Mudd's Vineyard Ltd. - Decision and Order, January 19, 1999

Decision and Order, January 19, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 33 of the New York State Environmental Conservation Law and Parts 325 and 326 of Title 6 of the New York Compilation of Codes, Rules, and Regulations,

by

MUDD'S VINEYARD, LTD., DAVID MUDD, and
STEPHEN MUDD
Respondents.

Case No. D1-0003-9708

DECISION and ORDER^*

WHEREAS:

1. Pursuant to a Notice of Hearing and Complaint dated October 20, 1997 and duly served upon respondents Mudd's Vineyard, Ltd., David Mudd, and Stephen Mudd, an enforcement hearing was held before Administrative Law Judge Helene G. Goldberger (ALJ) on September 23-24, 1994. The record was closed on November 10, 1998 upon the receipt of the parties' post-hearing reply briefs. The Department of Environmental Conservation (DEC) staff was represented by attorneys Victor Gallo and Mitchell Khosrova and Eric Bressler, Esq. of Wickham, Wickham & Bressler, P.C. represented the respondents.
2. Upon review of the ALJ's hearing report (copy attached) and the record of the proceeding, I adopt the ALJ's finding of fact, conclusion, and recommendations.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

1. The respondents Mudd's Vineyard, Ltd. and Stephen Mudd are liable for a violation of Environmental Conservation Law (ECL) § 33-1301(1)(a) for use of an unregistered pesticide.
2. Respondents Mudd's Vineyard, Ltd. and Stephen Mudd are assessed a civil penalty in the amount of TWO THOUSAND DOLLARS ($2,000), of which FIVE HUNDRED DOLLARS ($500) is payable to the Department within thirty (30) days of the date of this Order. The balance of FIFTEEN HUNDRED DOLLARS ($1500) is suspended provided respondents comply with the balance of this Order.
3. In the event that that Mudd's is found to have used an unregistered pesticide in violation of Article 33 of the ECL over the next twelve months, Mudd's will immediately pay the Department FIFTEEN HUNDRED DOLLARS ($1500), the suspended portion of the penalty, and will be subject to further enforcement proceedings at the discretion of the Department's regional staff.
4. Staff's allegations contained in the complaint's second cause of action are dismissed.
5. Charges against David Mudd, president of Mudd's Vineyard, Ltd., in his personal capacity are dismissed.
6. All communications between respondents and DEC concerning this Order shall be made to the Department's Region 1 Director, SUNY Campus, Loop Road, Building 40, Stony Brook, NY 11790-2356.
7. The provisions, terms, and conditions of this Order shall bind respondents their officers, directors, agents, servants, employees, successors and assigns, and all persons, firms, and corporations acting for on behalf of the respondents.

For the New York State Department of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

DATED: Albany, New York
January 19, 1999

TO:
Eric Bressler, Esq.
Wickham, Wickham & Bressler, P.C.
Main Road, P.O. Box 1424
Mattituck, NY 11952

Mudd's Vineyard, Ltd.
David Mudd
Stephen Mudd
County Road 48
Southold, NY 11971

Victor Gallo, Esq.
Mitchell Khosrova, Esq.
Department of Environmental Conservation
Division of Environmental Enforcement
50 Wolf Road
Albany, NY 12233-5500

^* [Note: The violations determined in this decision and order were resolved to the satisfaction of the Department of Environmental Conservation, and the respondent continues to maintain a pesticide certification which allows him to operate as a commercial pesticide applicator in good standing with this Department.]

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550 In the Matter of

the Alleged Violations of Article 33 of the New York State Environmental Conservation Law
and Parts 325 and 326 of Title 6 of the New York Compilation of Codes, Rulesand Regulations, by

MUDD'S VINEYARD, LTD.,
DAVID MUDD, AND
STEPHEN MUDD

DEC No. D1-0003-9708

Hearing Report

-by-

/s/
Helene G. Goldberger
Administrative Law Judge

PROCEEDINGS

Pursuant to a Notice of Hearing and Complaint, dated October 20, 1997, issued by New York State Department of Environmental Conservation (DEC or Department) staff against Mudd's Vineyard, Ltd., David Mudd, and Stephen Mudd (collectively, Mudd's herein), an administrative enforcement hearing was convened before me on September 23 and 24, 1998 at the Division of Marine Resources' office of the Department, 205 Belle Meade Road, East Setauket, New York. Assistant Counsels Victor J. Gallo and Mitchell Khosrova of the Department's Division of Legal Affairs in Albany represented the Department staff and Eric Bressler, Esq. of Wickham, Wickham, & Bressler, P.C. of Melville, New York represented the respondents.

