John Kitzhaber, Governor

Case Number: 140010 Case Name: Collier Arbor Care (200 Market Street Building) / Chance, Monro

Case Closed

Overview
Investigator Michael Babbitt Case Reviewer Sunny Jones Date Started 07/02/2013 ROL Sent? Referral to Another Agency? Number of Samples Taken 2 Number of Samples Analyzed 2 Complaint? Refer to PARC? Cease & Desist LOA Verified Compliance? Yes Yes Yes Yes Yes No No No No No Sample Type Air Animal Soil Swab Water Veg Other Yes No Date Completed 11/12/2013 Date ROL Sent Date of Referral List Test(s) Requested imidacloprid, dinotefuran Manager

Type of Investigation NUF Suspected Violation? Yes No

Date Reviewed 11/12/2013 Date Case Completed Sixty Days 08/31/2013 One Hundred Twenty Days 10/30/2013

Related Cases ARI 130445, NUF 130480, NUF 140006

Tracking Bees Devices Non-target species Significant (EPA) Liquid spray application

Nature

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Parties Involved
Parties Involved Complainant Last / Business Name Address City Chance Portland Complainant Monro First State Candice OR David 330-569-4650 Government agency City of Portland, Parks and Recreation 1120 SW 5th Avenue, Room 1302 Portland Government agency West Service Zone, Portland & 2909 SWParks 2nd Avenue Zone Coordinator Portland Government agency OR 97204 Multnomah Multnomah 97258 503-727-4150 Multnomah Zip License # Phone License Type Expiration Date County

Category

1 SW Columbia Street, Suite 1200

contact: Bryan Aptekar, West Service OR 97201 503-823-6973 Multnomah

Reed John Integrated Pest Management Program Coordinator, Portland Parks & Recreation Portland OR 503-823-1991 Multnomah GARRON GROUNDS MANAGEMENT 11277 SW CLAY ST STE D guy@garrongrounds.com James SHERWOOD OR Chris 97140 COLLIER ARBOR CARE INC 11814 SE JENNIFER ST CLACKAMAS OR RAY mobile 503-519-9002 OR SEAN OR 97071 97023 503-689-6766 AG-L1018743CPA 503-722-7267 97015 AG-L0073326CPO CPO Guy Young 12/31/2013 chris@garrongrounds. 503-682-7172 Washington TOIF, TOH AG-0000757CPO 503-722-7267 AG-L0168804CPA CPO 12/31/2013 Multnomah TOIF, TOH CPA 12/31/2013 Clackamas TOIF, TOH CPA 12/31/2013 Marion TOIF, TOH

General Contractor for grounds maintenance Operator

Applicator

DUVAL 40505 E HWY 224 ESTACADA

Applicator

RINAULT 1238 MARCEL DR WOODBURN

Customer

200 MARKET BUILDING 200 SW Market Street, Suite 1720 Property Portland Manager OR 97201

Sheryl Scali, 503-228-8666)

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Application Information
Date of Application 3/2/2013 Application Note Category ORN-Insect/Fungi Location of Application Along pedestrian walkway skirting the east side of the 200 Market Street Building, 200 SW Market Street, Portland, Oregon Specific Site/Crop Shade trees, including lindens Rate of Application (mixing rate, diluent, rate per area, etc) 76.5 fluid ounces applied to 599 DBH worth of ornamental trees, consisting of 10 lindens (diameters totaling 148 inches), 8 maples (diameters totaling 109 inches), 44 birches (diameters totaling 254 inches), and 88 inches of DBH of honey locust, all on a business grounds area about, very roughly, 2.3 acres in size, including the building and hardscape. Purpose aphid control Method of Application systemic application to trees, by soil drench Pesticides Involved Type Manufacturer Trade Name EPA Reg. No. Active Ingredients Start Time 0735 End Time 1000 Time of Day

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Pesticides Involved Type Insecticide Manufacturer Makhteshim Agan of North America, Inc. Trade Name Quali-Pro Imidacloprid 2F EPA Reg. No. 66222-203 Active Ingredients Imidacloprid

