA") 301. Respondents state the Department is guilty of laches and the complaint is barred by statutes of limitations. Further, the Department failed its obligation to notify farmers, specifically the Respondents, of the expiration of their pesticide permits. Additionally, the Department has engaged in selective enforcement and entrapment, and the Staff's charges are motivated by a desire to put Respondents out of business. Finally, the Department's actions violate the policy of the State of New York to encourage agriculture within the State. Based upon the foregoing, the Respondents seek dismissal of the Department Staff's Complaint.
The Respondents also noted the correct corporate entity for Breeze Hill Farm, named in the Complaint, is Breeze Hill Farms, Inc. ("Breeze Hill Farm" is the business name provided by Respondent Conklin on his applications for a Commercial Permit.)
Additionally, Respondents, on December 4, 1991, presented the ALJ with a Motion to Dismiss the complaint on the ground the delay in scheduling the hearing is unreasonable and constitutes an erroneous exercise of discretion by the Department Staff.
Findings of Fact
The following Findings are premised on the facts that Respondents held a Restricted Pesticides Commercial Permit from 1975 to 1991 and Respondent Conklin held a Commercial Pesticide Applicator Certification from 1978 to 1983. Regardless of the initial reasons for Respondents obtaining the commercial permit and certification, their purchase and application of pesticides were clearly such that obtaining the commercial permit and certification was unnecessary.
For the types of pesticide operations in which Respondents engaged, i.e. - no pesticide sales and application of pesticides only on their own property or rented lands, all Respondent Conklin needed was a Private Pesticide Applicator Certification to purchase and apply both general use and restricted use pesticides in Respondents' potato farming activities. While the private applicator certification requires the same diligent record keeping as the commercial certification, Respondent Conklin, with only a private certification, would not have been required to submit annual pesticide use reports. Additionally, without a commercial permit, Respondents would not have been required to submit annual pesticide sales reports.
In summary, considering the nature of Respondent Conklin's activities, he did not have the correct certification until 1987, and Respondents did not need the commercial permit which they held until 1991. Consequently, for many of the Department Staff's charges, Respondents were, in fact, operating under the wrong sections of the pesticide regulations. Under the correct set of rules, no annual reports to the Department would have been required of Respondents.
- Respondent Thomas O. Conklin is a farmer and the owner and operator of a potato farming business located at Scuttlehole Road, Bridgehampton, Town of Southampton, Suffolk County, New York.
- Respondent Breeze Hill Farms, Inc. is a Delaware corporation which was set up many years ago to function mostly in the marketing of potato crops, although it also operates a potato farming operation from the above noted address, in the general vicinity of Bridgehampton and Water Mill, New York. Respondent Conklin is the shareholder of Breeze Hill Farms, Inc. and is in charge of its operations. The potato farming operations of the Respondents occur on approximately 300 acres of property that is both owned by the Respondents and rented from other persons.
The Permits and Certification
- Respondent Conklin, as the owner-operator, in the business name of "Breeze Hill Farm," initially applied for a commercial pesticides permit as a "Farmer - occasional (sic) sales" on May 1, 1975. The Department issued Breeze Hill Farm/Thomas O. Conklin a Restricted Pesticides Commercial Permit, Number 03546, on May 29, 1975. This commercial permit was regularly renewed and remained valid at least through February 28, 1991. It is noted that on the renewal applications for this permit, Respondent Conklin did not always date the application forms and did not always enter the correct permit number, i.e. - #03546, in the space which asked for "Permanent I.D. Number."
Respondent Conklin, on two renewal applications entered the number C1-202299, his Commercial Pesticide Applicator certification number (see Finding No. 5 below). On one occasion, Respondent Conklin entered the number 10552, which apparently does not correspond to any related matter.
- A Restricted Pesticides Commercial Permit, pursuant to 6 NYCRR 326.1(d), is a permit for the distribution, sale, offer for sale, purchase for the purpose of resale, or possession for the purpose of resale, of a restricted pesticide. Respondent Conklin believed that with a commercial permit allowing him to buy and sell restricted pesticides, i.e. - as a dealer, he could purchase pesticides at a lower price than a "farmer" or individual. Respondent did not at any time engage in the sales of any restricted pesticides. All materials purchased under the permit were restricted pesticides solely for his own use. A commercial permit does not authorize a person to purchase restricted pesticides for personal or individual use.
- A Purchase Permit, pursuant to 6 NYCRR 326.1(n), is a permit for the purchase, possession, or use of a restricted pesticide. In the context of the pesticide regulations, the term "purchase permit" also means, as an alternative, a certification identification card. In accordance with 6 NYCRR 326.7(b), purchase permits may be issued to persons who regularly use and apply pesticides as a significant part of their gainful employment or livelihood, including among others, farmers.
- Respondent Conklin acquired certification as a Commercial Pesticide Applicator in the "plant" category on April 21, 1978. Mr. Conklin received a Pesticide Applicator Certificate, Number 801191, assigning him Identification Number C1-202299. The certification obtained by Mr. Conklin allowed him to use or to supervise the use of pesticides for pest control in the production of agricultural crops, including vegetables, e.g. - potatoes.
- 6 NYCRR 325.22(d) requires certified commercial applicators to be recertified every five years. The Certificate which Mr. Conklin received was marked with an expiration date of June 21, 1983, approximately five years after it was originally issued.
- Mr. Conklin was also issued a Pesticide Applicator Identification card, as a Commercial Pesticide Applicator certified in the "1A" category (1 = Agriculture, A = Plant). The identification card bore "I.D." and Certification numbers corresponding to those above, and showed an expiration date of 6/21/79. A current valid Pesticide Applicator Identification card is proof of certification.
- In accordance with 6 NYCRR 325.18(c), a certificate for a commercial applicator shall be valid for a period of one year, unless suspended, revoked or otherwise modified by the Commissioner. Pursuant to 6 NYCRR 325.22(c), a commercial applicator who possesses a valid certificate may renew the certificate for a period of one year upon application to the Department.
- Richard A. Hagar, Pesticide Control Specialist I, in the Department's Bureau of Pesticides central office in Albany, New York, testified that in approximately 1981 the Department discontinued the issuance of the actual paper certificates which accompanied the certification of an individual as a Commercial Pesticide Applicator. He also testified that in approximately 1983 the Department changed the certification term from five years to a six year period.
- Mr. Hagar also testified that Pesticide Applicator Identification cards were renewable on an annual basis during the period approximately 1977 through June 1988. After June 1988, the Department converted the identification cards to a three-year renewal system. Since Mr. Hagar began supervising the Department's pesticide applicator certification program in 1985, identification card holders are normally notified of their need to renew their certifications approximately two and one-half months prior to the expiration of their current certifications. A computer program used by the Department is keyed on a monthly basis to select the renewals for the desired month, and the renewal notices are then generated by computer and mailed to the selected individuals. Mr. Hagar did not know the typical lead time for renewal notifications for the years prior to his involvement in the certification program, i.e. - prior to 1985.
- If an individual timely renews his/her certification on an annual basis, the person receives a current updated identification card with the same certification number which had initially been assigned to that certified applicator. If the certified applicator does not renew his/her certification for two consecutive years, the person is deleted from the Department's files and will no longer receive renewal notifications from the Department. In this event, in order to be recertified, the individual must repeat all training and examinations before a new identification card will be issued.
- Currently, the Department's computerized system of recordkeeping can identify those persons who have been deleted for failure to renew their certification. With respect to those persons who were deleted from the Department's certified applicator files for failure to renew prior to 1987, all records were manually maintained, and it is possible the Department no longer has any records for those individuals.
- In the instance of Respondent Conklin, Mr. Hagar searched the Department's computerized files back to 1987 and the Albany/central office manually maintained files back to July 1984, the earliest he could find, and found no records regarding Thomas O. Conklin or his Commercial Pesticide Applicator certification identification number. The Department has no evidence that Respondent Conklin renewed his certification identification card on an annual basis during the period April 21, 1978 through June 21, 1983.