The complaint alleges violations of Environmental Conservation Law (ECL) Article 33 and Parts 325 and 326 of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR) based upon staff's claims that respondents used unregistered pesticides on their premises. There has been extensive motion practice in the course of this proceeding relating to respondents' motion to dismiss and for a more definite statement, discovery demands, requests for protective orders, and staff's motion to dismiss the Mudd's affirmative defenses. Rulings were issued by ALJ Buhrmaster and by me on November 18, 1997, January 22, 1998, February 27, 1998, March 20, 1998, and April 22, 1998. In summary, due to faulty service, staff agreed to re-serve the complaint, ALJ Buhrmaster denied respondents' motion for a more definite statement and limited the parties' discovery demands. In addition, I ruled that respondents' fourth, fifth, and sixth affirmative defenses were dismissed and limited their first affirmative defense.

During our conference call held on April 28, 1998, the parties agreed with me that the hearing would go forward on June 16-18, 1998. However, due to subsequent requests and agreements of the parties, the hearing was rescheduled twice before it proceeded on September 23. At the outset of the hearing on September 23, staff moved to amend its complaint based upon its claim that an error resulted in the incorrect identification in the complaint of the pesticide used by the respondents on July 15, 1995. The respondents objected and I denied staff's request based upon two grounds. On March 7, 1996, the Appellate Division, Second Department dismissed a lawsuit brought by Mudd's against the Department based upon a stipulation executed by the parties. In this stipulation dated February 21, 1996, DEC agreed to settle all claims then pending against respondents except two notices of violation (NOV's) dated January 24 and 26, 1996 that allege violations of ECL § 33-1301(1)(a). In these NOV's, (hearing exhibits 6 and 7), staff alleges violations based upon the use of Microflo Captan and Captan 4 Flowable, on July 14, 1995 by Stanley Luberski and Steve Mudd, respectively. Staff claimed at the hearing that identification of Captan 4 Flowable was in error and therefore, it wished to amend the complaint to reflect that the alleged improper use by was limited to Microflo Captan on July 14 and 15, 1995. However, because the stipulation limited the staff's actions to the violations noted in the specific NOV's, I determined it was not appropriate to allow the amendment. In addition, since this alleged error was discernable to staff at any time prior to the hearing, it was inappropriate to amend the complaint as the hearing was beginning.

The staff then requested that respondents stipulate to the service of the notice of hearing and complaint and also to the corporate status of Mudd's Vineyard, Ltd. Respondents declined to stipulate to either matter. Staff also requested that I take official notice of the 1994 Commissioner's order and hearing report concerning Mudd's. With respect to service, respondents claimed at the hearing that the affidavits of service annexed to the "green" certified mail receipts were faulty and on this basis, there could be no proof of proper service. Attorney Bressler pointed to the date of September 29, 1997 that is indicated on the bottom of the affidavit of mail service for respondent David Mudd and also noted that the affiant failed to state when she mailed the notice of hearing. Staff agreed that the date of September 29, 1997 was in error (the conference at which staff agreed to re-serve its complaint based upon faulty service took place after this date). However, attorney Gallo noted that it was a mistake as indicated by the other two affidavits that contain the date of October 29, 1997, when Gallo states he notarized all three affidavits. As a result of Mr. Gallo's explanation, I agreed that the proof of service appeared sufficient and we would proceed.⁽¹⁾

With respect to staff's request that respondents stipulate to the status of the corporate entity, I directed staff to provide this information through a witness in the event that it deemed it necessary. I declined to accept a document offered by staff by counsel regarding this issue. As to the 1994 Commissioner's order and hearing report, I stated that I had already read this prior determination and report and there was no need to make any special ruling regarding their status - prior decisions are considered precedent to the extent they have any relevancy.

