BEFORE THE POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

 

MICHAEL P. MURPHY & MURCHU       )

MOORS, INC.,                                              )

                                                                        )

                        Appellant,                                 )

                                                                        )                       PCHB NO. 97-80

)                       FINAL FINDINGS OF FACT,

STATE OF WASHINGTON,                        )                       CONCLUSIONS OF LAW

DEPARTMENT OF ECOLOGY,                 )                       AND ORDER

                                                                        )

                        Respondent.                             )

____________________________________)

 

            This matter came on for hearing before the Pollution Control Hearings Board (Board) on November 3, 1998 in Lacey, Washington.  Michael P. Murphy & Murchu Moors Inc., (Murphy) appealed a penalty of $18,000 assessed by the State of Washington, Department of Ecology (Ecology) for water quality violations arising from illegal application of the pesticide parathion to cranberry bogs.

            Administrative Appeals Judge, Phyllis K. Macleod, presided for the Board.  Robert V. Jensen and Ann Daley heard the case for the Board and rendered this decision.  Murphy was represented by Frank M. Franciscovich, and Assistant Attorney General, Joan Marchioro represented Ecology.  Cindy Ide of Gene Barker & Associates, Inc., Olympia, Washington recorded the hearing.

            Witnesses were sworn and heard, exhibits were introduced, and both parties presented arguments to the Board.  Based upon the evidence presented, the Board makes the following:

FINDINGS OF FACT

I.

 

            Murphy is the owner of an 18 acre cranberry bog in Pacific County Washington.  He inherited the property from his mother in 1992, however, he has held a state license as a pesticide applicator since 1986.

II.

            When Murphy took possession of the property there was an existing stock of the pesticide parathion on hand.  Parathion is an effective substance for treating fireworm outbreaks in cranberry bogs, but it was banned for that use by the United States Environmental Protection Agency (EPA) in 1992.  Other pesticides are also used to combat fireworm, but parathion is more effective than the alternative methods.  Murphy was aware, in 1996, that parathion use on cranberries was prohibited by law.

III.

            Parathion is an extremely toxic substance.  It presents a hazard to humans, animals, fish and birds.  As part of state water quality standards, Ecology has identified parathion as a toxic substance and established numeric criteria for evaluating its presence.  The acute level for parathion in water is set at .065 parts per million.  At the acute level a toxic substance has the potential to kill affected organisms within 24 hours.  When toxic substances are present at a chronic level, organisms are not killed immediately, but can be expected to be injured or killed over a period of time.  The chronic level for parathion is .013 parts per million.

IV.

            Murphy admits that he applied parathion to 13 acres of cranberry bog on May 15, 1996.  He applied parathion to alleviate a fireworm outbreak.  The parathion was applied by chemigation, which is a violation of the label directions for its use.

V.

            Application of parathion to Murphy’s bogs through irrigation caused the pesticide to drain into Grays Harbor Irrigation Ditch No. 1.  (Ditch No. 1)  Murphy speculated at the hearing that his property might not drain into Ditch No. 1, but the only evidence before the Board established that it does.

VI.

            Parathion was detected in Ditch No. 1 as a part of a regular water quality-monitoring program conducted by Ecology during the cranberry growing season.  In 1996 this program ran from approximately May 13-August 25.  Samples were taken by Dale Davis, project manager for the pesticide monitoring program, at a testing site approximately 2 miles from the Murphy bogs.

VII.

            Davis collected samples in compliance with standard protocol designed to assure representative material is examined.  Samples were sent for laboratory analysis and the results revealed serious parathion contamination.  The test results showed parathion levels at the testing site as follows:

            May 20                        .11 and .09                   Above acute criterion

            May 21                        .056                             Above chronic criterion

            May 22                        .048                             Above chronic criterion

            May 23                        .040                             Above chronic criterion

            May 24                        .019                             Above chronic criterion

            May 28                        .014                             Above chronic criterion

VIII.

            After the test results were obtained, Ecology and the Washington Department of Agriculture (Agriculture) began a joint investigation to determine the source of the banned pesticide.  Murphy cooperated in that investigation and ultimately signed a statement, in the presence of his counsel, admitting the knowing and intentional use of parathion.  (Ex. R-2)

IX.

            Murphy’s testimony at hearing indicated that he might have been confused about the full extent of his exposure to penalties for the parathion application when he made the statement.  The contents of the statement, however, are true, even if Murphy now questions whether he should have been as forthright about his pesticide use.

X.

            Murphy suffered significant economic consequences as a result of his decision to apply parathion to his bogs.  Before this incident Murphy was part of a cranberry cooperative led by the Ocean Spray Company.  In fact, testing by the Ocean Spray Cooperative first identified the parathion use in the area.  Murphy stepped forward during the Ocean Spray investigation and admitted the application of parathion.  Parathion use violated the terms of the cooperative’s agreement and Murphy was forced to accept severe sanctions from the cooperative or be removed from membership.  Murphy chose to terminate his affiliation with the Ocean Spray Cooperative and has since sought alternative markets for his crops.  The incident also caused Murphy monetary losses under his prior contract with the Ocean Spray Cooperative. 

XIII.

            Ecology issued Notice of Penalty Incurred and Due No. DE 97WQ-S181 to Murphy on May 1997 assessing a penalty of $18,000 for violations of RCW 90.48.080 occurring in connection with the May 15, 1996 application of parathion to Murphy’s cranberry bogs.  The penalty was based upon the levels of parathion detected in Ditch No. 1 on six separate days between May 20 and May 28, 1996.  Murphy appealed the penalty to this Board where it was given PCHB No. 97-80.