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Narrative

July 1, 2013: Candace Chance sent an email to ODA Pesticides, reporting dead bees on the sidewalks at or about Pettygrove Park, Portland, Oregon. This case was assigned to me, Michael Babbitt, ODA Pesticides Investigator. July 2, 2013: I went to Portland and met with Candice Chance, who took me to where she had seen the dead bees. We left from her office at SW First Avenue and SW Columbia Street and went south along SW Second Avenue. We crossed SW Market Street, on the east side of the 200 Market Street Building, and then proceeded south along the north-south pedestrian way -- which is an extension of Second Avenue -- to the eastern edge of Pettygrove Park. We observed dead bumble bees on the ground, but not enough for sampling. Ms. Chance said that street sweepers had probably removed many of those she had seen earlier. The trees overarching the sidewalk where the bees were found were lindens. (Lindens, also known in North America as basswood trees, comprise several Eurasian and North America species of the genus Tilia.) Most of the dead bees were on the Second Avenue pedestrian way between Pettygrove Park and Market Street, along the eastern edge of the 200 Market Street Building. I saw no dead bees in Pettygrove Park, nor any linden trees. July 8, 2013: ODA Pesticides received email from David Monro, stating that he had seen hundreds of dead bees on the ground at or about Pettygrove Park. I called Mr. Monro, who was not able to meet with me. I then went to the site and took photographs. As before, I saw no dead bees or linden trees in Pettygrove Park, but did see some dead bumble bees under the lindens on the Second Avenue pedestrian way where it skirted the eastern edge of the 200 Market Street Building. I collected these dead bees. Sampling Plan In order to ascertain whether a pesticide might have been involved in the bee deaths, the Department determined that the dead bees at this site should be sampled, although we were not certain there would be enough to analyze. I collected about 50 ml of dead bees, from the Second Avenue Pedestrian trail skirting the east side of the 200 Market Street Building, which is adjacent to and north of Pettygrove Park. These were all the dead bees I found at the site; all of them were bumble bees. With isopropanol-rinsed glove I collected the dead bees into a clean 500-ml glass jar, put the sample in cool storage and took it to ODA's Laboratory Services in Portland (the ODA lab). The sample of dead bees was designated as sample NUF140010-1, I asked that it be placed on hold. I left voice mail with Ali Ryan, Portland Parks & Recreation. She returned my call and said she would find out who was the knowledgeable or responsible party for Pettygrove Park. Later this day I received email from Bryan Aptekar, West Service Zone Coordinator for Portland Parks & Recreation. In this message, Mr. Aptejkar referred me to several persons who would be knowledgeable in this matter. July 9, 2013:
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Referred case to PARC, the Pesticide Analytical and Response Center, by means of email to Ted Bunch, PARC Coordinator, ODA Pesticides. July 10, 2013: I spoke with Mr. Aptekar, with Portland Parks & Recreation, who did not think the city had used any insecticides near the site but suggested I speak with John Reed, the Integrated Pest Management (IPM) Program Coordinator for Portland Parks & Recreation. July 11, 2013: I called John Reed, the Portland Parks IPM Coordinator, Portland Parks & Recreation. He confirmed that the City had applied no insecticides this year at Pettygrove Park. I called Garron Grounds, spoke with Chris, and left a message for Guy Young. Mr. Young called me back and explained that Garron Grounds takes care of the grass, another company takes care of the trees. The only thing they have done this year was apply some broadleaf herbicides onto the lawn, and some glyphosate. Halprin Conservancy has paid for work in the park. Garron Grounds manages the 200 Market Street building, adjacent to and north of the park, and contracts the tree care work out to Collier Arbor Care, Inc. (Collier). Mr. Young said Collier's practices are largely organic, using a lot of horticultural oils. He said Pacific Landcare manages the building to the west of Pettygrove Park. I called Collier Arbor Care and spoke with Chris Ritschard. He checked their records; the 200 Market Street site was listed as an organic client. Chris said that on March 1, 2013 they had systemically treated trees at this site with Imidacloprid 2F. The 2013 application was the third time they had treated the lindens with imidacloprid, the product having been applied during 2011, 2012, and 2013. The dates for the previous treatments were March 2, 2012 and March 10, 2011. I requested a copy of the records, of at least the latest of these applications. July 12, 2013: ODA received from Collier a label for Quali-Pro Imidacloprid 2F Turf & Ornamental Insecticide (EPA Reg. No. 66222-203). It was a label taken from a container. July 17, 2013: Michael Odenthal, ODA Pesticides Lead Investigator, sent an email to the ODA Lab, asking them to analyze the sample for imidacloprid, and if possible, for dinotefuran as well. July 19, 2013: Jessie Smith, of Collier Arbor Care, emailed to me the pesticide application records. Regarding the systemic treatments, the record noted that: "We also did the systemic treatments at this time as it takes about 60 days for this product to take full effect." The applicators for this application were Ray Duval and Sean Rinault.