- Similarly, the Department has no record of Respondent Conklin applying for or obtaining recertification as a Commercial Pesticide Applicator following the June 21, 1983 expiration of his original certification.
- Respondent Conklin does not have an independent recollection of renewing his certification identification card on an annual basis during the period April 21, 1978 through June 21, 1983, although he recalled receiving forms from the Department, filling out the forms, paying whatever fee was required and mailing the forms back to the return addresses. He stated that to the best of his recollection, he had filled out all the forms which he had received and returned them with the required fees. In response, he received back from the Department various "permits," which he understood allowed him to purchase and use pesticides.
- Respondent Conklin believed that even following the June 21, 1983 expiration of his original certification his original certification as a Commercial Pesticide Applicator was intact and in effect. His basis for this belief was the fact that he had attended classes. Among these classes attended by Respondent Conklin was an annual school that was run by Cornell Cooperative Extension and the New York Farm Bureau for all farmers in the area. It was his understanding that his certification would be intact if he did certain things, and the courses he had taken were some of the things which were required. Respondent Conklin did not follow up with Department Staff to determine the actual status of his certification or to ensure the courses he had taken were credited toward his recertification.
- A "commercial applicator," pursuant to 6 NYCRR 325.1(j), "means a certified applicator (whether or not a private applicator with respect to some uses) who uses or supervises the use of any pesticide for any purpose on any property other than as provided by the definition of 'private applicator'." Pursuant to 6 NYCRR 325.1(ah), "Private applicator means a certified applicator who uses or supervises the use of restricted use pesticides for purposes of producing any agricultural commodity on property owned or rented by the applicator or the applicator's employer or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property of another person."
- Respondent Conklin only applied pesticides in the course of his own potato growing operations. He did not apply any chemicals of any kind on anyone else's property, other than his own farms.
- Respondent Conklin's only reason for initially obtaining certification as a Commercial Pesticide Applicator was the same as stated in Finding No. 4 above, i.e. - with the "commercial" designation, he thought he would be able to pay less for the pesticides which he purchased for his potato farming operation.
- On December 10, 1986, Respondent Conklin applied to the Department for certification as a Private Pesticide Applicator. His stated reason for doing so was the realization that he was only applying pesticides on his own potato crops, and therefore did not need, and probably had never needed, the commercial certification. Following failure to demonstrate his competence in the use and handling of pesticides by twice failing the certification examination, Respondent Conklin received his Private Pesticide Applicator Certification in the Vegetable Commodity sometime after he took for the third time and passed the requisite examination on April 22, 1987. Respondent Conklin's Private Pesticide Applicator Certification remained valid at least through the dates of the hearing in this matter.
- As a farmer holding a Private Pesticide Applicator Certification, Respondent Conklin did not need any further permit, license or certification in order to purchase pesticides for use in his own farming operations.
- Of particular note, however, is an inspection of the Respondents' pesticide applicator operations which occurred on July 1, 1985. The inspection was conducted by Vincent A. Palmer, at the time a Senior Pesticide Control Inspector in the Department's Region 1 Office in Stony Brook, New York. At the time of the inspection, Respondent Conklin was unable to show Mr. Palmer any evidence that he held current certification as either a Commercial or a Private Pesticide Applicator. Nevertheless, Respondent Conklin admitted that he used restricted pesticides in his potato growing business. Mr. Palmer advised Respondent Conklin not to use restricted pesticides without being certified. Mr. Palmer discovered other deficiencies in the Respondents' pesticide applicator operations during the course of the inspection, as detailed in the following Findings.
- On July 1, 1985, Respondent Conklin was unable to produce for inspection copies of the Respondents' commercial applicator annual reports of pesticide use for the past three years, as required by 6 NYCRR 325.25.
- On July 1, 1985, Respondent Conklin was unable to produce for inspection copies of the Respondents' use records of restricted pesticide usage, either for commercial applicator pesticide use, i.e. - the kind and quantity of each pesticide used, dosage rates, methods of application, target organisms, and the use, date and place of application for each pesticide used, as required by 6 NYCRR 325.25(c), or for private applicator pesticide use, i.e. - the restricted use pesticides purchased, the crops treated by such, their method of application, and the date(s) of their application(s), as required by 6 NYCRR 325.44. Such records are to be maintained on an annual basis and retained for a minimum of three years. On or about July 1 or 2, 1985, Respondent Conklin prepared a hand-written record of four (4) separate dates on which pesticides were applied to Respondents' fields through July 1 of the 1985 growing season. Respondent Conklin prepared these records in Mr. Palmer's presence, relying on his memory and a calendar on the wall of his home office.
- On July 1, 1985, Respondent Conklin was unable to produce for inspection copies of Respondents' commercial permit holder records pertaining to the acquisition, sale or disposal of restricted pesticides, as required by 6 NYCRR 326.3(f). Such records are to be maintained for a period of two years.
- On October 4, 1985, Mr. Palmer sent Respondents a letter noting the private application of restricted pesticides without possessing valid certification is a violation of the ECL and 6 NYCRR, and additionally, the failure to comply with record keeping requirements in 6 NYCRR also constitutes a violation. The letter advised that both matters would be the subjects of anticipated enforcement actions against Respondents.
- On September 3, 1986, Mr. Palmer called Respondent Conklin by telephone to set up an appointment for another inspection as a follow-up to the July 1, 1985 inspection. Respondent Conklin told Mr. Palmer that he was too busy with his potato growing/harvesting operations in September to take the necessary time for an inspection. He asked Mr. Palmer to call back in a month or two to reschedule the inspection after the potato season was over. Respondent Conklin admitted during the conversation that he continued to use restricted pesticides in the Respondents' potato farming operations, although he had been unable to obtain certification yet. Mr. Palmer did not go to the Respondents' potato farming operation in 1986 or call Respondent Conklin back to pursue any further inspection opportunities.
- On or about September 3, 1986, Mr. Palmer did not go to Respondents' farm to observe the operation or inspect Respondents' records. However, perhaps prompted by Mr. Palmer's September 3, 1986 telephone call, sometime after that phone call Respondent Conklin did mail to Mr. Palmer a hand-written record of pesticide use in the Respondents' operations for the 1986 growing season (September 9 is the last entry.)
The Hand-Written Pesticide Use Records
- The 1985 record of pesticide use which Respondent Conklin prepared during Mr. Palmer's July 1, 1985 inspection listed the restricted pesticide "Monitor" [6 NYCRR 326.2(a)(51)] as having been applied for aphid control at the rate of one (1) quart per acre on June 25, 1985.
- The 1986 record of pesticide use which Respondent Conklin mailed to Mr. Palmer sometime after their September 3, 1986 phone conversation listed two different applications for the restricted pesticide "Monitor". The first listing was for July 7-11: one (1) to one and one-quarter (1) quart Monitor per 100 gallons, with the further notation - No Monitor #1, #3. The second listing was for August 4-8: one (1) quart Monitor, with the further notation - #5, 6, 7, 8.
- Respondent Conklin explained during his testimony that the 1986 hand-written list was not an after-the-fact record of pesticide usage in the course of his potato farming operations during the 1986 growing season. The list sent to Mr. Palmer was actually an instruction sheet which Respondent Conklin had prepared for his brother, Ben Conklin, who was the field operator of the equipment used to apply the pesticide chemicals. He further explained that the dates listed on the sheet were guidance for use of the chemicals during specific time frames.
- Respondent Conklin did not know for sure on what specific days within those July 7-11, 1986 and August 4-8, 1986 time frames the pesticide applications had occurred. However, in his experience the general practice would have been to use "Monitor" on only one day during the July 7-11 period and on only one day during the August 4-8 period. Additionally, during the July application of the chemical, his application instructions for his brother were that no "Monitor" was to be applied to fields #1 and #3 on his potato farm, while during the August application, "Monitor" was to be applied to fields #5, #6, #7, and #8.