The last preliminary matter raised by the parties was the objection by respondents with respect to the statement of readiness. Section 622.9 of 6 NYCRR provides that a case be placed on the calendar through the filing of a statement of readiness with the Office of Hearings. The regulation sets forth the content of this statement, the direction that an ALJ be assigned to hear the case and set a hearing date upon receipt of the statement, and that the ALJ will notify the parties of the date, time, and location of the hearing and the penalty of default and waiver should a party not appear at the hearing. While attorney Gallo did send such a notice dated September 21, 1998, respondents were not satisfied that it met the letter of the regulations and also complained that the ALJ did not send a notification with the default warning to the parties. Section 622.9(c) states that "[t]he accuracy and sufficiency of the statement of readiness will not be a subject to motion practice or any form of adjudication." In addition, staff's notice met the basic requirements of this section. Finally, respondents received several notifications from this office concerning the time, date, and place of the hearing. While the default statement did not appear in those communications, given respondents' representation by counsel and the formal manner in which requests for adjournments were handled, the consequences of failure to appear were apparent to all. Accordingly, I overruled this objection by respondents and the hearing proceeded.

After testimony and receipt of evidence concluded on September 24, 1998, the respondent requested additional time to submit post-hearing briefs. Accordingly, we agreed that the parties were to submit simultaneous closing briefs by October 30, 1998 and reply briefs by November 6, 1998.

Department Charges

According to the Department staff, Mudd's Vineyard is a New York State corporation doing business in Southold, New York and David and Stephen Mudd are officers of this entity. Staff alleges that these respondents violated ECL § 33-1301(1)(a) by using an unregistered pesticide Microflo Captan (EPA Reg. No. 476-1819-51036) on their property located on Route 48 in Southold.⁽²⁾ Staff argues that respondents are jointly and severally liable for this violation and because the statute requires no intent be proven, they are strictly liable for their actions. Staff argues that these proceedings are not about the specific pesticide but rather about maintaining the integrity of New York's registration system. Staff stressed that the Legislature in enacting the relevant law understood that New York had its own needs apart from the federal mandates. Staff further argued that the existence of Long Island's sole source aquifer gave special meaning to the charges subject to this proceeding. Moreover, staff maintains that the respondents were not cooperative during their investigation of the facility and this hearing due to their failure to comply with subpoenas served by staff.

Relief Requested

In its complaint, the staff request that the Commissioner issue an order finding that the respondents violated the ECL and regulations; impose a civil penalty upon respondents, jointly and severally, in the amount of $4,000.00; and direct respondents to cease and desist from all future violations of the ECL and regulations promulgated pursuant thereto.

Respondents' Position

Without admitting to any of the staff's contentions, respondents argue that there is no basis to find a violation because the purchaser of an EPA-registered pesticide in a New York establishment would have no readily available means to ascertain whether the product is registered with New York State at the time of purchase or at the time it is applied. Respondents claim that they were cooperative with the Department at the time of the inspection and that staff did not give any indication of a violation until 6 months after the visit. The respondents also maintain that because the NOV identifies Stanley Luberski (an employee of Mudd's), as the violator, the staff has not established a violation against the respondents. Respondents also contend that there has been no proof that they allowed the use of the product or that "allowing a use", as set forth in the complaint is a violation of ECL § 33-1301(1). In their reply brief, respondents also argue that staff failed to put forward any evidence regarding the identity and use of the substance in issue - Microflo Captan 476-1918-51036. In addition, the Mudd's argue that the active ingredient (Captan) in the pesticide it is alleged that they improperly used is readily available in many products that have been and are currently registered with New York DEC. Hence, Mudd's maintains that the regulation is unfair, staff has failed to produce any proof of environmental harm, and therefore, the respondents should not be found to have violated the law. Moreover, Mudd's alludes to other litigation between the Department and the respondents during the time of the inspection that gave rise to these allegations as the true motivation by staff for bringing these charges.⁽³⁾

Witnesses for the Parties

Paul Clemente, a pesticide control specialist, assigned to DEC's Region 1 offices, Stephen Mudd, an officer and employee of respondent Mudd's Vineyard, Ltd., and Jeanine Broughel, a chemist in DEC's pesticide product registration unit in Albany, testified on behalf of staff.⁽⁴⁾ Stephen Mudd and Cornell Cooperative Extension Agriculture Department Director William Sanok testified for respondents. Mr. Sanok was summoned to the hearing by respondents' subpoena.