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Narrative

July 24, 2013: I left a message at Collier Arbor Care, with Jessie, for Ray Duval. Mr. Duval called me back, confirmed that the product he and Sean Rinault had used was Quali-Pro Imidacloprid 2F Turf & Ornamental Insecticide (EPA Reg. No. 66222-203, Makhteshim Agan of North America), and described how it had been applied. He calculated the application for, and applied the product to, each tree individually. Mr. Duval's and Mr. Rinault's process was to dig a small trench around the tree, measure each tree diameter, and with that information calculate the amount of product needed, applying at the rate of 0.13 fluid ounce per inch of DBH. For each tree they measured out the volume of product, mixed it with sufficient water to make a manageable volume, and pored it onto the trunk so that it was absorbed into the soil or through the bark. (According to an estimate given at a later date by Mr. Ritschard, the mixing ratio was about 5 to 1, water to product.) I asked about the extent of the application, Mr. Duval said that in addition to the lindens, maples, and birches, some honey locusts had been treated as well. I asked him to include in the map of the treatment area that he had agreed to send to me. Label Review The Imidacloprid 2F label permits application to various ornamentals and landscape plants, including trees, which can be treated by various methods, including systemic techniques such as soil drenches. It also includes a statement regarding bees. Under ENVIRONMENTAL HAZARDS, the label states: ... This product is highly toxic to bees exposed to direct treatment or residues on blooming crops or weeds. Do not apply this product or allow it to drift to blooming crops or weeds if bees are visiting the treatment area. ... Under APPLICATION TO ORNAMENTALS, it states: Quali-Pro Imidacloprid 2F Turf & Ornamental Insecticide is for use on ornamentals in commercial and residential landscapes and interior plantscapes. Quali-Pro Imidacloprid 2F Turf & Ornamental Insecticide is a systemic product and will be taken up into the plant system from root uptake. The product must be placed where the growing portion of the target plant can absorb the active ingredient. The addition of a nitrogen-containing fertilizer, where applicable, into the solution may enhance the uptake of the active ingredient. Application can be made by foliar application or soil applications including soil injection, drenches, and broadcast sprays. Foliar applications offer locally systemic activity against insect pests. When making soil applications to plants with woody stems, systemic activity will be delayed until the active ingredient is taken up throughout the plant. In some cases, this translocation delay could take 60 days or longer. For this reason, apply prior to anticipated pest infestation to achieve optimum levels of control. The Quali-Pro Imidacloprid 2F label also imposes restrictions that apply to all applications. Under RESTRICTIONS it states:
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Narrative

Do not apply more than 1.6 pt (0.4 lb of active ingredient) per acre per year. ... The label section on soil drench applications for trees provides an allowable application rate range of 0.1 to 0.2 fluid ounce per inch of DBH (trunk Diameter at Breast Height). August 4, 2013: The ODA lab issued the following results of its analysis of the bee sample. The results are in parts per million (ppm): Detected Sample No. NUF140010-1 Description bees imidacloprid 0.0073 Detected dinotefuran none