The Annual Reports
- Pursuant to 6 NYCRR 325.25(b) and (c), commercial applicators, such as the Respondents, who are not employed by a registered business, shall file annual reports with the Department not later than January 15th of each year. These reports shall cover the previous calendar year and shall list the quantity of pesticides used, reported for each product. EPA Registration Numbers shall be used as a reference to the products; product names shall not be used. Department Form No. 44-15-10(1/83) "Commercial Certified Applicators Annual Report - Pesticides Used" is the proper form to be used for these annual reports of pesticide use.
- The Department Staff searched its files of commercial applicator annual reports and has no records that Respondent Conklin submitted annual reports of his commercial applicator activities for the years 1980, 1981, 1982, and 1983. The Staff provided no information regarding Respondent Conklin's commercial applicator annual reports for the years 1978 and 1979. The Respondents have not retained any records to show that they did or did not submit their commercial applicator annual reports for these six years.
- Pursuant to 6 NYCRR 326.10(b)(3), commercial permit holders, such as Respondents, shall file annual reports with the Department not later than the 15th business day following the last day of the calendar year for which the report is being submitted. The report shall show the total sales of each restricted substance, by formulation, listed in 6 NYCRR 326.2(a) and (b). Department Form No. 44-15-1(1/83) "Restricted Pesticides Annual Report" is the proper form to be used for these annual reports of pesticide sales.
- On March 13, 1985, the Department received from Respondents a Department Form No. 44-15-9(1/83) "Registered Pesticide Business Annual Report - Pesticides Used" for reporting year 1984. The form has a column for "Quantity Used." This form is to be used by registered pesticide businesses in reporting the quantities of pesticides used, under the provisions of 6 NYCRR 325.25(b). It is not appropriate for use by a commercial permit holder reporting sales of pesticides in the prior year. In 1985, the 15th business day following the last day of 1984 was January 22. The report was received, then, 50 days total, or 35 business days following its due date.
- With respect to the information which Respondents submitted on the 1984 report, the EPA Registration Number was not listed for the formulations of "Sinox PE" and "Paraquat" which Respondents claimed to have used. Additionally, no quantities of either of these products were listed as being used.
- It is particularly important to properly identify each pesticide product used by its EPA Registration Number. Many pesticide products have similar or identical trade names. However, every product formulation has its own unique EPA Registration Number. For example, there are many different formulations of "Paraquat" available on the market. Each individual formulation of "Paraquat" would be identified by its own particular EPA Registration Number.
- On December 24, 1986, the Department received from Respondents a Restricted Pesticides Annual Report, the proper form for sales by commercial permit holders, for reporting year 1985. The report was received over eleven months after its due date.
- On the 1985 report, Respondents listed the product "Rotenox", EPA Registration No. 655-6A, in the column of the form marked "Quantity Sold." "Rotenox", EPA Registration No. 655-6A, was not registered for sale or use in New York State in 1985.
- On December 24, 1986, the Department received from Respondents a Restricted Pesticides Annual Report, the proper form for sales by commercial permit holders, for reporting year 1986. The report was received approximately three weeks prior to its due date.
- In the 1986 report, Respondents listed the products "Endocide," EPA Registration No. 37404-68, and "Rotenox," EPA Registration No. 655-6A, in the column of the form marked "Quantity Sold." Neither "Endocide," EPA Registration No. 37404-68, nor "Rotenox," EPA Registration No. 655-6A, were registered for sale or use in New York State in 1986.
- Pursuant to ECL 33-0701, every pesticide used within the State shall be registered every two years. ECL 33-1301(1)(a) makes it unlawful to use any pesticide which is not registered. Pesticides are typically not marked or in any way identified to let a purchaser or user know if they are registered in New York State.
- The Department has no records of commercial permit holder annual reports ever having been received from the Respondents for the reporting years 1982, 1983, 1987, 1988, 1989, or 1990. The Respondents were unable to produce any records to show that they had filed commercial permit holder annual reports for these six years.
- As a farmer holding a Private Pesticide Applicator Certification since 1987, Respondent Conklin was required to maintain all the necessary records for the stated time periods pursuant to 6 NYCRR Parts 325 and 326. However, private applicators are not required to submit annual reports to the Department regarding purchase or use of pesticides.
As noted above, Respondents generally denied the Staff's allegations regarding violations of the ECL and 6 NYCRR and interposed a variety of affirmative defenses. Respondents seek dismissal of all charges on the basis of these affirmative defenses.
First Affirmative Defense
As a first ground for dismissal, Respondents allege the delay in serving the complaint in this matter has prejudiced them by depriving them of the opportunity of adequately defending the charges in the complaint, thereby amounting to a denial of the constitutionally protected rights of due process and equal protection of the law and other constitutionally secured rights. Due process, equal protection of the law and other constitutional rights are issues which are beyond the scope of an administrative enforcement hearing. Respondents must argue these matters in a different forum.
Second Affirmative Defense
Respondents allege the delay and prejudice involved in bringing the charges against them violates the State Administrative Procedures Act ("SAPA"), 301(1), which states in pertinent part, "[in] an adjudicatory proceeding, all parties shall be afforded an opportunity for hearing within reasonable time."
In the Conclusions section of this Report, I have determined the earliest charges in this matter, i.e. - those relating to the 1978 and 1979 annual reports for Respondent Conklin's Commercial Pesticide Applicator Certification, should be dismissed for failure of the Department Staff to present a prima facie case. Therefore, no SAPA 301 issue exists with respect to these charges.
With respect to the remainder of the charges, SAPA does not define what time period should be measured, and the courts, in applying the statute, have used different measurements as a gauge of reasonableness. This case is somewhat similar to Liberty Lines Express, Inc. v. New York City Environmental Control Board, 160 AD2d 295 (1st Dept., 1990). In that case, the Appellate Division, citing Cortlandt Nursing Home v. Axelrod, 66 NY2d 169, 495 NYS2d 927 (1985), appeared to measure the time between the City's receipt of citizen-initiated complaints and its action to enforce the City's air pollution code. The time period measured by the court was that period prior to the commencement of the enforcement action, unlike Cortlandt, where the period measured began with the initiation of the proceeding. In this case, therefore, the time to be measured is that period between (1) when the Department Staff Inspector became aware of and subsequently advised Respondents of potential violations of the ECL and 6 NYCRR, verbally on July 1, 1985 and in writing on October 4, 1985, and (2) when the complaint was served upon the Respondents.
In this matter, a fair application of SAPA 301(1) must include an assessment of the total time period since the Department Staff first became aware of the information upon which it has based its causes of action. As noted above, approximately six (6) years ensued from the time the Staff became aware of Respondents' potential violations and the time it served its complaint on Respondents. The complaint then included causes of action ranging from nine (9) years old (1982) to one (1) year old (1990).
Whether this was a reasonable time must be considered in light of several different factors, since there is no fixed period after which delay becomes unreasonable as a matter of law. In Cortlandt, the court stated, "an administrative body in the first instance, and the judiciary in review, must weigh . . . (1) the nature of the private interest allegedly compromised by delay; (2) the actual prejudice to the private party; (3) the causal connection between the conduct of the parties and the delay; and (4) the underlying public policy advanced by governmental regulation [66 NY2d 169, at 178].
- (1) Nature of the Private Interest
Respondents claim the nature of their private interest allegedly compromised by the delay in bringing the instant action relates to Respondents' ability to apply certain pesticides as an integral part of their potato growing operations. In modern day agriculture, the ability to purchase and apply chemical pesticides to control diseases, fungi, weeds and insects, and to increase crop yield is a critical element in the balance equation which often determines whether a farmer can make a profit or whether he suffers a loss.
Respondents have also pointed out the public policy of the State in promoting agriculture, e.g. - Agriculture and Markets Law, Section 3. It should be noted, however, that the State's policy in favor of agriculture does not equate to an equivalent policy to favor the use of pesticides. Respondents' interest in their ability to continue their potato farming must be weighed against the Department's interest in regulating the purchase and application of pesticides to protect public health, safety and the environment.
Here, the Department Staff has not alleged improper or misapplication of regulated pesticides or any environmental damage which would require remediation. Rather, the Department Staff has alleged primarily a series of record keeping/report filing errors and failures on the part of Respondents. The Department Staff seeks a very large monetary penalty and revocation of Respondent Conklin's certification as a Private Pesticide Applicator.