Prior to the hearing, on September 22, staff arranged for a conference call with staff counsel Gallo, attorney Bressler, and me. Staff complained in that call that Mr. Bressler had informed counsel that there would not be compliance with five subpoenas duces tecum and testificandum served by staff on the respondents or third party witnesses such as an employee of Mudd's. Although respondents never moved to quash the subpoenas pursuant to 6 NYCRR § 622.7(d), Mr. Bressler explained that because the subpoenas did not contain a notice regarding the ALJ's powers to quash or modify a subpoena required by this same regulation, they were defective. I determined that the subpoenas were valid; however, respondents' counsel indicated he was preserving his rights to defend against these subpoenas in a different forum. At the hearing, attorney Gallo raised the issue of respondents' noncompliance with the subpoenas again and I stated that if staff determined that the presence of Mudd's employee Luberski was necessary to its case, a petition in Supreme Court would be necessary since I did not have contempt powers. Mr. Stephen Mudd was available at the hearing; however, issues remained concerning respondents' failure to produce certain documents. The issue of respondents' production of a W-4 form for an employee of Mudd's, Stanley Luberski, was resolved through the testimony of Stephen Mudd and Mr. Clemente that confirmed the employment of Mr. Luberski by Mudd's. With respect to another document, staff had requested the original but I determined that a copy would suffice. Staff did not pursue argument on any other issue concerning the subpoenas in this proceeding although it seeks to use respondents' resistence to these as further support for their requested penalties.

Exhibits

Between them, the parties offered 14 exhibits of which I accepted eleven into evidence. In addition to the Broughel affidavit, I declined to accept a product label for Microflo WP 50 Captan (marked as exhibit 12 for identification) and a list of pesticide products containing Captan that respondents alleged was generated by the Department (marked as exhibit 13 for identification). I sustained the staff's objection to the admission of the label based upon a lack of relevance to these proceedings. The product label produced did not match the description of the product that staff determined was used by Mudd's on July 14 according to the respondents' records. Regarding the list, I sustained staff's objections because although this document may indicate that there are many different formulations that employ Captan and which are registered with DEC, the product at issue was not. Secondarily, although Stephen Mudd testified that he obtained this document from DEC personnel, there was no indication on it that it was in fact generated by the Department.