The Minimum Detection Level (MDL) for imidacloprid was 0.0020 ppm; for dinotefuran it was 0.0040 ppm. August 12, 2013: I called Sheryl Scali (503-228-8666), property manager for for the 200 Market Street Building, to request permission to sample the linden tree foliage on the grounds at 200 Market Street. I advised her in general about this investigation, when she indicated she had not heard anything about it. Ms. Scali confirmed that the pedestrian walkway from which I had collected the bumble bees was public property, and gave me permission to collect foliage from the grounds of the 200 Market Street Building. Ms. Scali also confirmed, at a later date (October 1, 2013), that no other party would have treated the sampled linden trees, other than the company Garron Grounds hired to do the job, which was Collier Arbor Care. Sampling Plan, continued: Since the dead bumble bees had been found to contain imidacloprid, the Department determined that it would be useful to know whether the compound was also present in the linden foliage. Although the known imidacloprid application was by this time over five months old, review of literature had suggested that imidacloprid might still persist in the foliage. On August 12, 2013 I proceeded to 200 Market Street, accompanied by Isaak Stapleton, ODA Pesticides Investigator, and collected leaves from the linden trees on the east grounds of the 200 Market Street Building, along the west side of the Second Avenue Pedestrian Trail. We then took the sample to the ODA lab, and requested that it be analyzed for imidacloprid. August 15, 2013: The ODA lab issued the following results of its analysis of the foliage sample. The results are in ppm: Detected Sample No. NUF140010-2 Description linden leaves imidacloprid 0.21 MDL 0.0040

No analysis was made for dinotefuran in the foliage.

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Narrative

September 23, 2013: Michael Odenthal, ODA Pesticides lead investigator, sent an Enforcement Case Referral (ECR) to EPA Region 10, with questions for EPA regarding interpretation of the Quali-Pro Imidacloprid 2F label. October 14, 2013: Chris Ritschard returned my call, and I requested information on the extent of the area with treated trees, and for more detailed information on how much water was mixed with the Quali-Pro Imidacloprid 2F. Mr. Ritschard said that the water was not measured, but that generally they used a ratio of 5 to 1, water to product. Regarding the extent of the area with treated trees, Mr. Ritschard recalled that the lindens had been along the walkway on the east side of the building, birches were on the terrace, and honeylocusts were along Market Street. I explained that ODA was still collecting information on this matter, and may yet have further questions. Mr. Ritschard noted that Collier Arbor Care had been bought out by Bartlett Tree Experts.

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Conclusion

ODA has reviewed this matter and concluded that Collier Arbor Care, Inc., Ray J. Duval, and Sean J. Rinault violated Oregon's State Pesticide Control Act: Collier Investment Group, Inc. violated ORS 634.372(2), which states A person may not: As a pesticide applicator or operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its labeling, or as a pesticide consultant or dealer, recommend or distribute such pesticides. On March 2, 2013 Collier Investment Group, Inc., under its previous name of Collier Arbor Care, Inc. and through its agents or employees Ray J. Duval and Sean J. Rinault, intentionally applied a pesticide product to shade trees on landscaped business grounds at 200 SW Market Street, Portland, Oregon. Neither Collier, Mr. Duval, nor Mr. Rinault had any ownership or control over the treated property. During this application Collier was an Oregon-licensed Commercial Pesticide Operator and Mr. Duval and Mr. Rinault were both Oregon-licensed Commercial Pesticide Applicators. The pesticide product was Imidacloprid 2F turf & ornamental insecticide, EPA Reg. No. 66222-203. Collier, through Mr. Duval and Mr. Rinault, applied the Imidacloprid 2F by means of a soil drench. Collier and the applicators used 76.5 fluid ounces of Imidacloprid 2F to treat ornamental trees with a total of 599 inches of diameter at breast height (DBH). The treated property is 2.3 acres in size, including the building and hardscape and treated areas. Collier and the applicators thus applied 76.5 fluid ounces to 2.3 acres, which is a rate of 33.26 fluid ounces per acre, or 2.08 pints per acre. The Imidacloprid 2F label states: Do not apply more than 1.6 pt (0.4 lb of active ingredient) per acre per year. ... Intentionally applying this pesticide product in excess of the labels allowable rate per acre was inconsistent with the pesticides labeling and was in violation Of ORS 634.372 (2). Collier Investment Group, Inc. violated ORS 634.372(5), which states A person may not Refuse or neglect to prepare and maintain records required to be kept by the provisions of this chapter. As an Oregon-licensed Commercial Pesticide Operator, and under its previous name of Collier Arbor Care, Inc., Collier prepared and maintained records of the pesticide applications it performed onto the properties of others in Oregon. On June 4, 2013 the ODA reviewed some of these records as part of a routine pesticide application record inspection, to determine whether the records contained the elements required by ORS 634.146(1). This review revealed that the following required elements were missing from some of the records: Identification of the pesticide product used Dilution rate of the pesticide product used Specific identification of the type of treatment site