In fact, there is no private interest issue regarding Respondents' ability to stay in business. No issue was raised by Respondents regarding their ability to pay a penalty. Furthermore, a potato farmer need not be certified to apply pesticides on his lands in order to stay in business. If pesticides are needed, while it might be more convenient and less costly for the farmer to apply them himself, the ability to continue growing potatoes does not hinge on the farmer's certification to apply pesticides. The farmer can employ a certified applicator to apply whatever pesticides are needed.
If there is any private interest at issue in the instant matter, it may be Respondents' interest in bringing this case to a conclusion, i.e. - resolve the issue of their liability and move on.
- (2) Actual Prejudice
Respondents claim the delay in bringing charges has hindered them in mounting a defense, and has therefore caused them actual prejudice. This prejudice is related mainly to Respondents' supposed inability to refer to records, reports and files which they are no longer obligated to retain.
The Cortlandt decision states, in assessing a claim under SAPA Section 301(1), it is "critical" to consider whether delay has caused "substantial prejudice" to the private party because "the agency . . . is authorized to dismiss the proceeding . . . where administrative delay has significantly and irreparably handicapped a private party in mounting a defense in an adversary administrative proceeding" [66 NY2d 169, at 180].
Depending on the particular type of record, the pesticide regulations in 6 NYCRR Parts 325 and 326 only require retention of records for two or, at most, three years. Respondents do not keep records any longer than required by the regulations. Furthermore, Respondent Conklin stated that he has no independent recollection of preparing and filing specific reports during the period of time for which the Staff has brought charges. At best, he recalls receiving forms from the Department, completing them and returning them with the necessary fees.
In this case, however, many of the records and reports in question were available from the Department's files. Copies of any and all records in the Department's possession which were requested by the Respondents were furnished to them by the Department Staff. These records are comprised of annual reports, permit application and renewal forms and pesticide use records, all of which were originally prepared by Respondent Conklin. The only exception relates to any records concerning Respondent Conklin's certification as a commercial pesticide applicator and to records for commercial applicator annual reports in the years 1978 and 1979. The Department Staff researched its commercial applicator certification records, i.e. - computer records which only go back to 1987 and manual records which date only to 1984. The Department Staff presented a photocopy of Respondent Conklin's original certificate, but otherwise has no record of any renewals or even any certification identification number for Respondent Conklin. The Department Staff reviewed commercial applicator annual report records only back to 1980 and found no record of its receiving the required annual reports from Respondent Conklin.
Respondents have made no allegations that the records which are maintained by the Department, except for the commercial applicator certification records, are incomplete. Those persons who are required to submit various pesticide reports to the Department bear the burden of doing so in a timely manner. If the required reports do not appear in the Department's records, in the absence of mitigating facts, there must be a presumption that the reports were not properly filed with the Department. Moreover, in the instant case, Respondent Conklin's alleged confusion regarding his reporting obligations and the type of pesticide permits he needed, i.e. - private vs. commercial, corroborates the evidence which the Department Staff presented to show that Respondents failed to submit the required reports. The nature of potential prejudice to Respondents, if any at all, is remote under these circumstances. There is no indication in this record that if the charges had been brought against the Respondents any sooner the circumstances would be any different, or that the Respondents would not have been prejudiced solely because of the time factor.
The key factor to consider here is whether Respondents submitted the required reports to the Department. The evidence is strong that the reports were never submitted.
However, with respect to the charges regarding the status of Respondent Conklin's failure to submit commercial pesticide applicator annual reports during the period 1978 and 1979, i.e. - predating the Department's earliest commercial applicator annual report records which apparently begin in 1980, I am recommending the Commissioner dismiss these charges for the Department Staff's failure to present a prima facie case.
In summary, with respect to the records maintained by the Department Staff, except for the 1978 to 1983 commercial applicator certification records and the 1978 and 1979 commercial applicator annual report records, Respondents made no allegations that the Staff's records were incomplete or that any records were missing from the materials which the Staff provided them. In all other respects, save Respondent Conklin's lack of specificity regarding the filling out of forms and filing reports, Respondents put up a spirited defense, and I find no indication of actual prejudice in this matter.
- (3) Cause of Delay
The Department Staff is the sole cause of delay in this matter. Nothing but its own conduct, after it first identified potential pesticide violations in Respondents' farming operations, prevented the Staff from bringing charges in a more timely fashion.
There is no indication that the Respondents delayed the Department Staff investigation, other than asking that an inspection be deferred for a month or two. Presumably, the reason the Staff called Respondent Conklin on September 3, 1986 was to set up an appointment for a follow-up inspection at a mutually acceptable time. Respondents were, at that time, very involved in the harvesting operations for their potato crop. It was not unreasonable for Respondent Conklin to ask that the inspection be scheduled later when he was not so busy. The Respondents did not try to avoid the inspection; they merely asked that it be postponed. Notably, the Department Staff never attempted to reschedule the inspection. Indeed, Mr. Palmer testified that the only time he had ever been to Respondents' farm was in July 1985.
The Department Staff sent Respondents a letter on October 4, 1985 which contemplated the initiation of enforcement actions. It took six years to initiate such actions against the Respondents. During that time, the Respondents had no duty to ask for a hearing. Whether to bring charges, and therefore commence a hearing, was wholly within the prerogative of the Department Staff.
Accepting, for the sake of argument, that the Department of Environmental Conservation is underfunded and understaffed for all the responsibilities and mandates the Department has to carry out, it is incumbent on the Department to utilize its staff in the areas which it considers most important for the protection of public health, safety and the environment. If enforcement of the environmental laws and regulations is a top priority, then appropriate numbers of staff should be allotted to enforcement activities. If this prioritization requires that some cases be abandoned due to their relatively low importance in the Department's overall enforcement scheme, so be it.
- (4) Public Policy
The Department Staff asserts that even if the delay in bringing the enforcement action has caused some additional burden to the Respondents, this burden is inconsequential compared to the greater public policy interests underlying the adjudication of pesticide violations and the protection of public health and safety. While acknowledging that many of the alleged violations are "paperwork-related," i.e. - involving record keeping and report filing, the Department Staff notes that Respondents are also charged with the application of restricted pesticides without possessing the proper certification, and with the application of pesticides not registered for use or sale in New York State. The Staff asserts the mere passage of time should not preclude its prosecution of the Respondents for all alleged violations.
Respondents assert the delay in bringing this case speaks for itself in determining the importance the Department Staff placed on the alleged violations, and about its view of the public interest. In the Respondents' view, the Department Staff's case is based primarily on alleged errors and failures by the Respondents related to record keeping and report filing. Respondents point out the Staff's allegations go far beyond the gambit of the Department's own regulations for record keeping purposes, and in the instance of several of the alleged violations, the Staff does not now even maintain a record of Respondent Conklin's ever having been certified as a commercial pesticide applicator. Respondents maintain the delay involved is intolerable and constitutes an erroneous exercise of discretion on the part of the Department Staff. Furthermore, they assert that such a delay is not normal, and without appropriate reason, is contrary to fundamental notions of fairness.
Clearly, the policy reasons supporting the ECL and its implementing regulations in 6 NYCRR must be weighed against the Respondents' private interests, among other factors, in determining what delay is reasonable. Here, the Department Staff made no effort to bring its case to fruition over a six year period following its identification of alleged pesticide violations by the Respondents.
The majority of the Department Staff's charges relate to alleged paperwork violations. While the Respondents' lack of records makes it impossible for the Staff to know precisely when and what actions were undertaken by Respondents, the Staff has not alleged gross negligence or improprieties in the actual application of pesticide chemicals to Respondents' fields or in the handling and storage of pesticides at Respondents farm. There is no allegation that the Respondents actions caused any threat to public health and safety or threatened degradation of the environment.