FINDINGS OF FACT

1. Respondent Stephen Mudd is an officer and manager of Mudd's Vineyard, Ltd. located on Route 48 in Southold, New York. Among other duties, Mr. Mudd is responsible for the application of pesticides at Mudd's.
2. Respondent David Mudd is the president of Mudd's Vineyard, Ltd. and Stephen Mudd's father.
3. Stanley Luberski is an employee of Mudd's Vineyard, Ltd.
4. In early July of 1995, Paul Clemente, a pesticide control specialist in DEC's Region 1 office, received a telephone complaint from a neighbor of the Mudd's that the respondents had caused overdrift of a pesticide onto their property.
5. On July 25, 1995, Mr. Clemente and another DEC staff person, Ken Barnett visited the complainant's property and noted that the owner of adjacent lands surrounding the complainant's land was Mudd's Vineyard, Ltd. Clemente and Barnett next drove to Mudd's Vineyard where they met Stephen Mudd.
6. At the time of this visit, Stephen Mudd was engaged in repairing some vineyard equipment with an individual who had come from France to assist in this work. After the DEC employees served notice of the inspection, Mr. Mudd explained that he could not have an inspection at this time because he had to complete the work and drive the French consultant back to JFK airport that afternoon. Mr. Mudd also stated that he needed his attorney present and that they would need to reschedule the inspection. It was agreed that the DEC inspectors would return on July 27 at 2 p.m.
7. On July 27, 1995, Mr. Clemente returned for the inspection and when he arrived he noted the presence of two reporters and Mr. Stephen Mudd's wife. In addition, attorney Bressler was also present as well as David Mudd. Mr. Bressler advised the respondents to limit their responses to the staff's questions to matters concerning the Worker Protection Standard inspection. While the inspection was precipitated by the overdrift complaint, the staff noted on its notices of inspection (exhibits 3 and 4) that among other things, respondents' compliance with this new standard was at issue.
8. As part of the July 27 inspection, Mr. Clemente made observations regarding Mudd's provision of information for workers, identification of hazardous materials, and respondents' records of use of pesticides for the previous thirty days. He also inspected the filtering unit. Based upon notes of respondents' daily use records provided for inspection by Mudd's that indicate aspects of pesticide usage from June 30 - July 23, 1995, Mr. Clemente prepared a chart. This chart (exhibit 5) indicates the date, time, crop, location, trade name, active ingredient, EPA registration number, acres treated, total amount of pesticide used, the applicator, and the period that must elapse prior to reentry to the particular treated field known as the restricted entry interval (REI).
9. Staff did not find any violations of the Worker Protection Standard resulting from this inspection. In addition, staff did not note anything about the neighbor's complaints on the notice of inspection nor did they indicate to the Mudd's that there was a violation relative to that application. And, while aspects of the inspection were circumscribed based upon the advice of counsel, staff did not attempt to perform a further inspection nor did it advise Mudd's of any problems with their operation except for and until the service of the Notices of Violation (NOV's) as noted below.
10. As a result of his review of the EPA registration numbers that he obtained from the respondents' daily use records, Mr. Clemente checked with Albany to determine if the pesticides indicated on the daily use records were registered in New York State pursuant to Article 33 of the ECL. As a result of this investigation, Mr. Clemente found that the Captan product registered with EPA as 476-1819-51036 and used on July 14 and July 15, 1995 at Mudd's was not registered with the Department.
11. Sometime in early 1996, Mr. Clemente contacted Stephen Mudd to ascertain whose initials were "SL" as indicated on the daily use records for the July 14, 1995 applications. Mr. Mudd provided that these initials stood for Stanley Luberski, a Mudd's employee.
12. By letters dated January 24, 1996 and January 26, 1996, DEC staff served Steve Mudd and Stanley Luberski each with an NOV. The January 24 NOV states that on or about July 14, 1995, Steve Mudd violated ECL § 33-1301(1)(a) by using an unregistered pesticide: Captan 4 Flowable (EPA Reg. No. 476-1839-51036). The January 26 NOV indicates that on or about July 14, 1995, Stanley Luberski violated the same statute by using an unregistered pesticide: Microflo Captan (EPA Reg. No. 476-1819-51036). Because the chart prepared by Mr. Clemente that was based upon the Mudd's daily use records indicates that it was Microflo Captan (EPA Reg. No. 476-1819-51036) that was used on both dates, the identification of Captan 4 Flowable (EPA Reg. No. 476-1839-51036) in the January 24 NOV was in error.
13. Pesticides sold in New York State in stores such as Agway bear labels that contain information regarding the target species, the appropriate use of the product such as the type of crop, the required personal protection, application rates, re-entry intervals, and the EPA registration number. However, the label does not indicate whether the product is registered with the Department. A consumer of such a product must check with DEC in order to confirm that the product is registered in the State as required by law. In addition, it is possible that at the time of purchase a product is registered but this status may lapse during the time prior to application resulting in an illegal use.
14. The product, Microflo Captan, that was identified by its EPA product registration number by staff was never registered in New York State. The Department maintains files on all products that are registered with it including letters, applications, product data sheets, and labels. When DEC registers a product, it generates a certificate of registration. Staff can ascertain the registration status of a product by entering the EPA registration number into the Foxpro data base that has been used by the Department since 1986.
15. The EPA registration number identifies the name of the manufacturer, the product, and the distributor. For example, the number 476 identifies the manufacturer as Stauffer Chemical Company, the number 1819 refers to Captan - the trade name of the chemical, and 51036 identifies the distributor as Microflo. There are distributors of Captan products other than Microflo. Two Captan products were previously registered with the Department that had the same registration number except for the last part of the number that identifies the distributor. These two products have not been registered with the Department since 1993.
16. The respondents have used various formulations of Captan on their premises for over twenty years including the formulation sold by Microflo. And, the Department has registered for use in New York State a large number of various formulations of pesticides that incorporate Captan including products that are currently registered.

DISCUSSION

Liability

Essentially, the staff provided unrebutted evidence that Mudd's spray records revealed the use of a product -- Microflo Captan -- for which the EPA registration number (476-1819-51036) did not match any registered product in New York. ECL § 33-1301(1)(a) prohibits the use of any pesticide that is not registered pursuant to Article 33. The record developed by Mr. Clemente (hearing exhibit 5) indicates that Captan (EPA No. 476-1819-51036) was used by Mudd's employee Stanley Luberski and respondent Stephen Mudd on July 14 and July 15, 1995. Staff's complaint also alleges that respondents used Captan 4 Flowable (EPA Reg. No. 476-1839-51036) on July 15, 1995. But, because this latter allegation was based on an incorrect registration number, the staff presented no proof to support this claim.