The ODA also reviewed Colliers records of the Market Street and Golf Club applications. These records lacked: Identification of the pesticide product used Dilution rate of the pesticide product used
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Conclusion

Equipment or device used to make the application

And the ODA reviewed Colliers pesticide application record for the Safari 20 SG applications at the Argyle Square Target Store. This record lacked documentation of the systemic treatment made to some of the trees. The pesticide applications partially documented by these records were performed in Oregon by a Commercial Pesticide Operator onto the properties of others, and were commercial pesticide applications subject to the record keeping requirements of ORS 634.146. Regarding the preparation and maintenance of commercial pesticide application records in Oregon: Failing to accurately or sufficiently identify the pesticide product used is contrary to ORS 634.146(1)(e), which requires records to include the trade name and the strength of such pesticides." Failing to record the dilution rate of the pesticide product used is contrary to ORS 634.146(1)(f), which requires records to include the amount or concentration (pounds or gallons per acre of active ingredient or concentration per approximately 100 gallons)." Failing to specifically identify the type of treatment site is contrary to ORS 634.146(1) (g), which requires records to include the specific property, crop or crops to which the pesticide was applied." ORS 634.146(1)(g)." Failing to record equipment or device used to make the application is contrary to ORS 634.146(1)(h), which requires records to include the "summary information of equipment, device or apparatus used .... ORS 634.146(1)(h). Failure to record these elements of information about pesticide applications that are required by ORS 634.146(1) was in violation of ORS 634.372(5). These record omissions are not listed in the Enforcement Tab of this case as a violation of ORS 634.372(5). Rather, they are addressed in combination with another case; the Enforcement Tab of 130445 will note the violation of ORS 634.372(5). Enforcement notices were issued for multiple cases: 130445, 130480,140006, 140010.