The public interest requires the Department to regulate the use and sale of pesticides in New York State, to ensure that pesticide applicators are properly certified and to enforce the reporting requirements as a means of monitoring pesticide sales and use within the State. In a perfect world, the Department Staff would be able to accomplish these tasks on a timely basis. Unfortunately, the passage of an extended period of time between the identification of alleged violations and the prosecution of same can undermine the Department's credibility and its ability to prevail in sustaining its burden of proof. However, a delay which is not unreasonable does not diminish the importance of the public interest served by the Department, so long as there is no evidence of prejudice to Respondents or compromise of their public interests.
- Summary Regarding "Delay"
In weighing, pursuant to the Cortlandt case, the factors related to the reasonableness of the delay involved in the Staff's bringing the charges in this matter, (1) Respondents' private interests have not been compromised; (2) Respondents suffered no actual prejudice; (3) the Department Staff was the sole cause of the delay; and (4) the public interest requires the Department Staff to prosecute persons who violate the pesticide law and regulations. In this instance, I do not find the delay to be unreasonable, and therefore, there are no grounds for dismissal on this issue.
Third Affirmative Defense
Respondents assert the Department is guilty of laches. As a separate basis for relief, the equitable doctrine of laches is unavailing, since it is well established that laches may not be interposed as a defense against the state when acting in a governmental capacity to enforce a public right or protect a public interest [see Cortlandt, 66 NY2d 169, at 177 (n.2) (1985)].
Fourth Affirmative Defense
Respondents assert the complaint is barred by the applicable statute or statutes of limitations. No dismissal is warranted on statute of limitations grounds. Statutes of limitations apply to "actions" under the CPLR. An administrative proceeding is not an action, and therefore, is not governed by any statute of limitations.
Fifth Affirmative Defense
Respondents assert the Department Staff knew or should have known that either one or both of the Respondents were authorized to purchase and apply chemical pesticides in connection with their agricultural operations. They further assert the Department Staff failed to notify either or both Respondents of the expiration of any pesticide permits. The evidence in this matter amply demonstrates that while the Department had no obligation to do so, it provided, and Respondent Conklin filled out on behalf of both Respondents, the renewal application forms for Respondents' Restricted Pesticides Commercial Permit. This affirmative defense is unfounded and provides no grounds for dismissal of the charges.
Sixth Affirmative Defense
Respondents assert the Department Staff engaged in selective enforcement of the pesticide laws and regulations against the Respondents, while not prosecuting other farmers who are or were similarly situated. The evidence in this proceeding indicates the Department Staff has presented the instant case strictly on its own merits. However, the issue of selective enforcement goes beyond the bounds of an administrative proceeding, and therefore, must be submitted to a judicial tribunal. [See DiMaggio v. Brown, 19 NY2d 283, 291-292, 279 NYS2d 161, 225 NE2d 871 (1967), also Bell v. New York State Liquor Authority, 367 NYS2d 875 (3d Dept. 1975).]
Seventh Affirmative Defense
Respondents assert the Department Staff is herein motivated by malice and a desire to put Respondents out of business, not for a lawful purpose. The evidence in this proceeding clearly shows that, on several occasions, Respondents did not fully comply with the pesticide law and regulations. The Department Staff has an obligation to ensure that pesticide applicators comply with the applicable laws and regulations. Otherwise, the issue of prosecutorial motivation is tied to that of selective enforcement and must be resolved in a judicial forum, not in this administrative proceeding. [See DiMaggio v. Brown as above.]
Eighth Affirmative Defense
Respondents assert the information gained by the Department Staff during the July 1985 inspection was obtained by artifice, with a promise by the Staff of assistance and no prosecution. Respondents assert the actions of the Staff were designed to entrap the Respondents. There is no evidence in this proceeding of an intent on the part of Staff to entrap the Respondents. The initial reason for the Staff's July 1985 inspection related to an unexplained discovery of the pesticide "Aldicarb" ("Temik") in the vicinity of Respondents' farm and was entirely unrelated to Respondents' specific compliance with the pesticide law and regulations. During the inspection the Staff identified several alleged violations and noted them on the inspection report form, which Respondent Conklin signed and then received a copy. Mr. Palmer testified that they then discussed the requirements for certification, record keeping and annual reports. This affirmative defense offers no grounds for dismissal.
Ninth Affirmative Defense
Respondents assert that the Department Staff, by prosecuting the Respondents, is violating the State policy to encourage agriculture. There is no evidence here that the Staff is discouraging agriculture. The Staff does, however, have an affirmative obligation to ensure that agricultural operations, where pesticides are used, are conducted in conformance with the pesticide law and regulations. This affirmative defense provides no grounds for dismissal.
Status of Respondents' Certification and Permits
There is ample testimony and evidence in the record of this proceeding to demonstrate that Respondents were confused regarding their certification status and record keeping requirements in the early to mid 1980's. When the Department Staff initially identified alleged violations regarding certification and record keeping in 1985, Respondent Conklin was under the impression that Staff would assist him in remedying whatever problems existed. While Respondents admittedly did not actively seek assistance from the Staff, if the Staff had pursued an enforcement action at that time, it is likely that Respondents would have been able to come into compliance with the ECL and 6 NYCRR. Also, had the 1985 potential violations been prosecuted on a timely basis, it unlikely Respondents would be facing the string of charges the Staff has now put together.
Respondent Conklin originally applied for and received from the Department both a Commercial Pesticide Applicator Certification and a Restricted Pesticides Commercial Permit. Respondent Conklin believed the "commercial" designations would allow him to purchase pesticides, which he intended to use in his own farming operations, at a lower price than if he was "just" a farmer.
A commercial certification authorizes a person to use or supervise the use of pesticides on property which he does not own or rent. Respondent Conklin never applied pesticides on any property which he did not own or was not renting. The commercial permit authorizes a person to distribute or sell restricted pesticides. Respondent Conklin never sold any of the pesticides which he purchased.
A private certification authorizes a person to use or supervise the use of restricted pesticides to produce agricultural commodities on property which the person owns or rents. Pursuant to 6 NYCRR 326.1(n), a private pesticide applicator certification identification card is a satisfactory alternative to a purchase permit which would allow a farmer to purchase and then use restricted pesticides on his own lands or lands which he rented.
Respondent Conklin, based on his uncontroverted testimony regarding his purchase and use of restricted pesticides, never needed a commercial certification or a commercial permit. All he needed to purchase and apply pesticides in conjunction with his potato growing operations on his own property or on lands which he rented was a Private Pesticide Applicator Certification. The private certification identification card would allow him to purchase the restricted pesticides, and the private certification would authorize his use of the pesticides for his farming operation.
Respondent Conklin obtained a Private Pesticide Applicator Certification in 1987, yet he still renewed his commercial permit through 1991. In addition to detailed record keeping, a commercial permit requires the permit holder to submit annual reports to the Department which show the restricted pesticide sales activities undertaken by the permit holder during the previous year. With the private certification only, Respondent Conklin is still required to keep detailed records of annual pesticide use, but is not required to submit annual reports to the Department.
- Respondent was certified by the Department as a commercial pesticide applicator, at least during the period April 21, 1978 through June 21, 1983. As a certified commercial pesticide applicator, Respondent Conklin was required to keep true and accurate records of his pesticide use activities for a minimum of three years. The Department's records regarding commercial pesticide applicators extend back to July 1984, and the Department Staff were unable to find any records pertaining to Respondent Conklin's Commercial Pesticide Applicator Certification, his certification identification number, or any certification identification card renewals for which he might have applied.
- By never applying pesticides to any properties other than his own or those which he was renting for his potato farming operations, Respondent Conklin was actually functioning as a private pesticide applicator. Therefore, he never needed certification as a commercial applicator, but rather, should have received certification as a private applicator. Nevertheless, as the holder of a Commercial Pesticide Applicator Certification, Respondent Conklin was still required to submit the annual reports pursuant to 6 NYCRR 325.25(b) and (c).
- The Staff testimony indicates the Department has records of commercial applicator annual reports at least back to 1980. A search of those records did not reveal any annual reports relating to Respondent Conklin's commercial applicator activities for the years 1980 through 1984. However, no mention was made during the hearing of annual reports for the years 1978 and 1979, leading me to conclude the Department may not have any records regarding commercial applicator annual reports for years preceding 1980.