On the morning of the first day of hearing, staff requested that I allow an amendment of the complaint to reflect that the unregistered pesticide alleged to have been used on July 14-15, 1995 at Mudd's Vineyard was Microflo Captan (EPA Reg. No. 476-1819-51036). This formulation is the one that is noted on Mr. Clemente's chart (exhibit 5) for the dates in question. However, because the stipulation entered into by the Department and the respondents to resolve an Article 78 petition pending in Supreme Court in 1996 limited DEC's actions with respect to then-pending enforcement matters to the two NOV's of January 24 and January 26, 1996, I would not allow the staff's amendment. The January 24, 1996 NOV (exhibit 6) also incorrectly identifies the product as noted in the complaint. Accordingly, I recommend that staff's second cause of action regarding the alleged use of Captan 4 Flowable (EPA Reg. No. 476-1839-51036) be dismissed in its entirety.

Regarding the first cause of action, staff presented proof that the respondents' own records indicated the use of an unregistered pesticide. Therefore, I find that respondents' Stephen Mudd and Mudd's Vineyard, Ltd. violated ECL § 33-1301(1)(a) by using an unregistered pesticide at Mudd's on or about July 15, 1995. Because staff did not put forward any proof demonstrating David Mudd's direct involvement in this action, I do not sustain the allegations as to him. While David Mudd is the president of this entity, that does not automatically result in a finding of personal culpability.⁽⁵⁾ This is in contrast to Stephen Mudd, who by his own testimony, acknowledged personal responsibility for oversight of the use of pesticides at the vineyard. See, Commissioner's Decision, In the Matter of Mudd's Vineyard, Ltd., David Mudd, and Stephen Mudd (August 8, 1994). And, Stanley Luberski was an employee of Mudd's at the time of the application of the unregistered pesticide on July 14, 1995 and therefore, Mudd's Vineyard, Ltd. is implicated by his actions on its behalf.

Penalties

The Department has requested a penalty of $4,000. ECL § 71-2907(1) provides that a person who has violated Article 33 is liable 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. The Department's 1990 civil penalty policy sets forth the factors to be considered in calculating a penalty. This policy states, among other things, that the staff should provide an explanation of the penalty it seeks in the adjudicatory hearing. Staff's sole support for the penalty was its attempt to establish that respondents were not cooperative during the inspection and the period subsequent to the initiation of these enforcement proceedings.

The policy provides that consideration should be given to the economic benefit that a violator achieved through non-compliance, the gravity of the offense based upon the potential harm and actual damage caused by the violation, and the importance of the violation in the regulatory scheme. In considering adjustments of penalties, the policy sets forth factors of the violator's mental state, cooperation, history of non-compliance, and ability to pay. In this matter, there is no evidence that Mudd's obtained any economic benefit through use of the unregistered pesticide. While there is no proof either of environmental harm, staff did stress at the outset of the hearing that adherence to the registration system was important to New York's system of pesticide regulation.

Because all parties agree that a pesticide user could not identify whether a pesticide is registered from the face of a product sold in New York, there is no basis to conclude that Mudd's intentionally used an unregistered product. In fact, given that many other products using Captan have been registered in New York, it was not necessarily unreasonable to assume that this product, sold by a local distributor, was also so registered. Yet, Mudd's has had a prior history of pesticide violations as noted in the 1994 Commissioner's decision and as a regular user of pesticides, the corporation and the responsible employees at the company should be very familiar with Article 33 and the related regulations. While the registration requirement may not be to Mudd's liking, it is the law and there must be strict adherence to it.

The parties gave contrary testimony about the nature of Mudd's cooperation. However, staff did not follow up with Mudd's after its inspection in the summer of 1995 except to inquire about the identification of certain initials that appeared on a spray record.⁽⁶⁾ And, staff did not dispute that except for this violation, which from the records appears to have occurred on one occasion, nothing else appeared out of order at Mudd's on the day of the inspection with respect to the areas of concern.