XIV.

Any Conclusion of Law deemed to be a Finding of Fact is hereby adopted as such. 

From these Findings of Fact, the Board issues the following:

 

CONCLUSIONS OF LAW

I.

The Board has jurisdiction over the persons and subject matter of this appeal under RCW 43.21B and RCW 90.48.144.  In the appeal of a civil penalty the regulating agency has the burden of proving that a violation has occurred and that the penalty is reasonable.  M/V An Ping 6, PCHB No. 94-118 (1995).

II.

            Murphy was cited for violation of RCW 90.48.080, which prohibits discharge of pollutants into waters of the state:

It shall be unlawful for any person to throw, drain, run, or otherwise discharge into any waters of this state, or to cause, permit or suffer to be thrown, run, drained allowed to seep or otherwise discharged into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters according to the determination of the department, as provided for in this chapter.

 

III.

            Murphy admits that he applied parathion, a known toxic substance, to cranberry bogs that drain to Ditch No. 1.  Ditch No. 1 is a water of the state under the definition contained in RCW 90.48.020.  Therefore, Murphy has violated the prohibition of RCW 90.48.080 by causing a polluting substance to enter a water of the state.

IV.

            Civil penalties are addressed in RCW 90.48.144 which provides that each day of a continuing violation is considered a separate and distinct violation subject to a maximum penalty of $10,000 per day:

. . . every person who:

 

(3) Violates the provisions of RCW 90.48.080, or other sections of this chapter or chapter 90.56 RCW or rules or orders adopted or issued pursuant to either of those chapters, shall incur, in addition to any other penalty as provided by law, a penalty in an amount of up to ten thousand dollars a day for every such violation.  Each and every such violation shall be a separate and distinct offense, and in case of a continuing violation, every day’s continuance shall be and be deemed to be a separate and distinct violation.  …

 

Ecology assessed a penalty of $18,000 for water quality violations that extended from May 20 through May 28, 1996.

V.

            Murphy challenges the amount of the penalty assessed by Ecology.  The Board independently judges the reasonableness of a civil penalty based upon the following factors:  (1) the nature of the violation; (2) the prior behavior of the violator or history of violations; and (3) any remedial action taken by the violator.  Taylor v. SWAPCA, PCHB No. 94-264 (1995)

VI.

            The nature of this violation must be characterized as extremely serious.  Parathion is an highly toxic substance that has been banned by the EPA for use in this country.  It is a known toxin that presents a danger to humans, animals, fish and birds.  Murphy applied the pesticide with full knowledge that it was banned.  His only explanation for the illegal act was his need to address a fireworm problem in his bogs.  Other pesticides were available to treat fireworm, but Murphy chose to use parathion.  In addition, he applied it in a way that violated the label directions and caused contamination of a water of the state. 


VII.

            Murphy argues that the penalty should be reduced because the parathion was not applied at full strength and there was no evidence of fish or wildlife kills.  The severity of this pollution is evidenced by the fact that the reading some two miles from the application site was over the acute level for parathion on the first testing date, some five days after the application.  The parathion contamination persisted for several more days at well above the chronic level.  Exposures of this level are defined as hazardous by state law, with or without the presence of dead fish and animals. 

VIII.

            Murphy further contends that the penalty should be reduced because he cooperated in the investigation and admitted his actions.  Mr. Murphy is to be commended for his willingness to acknowledge his wrongdoing and to work with authorities to redress the situation.  Public health and water quality can best be protected by prompt and complete disclosure of prohibited acts.  Mr. Murphy’s testimony, however, also indicated that his cooperation was based on a perceived benefit to his ultimate liability.  He did not step forward until the discharge had been identified by third parties and at the hearing he questioned whether he would have cooperated if he had known how things would turn out. 

IX.

            Murphy has no history of past violations, but he was fully aware that parathion was a banned pesticide when he applied it to his bogs.  He intentionally applied the parathion for personal benefit without regard for the public safety, the governing regulations, or the position of other growers who used permissible pesticides. 

X.

            Murphy also seeks mitigation of the penalty because he has already suffered significant financial consequences as a result of this pesticide application.  He has obligations to Ocean Spray based upon contract provisions and must find markets for his cranberries without the assistance of the cooperative.  While these business realities are consequences of Mr. Murphy’s actions, they do not address the interests protected by state water quality regulations and Ecology’s penalty process.  

XI.

            Under the circumstances of this case, very little remedial action was possible once the parathion discharge occurred.  There is no evidence that Murphy made any attempt to confine the parathion runoff to his property or otherwise impede the pollutant from entering the public waterway. 

XII.

            Under the governing law, Murphy is liable for a penalty of up to $10,000 per day for each of the days of this continuing violation.  Given the serious nature of this violation, the continued parathion exposure above the chronic level for at least 8 days, and the knowing use of a banned pesticide for personal benefit, the penalty of $18,000 is reasonable and should be affirmed.

XIII.

            Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such.

            Based upon the foregoing Findings of Fact and Conclusions of Law, the Board enters the following:

ORDER

            The $18,000 penalty assessed by Ecology in Penalty DE 97WQ-S181 is AFFIRMED.

            Done this 4th day of February, 1999.

                                                            POLLUTION CONTROL HEARINGS BOARD

 

                                                            ROBERT V. JENSEN

                                                           

                                                            ANN DALEY

 

 

Phyllis K. Macleod

Administrative Appeals Judge, Presiding