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Conclusion

J. Duval violated ORS 634.372(2), which states A person may not: As a pesticide applicator or operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its labeling, or as a pesticide consultant or dealer, recommend or distribute such pesticides. On March 2, 2013 Mr. Duval, as an agent or employee of Collier Investment Group, Inc., under its previous name of Collier Arbor Care, Inc., intentionally applied a pesticide product to shade trees on landscaped business grounds at 200 SW Market Street, Portland, Oregon. Neither Collier nor Mr. Duval had any ownership or control over the treated property. During this application Collier was an Oregon-licensed Commercial Pesticide Operator and Mr. Duval was an Oregon-licensed Commercial Pesticide Applicator. The pesticide product was Imidacloprid 2F turf & ornamental insecticide, EPA Reg. No. 66222-203. Mr. Duval applied the Imidacloprid 2F by means of a soil drench. Mr. Duval helped to use 76.5 fluid ounces of Imidacloprid 2F to treat ornamental trees with a total of 599 inches of diameter at breast height (DBH). The treated property is 2.3 acres in size, including the building and hardscape and treated areas. Mr. Duval thus helped to apply 76.5 fluid ounces to 2.3 acres, which is a rate of 33.26 fluid ounces per acre, or 2.08 pints per acre. The Imidacloprid 2F label states: Do not apply more than 1.6 pt (0.4 lb of active ingredient) per acre per year. ... Intentionally applying this pesticide product in excess of the labels allowable rate per acre was inconsistent with the pesticides labeling and was in violation Of ORS 634.372 (2). Sean J. Rinault violated ORS 634.372(2), which states A person may not: As a pesticide applicator or operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its labeling, or as a pesticide consultant or dealer, recommend or distribute such pesticides. On March 2, 2013 Mr. Rinault, as an agent or employee of Collier Investment Group, Inc., under its previous name of Collier Arbor Care, Inc., intentionally applied a pesticide product to shade trees on landscaped business grounds at 200 SW Market Street, Portland, Oregon. Neither Collier nor Mr. Rinault had any ownership or control over the treated property. During this application Collier was an Oregon-licensed Commercial Pesticide Operator and Mr. Rinault was an Oregon-licensed Commercial Pesticide Applicator. The pesticide product was Imidacloprid 2F turf & ornamental insecticide, EPA Reg. No. 66222-203. Mr. Rinault applied the Imidacloprid 2F by means of a soil drench. Mr. Rinault helped to use 76.5 fluid ounces of Imidacloprid 2F to treat ornamental trees with a total of 599 inches of diameter at breast height (DBH). The treated property is 2.3 acres in size, including the building and hardscape and treated areas. Mr. Rinault thus helped to apply 76.5 fluid ounces to 2.3 acres, which is a rate of 33.26 fluid ounces per acre, or 2.08 pints per acre. The Imidacloprid 2F label states: Do not apply more than 1.6 pt (0.4 lb of active ingredient) per acre per year. ... Intentionally applying this pesticide product in excess of the labels allowable rate per acre was inconsistent with the pesticides labeling and was in violation Of ORS 634.372 (2).
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Attachments
Attachment Name Type Tab 01 - Business registry, Collier Investment Group, Inc. Misc. Tab 02 - Collier name change Misc. Tab 03 - License, Collier Arbor Care Inc., CPO Misc. Tab 04 - License, Ray J. Duval, CPA Misc. Tab 05 - Licensing recertification history, Duval Misc. Tab 06 - License, Sean J. Rinault, CPA Misc. Tab 07 - Licensing recertification history, Rinault Misc. Tab 08 - downtown Portland Maps Tab 09 - Portland Maps Tab 10 - 200 Market St, area measurement of grounds Maps Tab 11 - Email with record Correspondence Tab 12 - Application record, 200 Market Street Building Records Tab 13 - Imidacloprid 2F, EPA Reg. No. 66222-203, provided by Label CPO Tab 14 - Imidacloprid, Fact Sheet, NPIC Misc. Tab 15 - Weather data Misc. Tab 16 - email with complainants Correspondence Tab 17 - Photographs, captions, July 8, 2013 Photos Tab 18 - Photographs, captions, August 12, 2013 Photos Tab 19 - note regarding tree locations Case notes Tab 20 - 200 Market Street sampling Misc. Tab 21 - Request for analysis Correspondence Tab 22 - email, results of analysis, bees Correspondence Tab 23 - Analytical results, bees Misc. Tab 24 - Email, results of analysis, foliar Correspondence Tab 25 - Analytical results, foliage Misc. Tab 26 - Results table (analytical results) Misc. Tab 27 - Enforcement Case Referral letter to EPA Correspondence Tab 28 - Notice of Violation and Imposition of Civil Penalty, Collier Enforcement Tab 29 - Notice of Imposition of Civil Penalty, Duval Enforcement Tab 30 - Notice of Imposition of Civil Penalty, Rinault Enforcement Tab 31 - Request for public record, Carr Public record Tab 32 - requests for hearing, ODA's responses Enforcement

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Enforcement Summary
Name Collier Arbor Care, Inc. Collier Arbor Care, Inc. Duval, Ray J. Rinault, Sean J. License Type CPO CPO Prohibition Violated 2 NONE Number of Actions 1 1 Action CP NONE (for violation of 634.372(5) see 140006) CP CP 12/16/13 12/16/13 12/17/13 12/17/13 $407.00 12/23/13 $407.00 12/23/13 $1,221.00 TOTAL Actual CP Amount $ Notice Issued 12/16/13 Notice Served 12/17/13 Orig CP Amount $ Hearing Reqsted Informal Held Final Order Issued Actual CP Amount $

$407.00 12/23/13

CPA CPA

2 2

1 1

TOTAL Orig CP Amount $

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Enforcement Notes

December 17, 2013: Dale Mitchell and Michael Babbitt, ODA Pesticides, went to Collier Arbor Care, met with the parties and served the enforcement notices.

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Notes
When Sent From 12/20/2013 10:44:05 AM Michael Babbitt Please note Mr. Carr's public record request. Thank you. To Sunny Jones

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