While Mudd's use of an unregistered pesticide, as indicated in its spray records, is a violation of ECL § 33-1301(1)(a), I find that staff's recommendation of a penalty of $4,000 is too great. First, this penalty was recommended on the basis of Mudd's alleged use of two unregistered pesticides. However, based upon staff's admission of an error with regard to the identification of Captan 4 Flowable (EPA Reg. No. 476-1839-51036), I have determined that this cause of action should be dismissed. There is no evidence of environmental harm as Captan is routinely used and there were no allegations that the respondents misused this product. And, while the cooperation of Mudd's may be disputed, apparently staff was satisfied with the information it obtained from respondents during and after the July 1995 inspection because it chose not to pursue its investigations further with the respondents.

A penalty should be assessed however because respondents have a history of non-compliance and should also be acutely aware of the regulatory requirements based upon this history and their regular use of pesticides. Accordingly, I recommend that a penalty of $2,000 be assessed, of which, $1500 should be suspended. I also recommend that in the event that staff discovers violations of the registration requirements at Mudd's within twelve months of the Commissioner's decision in this matter, the suspended $1500 will be immediately owed to the Department. Staff also requested that the Commissioner order the respondents to comply with all environmental statutes and regulations in the future. Because everyone is bound by this mandate, there is no reason that it should be in an order.

RECOMMENDATION and CONCLUSION

Based upon the above findings and discussion, I recommend that the Commissioner find the respondents Mudd's Vineyard, Ltd. and Stephen Mudd liable for a violation of ECL § 33-1301(1)(a) for use of an unregistered pesticide, Microflo Captan (EPA Reg. No. 476-1819-51036) on or about July 14, 1995 and for that violation these respondents should be fined a penalty of $2,000 with $1500 of that sum suspended pending their compliance with the registration requirements. In the event that staff determines that Mudd's is in violation of Article 33 registration requirements based upon an inspection in the next twelve months, respondents should be required to immediately pay to the Department the suspended portion of the penalty. I recommend that the second cause of action contained in the complaint concerning alleged use of an unregistered pesticide - Captan 4 Flowable (EPA Reg. No. 476-1839-51036) - be dismissed. Last, I recommend that all allegations against David Mudd personally be dismissed.

/s/
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
December 4, 1998

¹ Section 622.4 of 6 NYCRR requires that the answer contain all affirmative defenses and that any not so pled cannot be raised at the hearing unless allowed by the ALJ. Respondents' verified answer contains no affirmative defense of lack of personal jurisdiction and in communications with me and the parties over a period of months, respondents' counsel appeared on their behalf and agreed to go forward to a hearing.

² In the complaint staff also alleges that respondents used an unregistered pesticide Captan 4 Flowable (EPA Reg. No. 476-1839-51036) on or about July 15, 1995 at their property. However, apparently the identification of this pesticide product was in error and staff did not provide any proof at the hearing of respondents' use of this substance and therefore, I recommend that this charge be dismissed.

³ Respondents did not provide any support for this allegation nor could they because this allegation appears to fall within their fourth affirmative defense of selective enforcement which I dismissed in my ruling of April 22, 1998 based upon ALJ Buhrmaster's ruling of January 22, 1998.

⁴ Ms. Broughel testified via telephone based upon the agreement of the parties. Staff had attempted to move her affidavit into evidence in lieu of physically producing this witness. Respondents objected to the admission of the affidavit into evidence without an opportunity to confront the witness. I agreed that such admission would deny Mudd's the chance to cross-examine Ms. Broughel on the essential element of staff's case -- that is, whether the product allegedly used on respondents' fields in July 1995 was registered with the State. Accordingly, upon staff's suggestion that the telephone conference call mechanism be used and respondents' agreement to do, we proceeded in that manner.

⁵ Staff states in its post-hearing reply brief that its failure to provide proof of David Mudd's liability is due to his failure to appear at the hearing and that the decision in In the Matter of Mudd's Vineyard, et al, Commissioner's Decision (August 8, 1994) can be relied upon to find such liability. I disagree. While there is no dispute that David Mudd is an officer of the business, that alone, without proof of involvement in these allegations is insufficient to find him personally responsible.

⁶ It is troubling that upon learning of Mudd's use of an unregistered product, staff did not take steps to address its specific concern earlier by notifying the respondents of the improper use.

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