- Based upon the Department Staff's search of their records, I conclude that the Department Staff presented a prima facie case regarding Respondent Conklin's failure to submit commercial applicator annual reports for at least the years 1980 through 1983, as alleged in the Penalty Assessment summary, Appendix "A". Therefore, Respondent Conklin violated 6 NYCRR 325.25(b) and (c) and ECL 33-0905(4) by not filing the annual reports for these four years. However, by not presenting any records or information to substantiate Respondent Conklin's activities or lack of activities regarding record keeping and annual reports in connection with his commercial applicator certification for the years 1978 and 1979, the Department Staff did not present a prima facie case to support the charges that Respondent Conklin failed to file commercial applicator annual reports in those two years, as alleged in the Complaint. Therefore, the charges relating to Respondent Conklin's failure to submit commercial applicator annual reports in 1978 and 1979 should be dismissed.
- Respondents received a Restricted Pesticides Commercial Permit on May 29, 1975. The commercial permit was renewed through at least February 28, 1991. Respondents never sold any pesticides as allowed by the commercial permit, and therefore, never really needed the commercial permit. Nevertheless, as the holders of a commercial permit, Respondents were required to maintain all records pertaining to acquisition, sales or disposal of restricted pesticides for a period of two years and were required to file an annual report showing total sales of all restricted substances not later than the fifteenth business day following the last day of the report's calendar year.
- The Department Staff has no records of commercial permit annual reports being received from Respondents for the years 1982, 1983, 1987, 1988, 1989, and 1990. With respect to allegations that Respondents did not submit commercial permit annual reports for 1982 and 1983, the Department Staff affidavit certifying that Respondents' 1982 and 1983 reports do not appear in the Department's records was not challenged by Respondents and therefore, constitutes a prima facie case concerning these charges. Respondents violated 6 NYCRR 326.10(b)(3)(ii) on two occasions by their failure to submit commercial permit annual reports for the years 1982 and 1983.
- For the years 1987 through 1990, Respondent Conklin claims his actions as a private applicator negated the need to submit commercial permit annual reports. Not so; while Respondent Conklin's private applicator certification removed his prior obligation to submit annual reports under his commercial applicator certification, Respondents still held a commercial permit in the years 1987 through 1990 and were obligated to make annual reports of sales of restricted substances, if only to report that none were sold. Respondent Conklin's failure to submit commercial permit annual reports for the years 1987 through 1990 constitute four separate violations of 6 NYCRR 326.10(b)(3)(ii).
- Respondents' 1984 commercial permit annual report was received on March 13, 1985, fifty (50) total days or thirty-five (35) business days past the due date of the fifteenth business day of 1985. Submitting such a report after the due date constitutes a violation of 6 NYCRR 326.10(b)(3)(ii).
- Respondents' 1984 commercial permit annual report of total sales of restricted substances was submitted on an incorrect form, "Registered Pesticide Business Annual Report - Pesticides Used," constituting a violation of 6 NYCRR 326.10(b)(3)(ii).
- Respondents' 1984 commercial permit annual report omitted the required EPA Registration Numbers for the formulations of "Sinox PE" and "Paraquat." Failure to include EPA Registration Numbers to properly identify the formulation of these two pesticides on the annual report form constitutes two violations of 6 NYCRR 326.10(b)(3)(ii).
- Respondents' 1985 commercial permit annual report was received on December 24, 1986, approximately eleven (11) months past the due date of the fifteenth business day of 1986. Submitting such a report after the due date constitutes a violation of 6 NYCRR 326.10(b)(3)(ii).
- Respondents' 1985 commercial permit annual report listed the product "Rotenox", EPA Registration No. 655-6A, in the "Quantity Sold" column on the report form. I conclude that Respondents erred in reporting sales of "Rotenox" in 1985, as Respondent Conklin testified that he never engaged in sales of any pesticides. The Department Staff did not offer any evidence to the contrary. I conclude that Respondents were actually and mistakenly using the commercial permit annual report to record their pesticide use in 1985. However, the pesticide "Rotenox" was not registered for sale or use in New York State in 1985. Either sale or use of an unregistered pesticide product constitutes a violation of ECL 33-0701 and 33-1301(1)(a).
- Respondents' 1986 commercial permit annual report listed the products "Endocide", EPA Registration No. 37404-68, and "Rotenox", EPA Registration No. 655-6A, as having been sold during 1986. I conclude that Respondents erred in reporting sales of "Endocide" and "Rotenox" in 1986. As noted in the prior conclusion, Respondent Conklin presented uncontroverted testimony that no sales of pesticides ever occurred. I conclude that Respondents were actually and mistakenly using the commercial permit annual report to record their pesticide use in 1986. However, neither "Endocide" nor "Rotenox" were registered for sale or use in New York State in 1986. Sale or use of unregistered pesticide products constitutes a violation of ECL 33-0701 and 33-1301(1)(a).
- All pesticides purchased by the Respondents were solely for their own use on lands owned or rented by them for their potato growing operations. Occasionally, unused quantities of pesticides were returned to the supplier(s). However, no sales of pesticides ever occurred.
- The pesticides listed on the form submitted as Respondents' 1984 commercial permit annual report, see above Conclusion No. 8, were purchased for use in Respondents' farming operations. The incorrect form submitted by Respondent Conklin for 1984, "Registered Pesticide Business Annual Report - Pesticides Used," includes a column "Quantity Used," which is where Respondent Conklin entered the quantities of the pesticides which he used in 1984. The correct commercial permit annual report form, "Restricted Pesticides Annual Report," is designed to report total sales of restricted substances and includes a column "Quantity Sold." When Respondent Conklin filled out the correct forms for the years 1985 and 1986, he listed various pesticides and entered various quantities in the column "Quantity Sold." However, his testimony is clear that he never engaged in sales of pesticides. During the time Respondent Conklin was a certified commercial applicator, the correct form for him to have reported use of pesticides is "Commercial Certified Applicators Annual Report - Pesticides Used." I conclude that Respondents were confused in filling out the commercial permit annual report forms and did not understand the differences among the various forms to be submitted for commercial applicators, commercial permit holders and registered businesses. Although repetitious, I again conclude that with the proper and correct certification as a private pesticide applicator, Respondent Conklin would not have been required to submit any of the above mentioned annual reporting forms.
- Respondent Conklin's Commercial Pesticide Applicator Certification expired on June 21, 1983. Respondent Conklin believed the courses he had taken qualified him for recertification, and in fact, he believed that by taking these courses his certification to apply pesticides in his farming operations was intact even after the expiration date of his commercial applicator certificate. It is possible that the courses which Respondent Conklin had taken were sufficient to qualify him for recertification. However, he never pursued the recertification issue with the Department Staff. Therefore, Respondent Conklin was not certified to apply pesticides or supervise the application of pesticides in the Respondents' farming operations after June 21, 1983 expiration of his commercial applicator certification and until he obtained certification as a private pesticide applicator after passing the requisite examination on April 22, 1987.
- When Mr. Palmer conducted an inspection of Respondents' operations on July 1, 1985, Respondent Conklin acknowledged that he had used restricted pesticides in the Respondents' farming operations over the past several years. Mr. Palmer determined that Respondent Conklin was acting as a private applicator in using restricted pesticides on his farm. At that time Respondent Conklin was unable to produce any records relating to his application of restricted use pesticides on his potato fields for the years 1983 and 1984. Failure to maintain complete and accurate 1983 and 1984 records of restricted use pesticides, and of the method and dates of their application for the required three year period constitutes two violations of ECL 33-0905(4) and either 6 NYCRR 325.25(a) and (c) as a commercial applicator, prior to June 21, 1983, or 6 NYCRR 325.44 as a private applicator, after June 21, 1983.
- Mr. Palmer attempted, via a telephone conversation with Respondent Conklin on September 3, 1986, to schedule a follow-up to the July 1, 1985 inspection. Respondent Conklin did not refuse the follow-up inspection. He merely asked if the inspection could be postponed for a month or two, as he was busy with the potato harvest in September. Mr. Palmer never attempted to reschedule the inspection in the fall of 1986, nor did he ever go back to Respondents' farm to observe the operation and look at Respondents' records again. The Department Staff's charge that Respondent Conklin failed to make records available upon the request of the Department's inspector is not supported by the record in this case. I conclude Respondents did not violate the ECL or 6 NYCRR by requesting a postponement of the inspection until later in the fall of 1986.
- During the July 1, 1985 inspection and in a letter dated October 4, 1985, Mr. Palmer advised Respondent Conklin that in addition to alleged violations for record keeping deficiencies, it was also a violation of the ECL and 6 NYCRR to engage in private application of restricted pesticides without possessing valid certification. Respondent Conklin admitted during the July 1, 1985 inspection and in the September 3, 1986 phone call with Mr. Palmer that he was using restricted pesticides in the Respondents' farming operations. During the September 3, 1986 phone conversation with Mr. Palmer, Respondent Conklin also admitted that he had been unable to obtain certification yet.
- Respondent Conklin acknowledged by his hand-written record of pesticide applications prepared in Mr. Palmer's presence on July 1, 1985 that he had applied the restricted pesticide "Monitor" on June 25, 1985, at a time when he was not certified to apply or supervise the application of restricted pesticides. Respondent Conklin violated ECL 33-0905(1) and 33-1301(8) and 6 NYCRR 325.37(a) by engaging in the private application of restricted pesticides without having a valid certification.
- The pesticide application instruction sheet for Ben Conklin which Respondent Conklin sent to Mr. Palmer in September 1986 indicated the restricted pesticide "Monitor" was to be applied in the Respondents' potato growing operations during the time frame July 7-11, 1986 and August 4-8, 1986. These instructions to Respondent Conklin's brother were given at a time when Respondent Conklin knew he did not possess a valid pesticide applicator certification, either commercial or private, and when he knew it was a violation to apply or supervise the application of restricted pesticides without a valid certification. Respondent Conklin did not deny that "Monitor" had been applied in Respondents' farming operations in 1986, and further testified that, as a general practice, "Monitor" would have been applied on one day within the July 7-11, 1986 period and on one day during the August 4-8, 1986 period. Therefore, Respondent Conklin willfully violated ECL 33-0905(1) and 33-1301(8) and 6 NYCRR 325.37(a) on at least two separate occasions during 1986. There is no evidence to support the Staff's allegations that Respondent Conklin committed such violations on each and every day during the July 7-11 and August 4-8, 1986 time frames.
The Penalties Sought
In this instance, the Department Staff has requested the imposition of penalties in the amount of $261,400, as well as revocation of Respondent Conklin's Private Pesticide Applicator Certification. The Staff recommended in its closing brief that if its revocation request is upheld, then the payable amount of the penalty should be $100,000, with $161,000 suspended to ensure compliance with the revocation.
Respondents argue that the Department Staff has impermissibly treated all alleged violations, save for one, as subsequent offenses. Respondents note that they have never been charged with a violation prior to September 26, 1991, and therefore, there is no predicate "first violation." Thus, they argue that if any violations are found, only a first offense penalty can be levied against Respondents. Further, Respondents state the multiple charges against them in a single complaint are only an attempt by the Department Staff to "kite-up" penalties to an astronomical sum. They contend that, basically, there are only two allegations against the Respondents: application of pesticides after the "technical" lapse of Respondent Conklin's certification and filing/non-filing of reports as a commercial permit holder. Therefore, Respondents contend they may be charged with only one or, at most, two offenses.
ECL 71-2907 states, "Any person who violates any provision of Article 33 of this chapter or any rule, regulation or order issued thereunder or commits any offense described in section 33-1301 of this chapter shall be liable to the people of the state for a civil penalty not to exceed five thousand dollars for a first violation, and not to exceed ten thousand dollars for a subsequent offense . . .". In this instance, the Department Staff has interpreted this section to mean any offense after an initial violation may be considered a second offense and may subject the alleged violator to an additional penalty of up to $10,000 (over and above the penalty of up to $5,000 which may be assessed for the first violation). (Note that prior to July 25, 1983, penalties for pesticide violations were not less than $50 nor more than $200 for a first violation and not more than $400 for the second and each subsequent violations.)
Here, the Staff has considered an alleged violation in the late 1970's or 1980 as the first violation, and all allegations after that constitute subsequent offenses. The Department Staff, in calculating the amount of penalty they deem appropriate, has chosen to request the maximum amount per separate violation which could be assessed under ECL 71-2907, i.e. - after the initial alleged violation, which Staff alleged to have occurred prior to July 25, 1983, with a requested penalty of $200, the Staff seeks the maximum allowable penalty, either $400 or $10,000 for all subsequent alleged violations (see Appendix "A"). It is noted, however, that Staff is not seeking per day or per container penalties which could potentially drive the total penalty even higher.
On January 20, 1987, the Department promulgated a Pesticide Enforcement Guidance Memorandum (the "PEG") which established the policies and procedures by which the Department of Environmental Conservation is to insist upon compliance with New York State law, regulations and permits governing pesticides. (This Pesticide Enforcement Guidance Memorandum was recently revised and was reissued upon signature by the Commissioner on March 26, 1993. Since all alleged violations occurred, and the hearing record closed, prior to the reissuance of this document, only the original January 20, 1987 memorandum is referenced in this Hearing Report.)
The PEG states that in addition to protecting the public interest, health and the environment, "Enforcement is also necessary for legal and economic reasons. Equitable enforcement of the pesticide law promotes the interests of fairness in our society and deters violations of law." To ensure that pesticides are properly used, "[A] regulatory scheme has been established to promote compliance with pesticide law. Where compliance is not forthcoming, enforcement action must be taken to compel compliance and to penalize improper conduct."
The PEG further states, "[A]s a practical matter, DEC should endeavor consistently to obtain the greatest environmental benefit from the expenditure of its finite resources and gauge its use of enforcement powers accordingly.
In this context, the PEG lists four circumstances where DEC enforcement personnel must seek assessment of payable penalties and other sanctions:
- Where a business or individual persistently engages in willful, bad faith, or negligent conduct that results in violation, punitive penalties must be sought.
- Where a business or individual gains economic advantage by non-compliance while failing to take responsible steps towards compliance, a penalty related to the size of the unlawful economic benefit must be sought.
- Where tangible public health and/or environmental damages are detected, e.g. - misapplication(s) of pesticides which result in injury to persons, property or environment, a penalty must be sought. The amount of the payable penalty should be related to the size of the damage and the culpability of the respondent. NOTE: Culpability is not a pre-requisite to assessment of a penalty.
- Where substantial administrative or judicial efforts are required to bring a business into compliance with well-defined legal obligations, a penalty must be sought which is related to these costs.
The PEG also categorizes violations/potential violations in a three-tiered system to establish priorities among categories of violations and also priorities within each category of violations:
Highest Priority Violations - Tier #1:
- Violations to be resolved expeditiously -
- Violations which are of an emergency nature.
- Unlawful pesticide use which may result in short or long term human injury.
- Unlawful pesticide use which results in exposure of individuals directly contrary to product label instructions.
- Unlawful pesticide use which results in significant or potentially significant environmental harm.
High Priority Violations - Tier #2:
- Resolve as soon as practicable -
- Unlawful pesticide use which results in property damage.
- Violations involving the illegal sale, offer for sale, purchase or possession of restricted use pesticides.
- Violations regarding restricted use pesticide registration.
- Violations of certification or business registration requirements.
- Tier 3 violations where responsible parties received warning(s) or were subject to prior enforcement for a similar violation.
Secondary Priority Violations - Tier #3:
- Resolve as soon as practicable -
- Recordkeeping violations.
- Use contrary to product label instructions of general use pesticides which does not involve property damage.
- Sale of unregistered general use pesticide products.
- All other violations.
Two goals of pesticide enforcement are to remove any economic gain which has been accrued by non-compliance and to eliminate repeat violators. The penalty provisions of the ECL provide for a doubling of the maximum penalty where a respondent has previously committed pesticide violations. Additionally, the PEG directs Staff to screen all records, including prior violations to see if suspension or revocation of registrations, certification and permits should be considered because of conduct indicative of disregard for health, safety and environmental protection, as well as perjury and fraud.
Lastly, the PEG must be read in concert with the Department's Civil Penalty Policy (the "CPP") dated June 20, 1990 to calculate the benefit and gravity components of an assessable penalty. The CPP notes that removal of the economic benefit of non-compliance merely evens the score between violators and those who comply with the law, regulations, and their permit requirements. The CPP discusses several factors reflecting the seriousness of the violations which must be considered to calculate the gravity component of a penalty.
The key factors of the gravity component are: (a) potential harm and actual damage caused by the violation, and (b) relative importance of the type of violation in the regulatory scheme. Once a preliminary gravity component is developed, it may be adjusted by: (a) culpability, (b) violator cooperation, (c) history of non-compliance, (d) ability to pay, and (e) any unanticipated unique factors.
With respect to the circumstances under which penalties are warranted, in this instance Respondents did, on several occasions, engage in willful conduct in violation of the pesticide law and regulations. They did not receive any significant additional gain for their non-compliance, than they would have if they had been in full compliance. Only the certification/renewal fee of $15 per year for the four years Respondent Conklin was not certified figures into the economic benefit calculation. He was eligible to be certified during those four years, and likely would have been certified, had he submitted the required application and taken the examination for private certification. There were significant administrative efforts expended by Department Staff to bring Respondents into compliance via the administrative enforcement hearing route.
In this case the gravity component is the only significant factor in the penalty calculation, as the Staff has not alleged that Respondents received any economic benefit for their non-compliance. Nor has the Staff alleged any potential harm or actual damage to public health or the environment through Respondents' actions in this complaint. Therefore, the penalty to be assessed the Respondents in this case hinges on the importance of the violations to the overall regulatory scheme of the Department.
In the instant case, the violations committed by Respondents fall into two general categories: (a) product registration offenses, i.e. - record keeping/report filing failures, and (b) applicator and use offenses, i.e. - lack of certification. These violations fall within Tier #2 above, i.e. - registration, certification and record keeping items, for some of which the Respondents had received warnings.
I have concluded that the charges regarding failure to submit commercial applicator annual reports from 1978 and 1979 should be dismissed. That makes the earliest of the Department Staff's charges which were upheld on the basis of this record Respondent Conklin's failure to submit commercial applicator annual reports for 1980 through 1983 and Respondents' failure to submit commercial permit annual reports for 1982 and 1983. The 1980 through 1982 violations should be assessed a penalty based on the previous version of ECL 71-2907. As a first violation, it is appropriate to assess a penalty of $200 for the 1980 failure to submit a commercial applicator annual report = $200. As three subsequent offenses, the 1981 and 1982 failure to submit commercial applicator annual reports and the 1982 failure to submit a commercial permit annual report should be assessed penalties of $400 each = $1,200. The 1983 violations of failure to submit both a commercial applicator annual report and commercial permit annual report occurred after ECL 71-2907 was amended to include higher penalties. The two 1983 violations should be assessed a penalty of $1,000 each = $2,000; total for all six of these violations = $3,400.
Respondents failed to accurately maintain records of restricted use pesticides and the method and dates of their application during the years 1983 and 1984. A penalty of $2,500 should be assessed for each of the two violations = $5,000.
The next violations, chronologically, relate to the filing of the 1984 commercial permit annual report which was submitted 35 business days late, was submitted on the wrong form, and lacked the EPA Registration Number for two of the listed pesticides. These failings technically constitute four separate violations, for which the Staff seeks $40,000 in penalties. I believe the penalty requested by Staff is totally unreasonable, particularly since Respondents had not even engaged in pesticide sales, but thought the form was appropriate to report the pesticides they had used during 1984. Although they did not need a commercial permit for their operations, Respondents, as commercial permit holders, had the obligation to know what forms to use, what information to report and when to report it. A total penalty of $1,000 should be assessed = $1,000.
The next violations relate to the filing of the 1985 commercial permit annual report which was submitted eleven months late, and incorrectly listed a non-registered pesticide has having been sold in 1985. Respondents did not engage in sales of pesticides, and were using the annual report to show the pesticides they had used in 1985. The Staff seeks a $20,000 penalty, which I again believe is unreasonable. A penalty of $1,000 should be assessed for the reporting violation, and a penalty of $2,500 should be assessed for use of a non-registered pesticide = $3,500.
The next record keeping violations relate to the 1986 commercial permit annual report which listed a two non-registered pesticides as having been sold in 1986. Again, Respondents were using this form to report the pesticides used during 1986. The Staff requested a $10,000 penalty for this violation, which I again believe is unreasonable. A penalty of $2,500 for each use of a non-registered pesticide should be assessed = $5,000.
Since Respondents did not refuse an inspection in September 1986, but merely asked for a postponement, and since the Department Staff did not seek to reschedule the inspection or follow-up in any way until five years later, I have concluded the charge of failure to make records available to the Department's inspector on or about September 3, 1986 should be dismissed.
The next record keeping violations relate to Respondents' failure to submit commercial permit annual reports for the years 1987 through 1990. Respondent Conklin held certification as a private applicator during this time period. Private applicators are not required to submit annual reports to the Department. However, as commercial permit holders, Respondents were still obligated to file annual reports, even if only to report that no sales of restricted pesticides had occurred in each of these four years. The Staff seeks $40,000 for the four violations. I believe this penalty to be excessive. A penalty of $1,000 per violation should be assessed = $4,000.
The most serious violations relate to the application of restricted pesticides during a time when Respondent Conklin was not certified as either a commercial or a private applicator. The first of these occasions cited by the Department Staff in the complaint occurred only days before the July 1, 1985 inspection. Respondent Conklin, although he believed he was still certified, was at the time of the inspection advised by the Staff that, in fact, he was not certified, and that until he received certification as a private applicator, he should cease application of restricted pesticides in his farming operation.
The July 1, 1985 verbal warning from Staff was followed by a letter warning on October 4, 1985. Yet, on September 3, 1986, Respondent Conklin acknowledged to Staff that he was still using restricted pesticides and that he had been unable to get his certification. Respondent Conklin had ample knowledge of the requirements for certification and ample time to obtain certification following even the October 4, 1985 letter before he had to begin using pesticides in the 1986 crop season.
Staff seeks $100,000 in penalties for these violations. While these are the most egregious violations committed by Respondents, there is no proof in the record that application of restricted pesticides actually occurred on ten separate occasions in 1985 and 1986. In this instance, it is appropriate to assess $5,000 for the 1985 violation. Since Respondent Conklin acknowledged during the hearing that application of restricted pesticides had occurred on at least two days during 1986, it is appropriate to assess a penalty of $10,000 for each of these occasions = $5,000 for 1985 and $20,000 for 1986 = $25,000.
The total of the above recommended penalties = $46,900.
- I recommend dismissal of charges related to: failure to submit commercial applicator annual reports from 1978 and 1979 and failure to make records available to the Department inspector on or about September 3, 1986.
- I recommend that the charges relating to violation of the pesticide law and regulations be confirmed with respect to: private application of restricted pesticides without proper applicator certification on at least three occasions in 1985 and 1986; failure to maintain complete pesticide application and use records in 1983 and 1984; late filing of 1984 and 1985 commercial permit annual reports; use of non-New York State registered pesticides in 1985 and 1986; failure to file 1984 commercial permit annual report on correct form; failure to enter EPA Registration Numbers for two products on 1984 commercial permit annual report; failure to file commercial applicator annual reports in 1980, 1981, 1982 and 1983; and failure to file commercial permit annual reports in 1982, 1983, 1987, 1988, 1989, and 1990.
- I recommend Respondents be assessed a payable penalty in the total amount of $46,900 for the violations described in the above Conclusions and Discussion sections of this Report.
- I do not recommend suspension of Respondent Conklin's private pesticide applicator certification.