North Dakota State University
NDSU Extension Service
Volume 19, No. 2, May 2001
Coordinator's Comments
2001 North Dakota Legislative
Session Roundup
Tempo and Gaucho Insecticides
for the Masses
Pesticide Storage Guidelines
New Civil Penalties for Damage and
Destruction of Crops
What Happens When Spray Drifts?
Section 18 Labels for 2001
Diazinon Revised Risk Assessment
and Agreement with Registrants
The growing season is hard upon us, so it is difficult to
think about anything but the task
at hand. However, I think the Legislature has certainly
given us all something to take pause and consider.
First, remember that all the laws that the legislature adopted
and are being mentioned in this newsletter will take effect
on August 1, 2001. This means that we have some breathing
space to do some planning. Plus, from a practicable standpoint, it
will simply take some time for everyone to start playing by
the new rules. While the Department of Agriculture does not plan to
go soft on its responsibility to enforce pesticide laws, it
does plan to work cooperatively with industry to get people
into compliance.
Over the next couple of months, several planning meetings will
be held to discuss how to best go about implementing
the legislature's directives, so I will not do any speculation here
on the details. I will say that the July issue of the Pesticide
Quarterly will be full of information, so be on the look out for it. It will
be coming your way in the second or third week of July. You
can also keep abreast of these matters by checking in from
time to time on the NDSU Pesticide Training and Certification
WWW Home Page. The URL is: http://ndsupesticide.org
In the meanwhile, have a safe and productive season.
Andrew A. Thostenson
NDSU Pesticide Program Specialist
2001 North Dakota Legislative Session Roundup
In addition to grappling over allocation of state dollars, dealing with
teacher pay increases, and getting used to a new governor, the legislature
found time to revisit some old pesticide issues and took on several
new challenges. Generally the issues
fell into three broad categories: pesticide harmonization with
Canada, genetically modified crop regulation, and applicator regulation.
What follows is a recapping of
the major pesticide related bills:
HOUSE BILL NO. 1287
(Failed on the Senate Floor)
A BILL for an Act to create and enact a new section to chapter
4-35 of the North Dakota Century Code, relating to the presence of
pesticides in agricultural products; and
to provide a penalty.
HOUSE BILL NO. 1434
(Failed on the House Floor)
A BILL for an Act to create and enact a new section to chapter
19-02.1 of the North Dakota
Century Code, relating to chemical residues in food.
HB 1287 and 1434 were intended
to prevent Canadian food or commodities which contain non-U.S. registered pesticides from being used in North Dakota. Since
these measures could lead to further trade disputes and because
North Dakota does not have control over international borders, they were
not adopted. House Concurrent Resolution No. 3042 was passed
as a partial substitute for these measures. The resolution
implores the US Congress to take up this matter. This is in the same vein as
a similar resolution from the 1999 Legislature, HCR No. 3035.
HOUSE BILL NO. 1328
(signed into law)
AN ACT to create and enact a new section to chapter 4-35 of the
North Dakota Century Code, relating to creation of a crop protection
product harmonization and registration board; to amend and
reenact sections 4-35-06.2 and 4-35-06.3
of the North Dakota Century Code, relating to funds received
for expenses paid relating to the registration of pesticides and
the minor use pesticide fund; to repeal section 11 of chapter 31 of the
1999 Session Laws, relating to the crop harmonization committee; and
to provide an appropriation.
HB 1328 calls for the creation of a new board to address the
problem of pesticide harmonization between the US and Canada.
Further clarification of this measure can
be found in HB1009—which is
the Commissioner of Agriculture's appropriation bill. This measure
split the legislature on partisan grounds with the Democrats charging that
it was a power grab and pork barrel politics. Republicans countered
that the measure would provide
for better working relationships between the various interest
groups (political parties, commodity organizations, and industry). In
addition, they asserted that the active participation of the
Governor's Office would elevate the visibility
of the issue.
Regardless of the partisan arguments, the bill removes the
responsibility of managing the Minor Use Pesticide grant fund from the
venue of the Pesticide Control Board (PCB). It then creates a new
and larger Crop Protection Products Harmonization Board to
administer this fund. This board will have 10 members as opposed to the
three members who presently serve on the PCB. The new board also
has the mission of studying laws, rules, policies, and economic
consequences of pesticide registration between Canada and the U.S.
The results of these studies would then lead to recommendations to
the legislature for action in future years. The new board will have the
power over the next biennium to spend $250,000 obtained through
pesticide registration fees and will have the authority to solicit and
spend $200,000 obtained from unspecified grants or donations.
HOUSE BILL NO. 1338
(signed into law)
AN ACT to provide for a legislative council study of issues related
to genetic modification.
HB 1338 originally called for a moratorium on the introduction
of genetically modified wheat varieties. This measure was being
suggested as a means of protecting the marketability or desirability of
North Dakota wheat. It was argued that the unfettered introduction of
these varieties could adversely impact export markets.
Considerable passion and argument ensued
over early versions of the bill. The debates were not along party
lines. Eventually, consensus was reached with a study being called for.
The final bill became law by wide margins.
HOUSE BILL NO. 1442
(signed into law)
AN ACT relating to the sampling
of genetically modified crops.
HB 1442 was passed into law by near unanimous majorities. It
is designed to provide some protection for farmers from seed
companies who merchandise genetically modified crop varieties.
Apparently the original sponsors of the legislation felt that seed companies
would be able, under current patent laws, to come unannounced onto
a farmer's land, retrieve crop samples, analyze those samples
in a perhaps biased manner, and then use the results of the analysis
in patent infringement cases. The law has many provisions for
protecting the basic land rights of the farmer and still protecting the
property rights of the seed company or patent holder. This measure will
no doubt be tested in the years
to come as millions of acres of genetically modified crops
come into production in North Dakota.
SENATE BILL NO. 2167
(signed into law)
AN ACT to amend and reenact sections 4-35-05, 4-35-06,
4-35-08, 4-35-09, 4-35-13,
4-35-1 5, 4-35-19, and subsection
4 of section 4-35.1-01 of the North Dakota Century Code, relating
to pesticide applicators.
SB 2167 is a wide ranging bill impacting primarily
commercial pesticide applicators. The origins of this measure flow from the
Pesticide Law Review Task Force convened by the Commissioner of
Agriculture this past fall. This task force, which was made up of industry,
regulators, and educators, recommended that the legislature require
people who apply pesticides for hire be certified regardless of the class
of pesticides used (presently only users of Restricted Use
Pesticides need be certified). The legislature concurred with this request in
a near unanimous manner in SB 2167. This will have a major
impact on commercial applicators
of pesticides in North Dakota.
SENATE BILL NO. 2419
(signed into law)
AN ACT to amend and reenact section 4-35-09.1 of the
North Dakota Century Code, relating to proof of financial responsibility
for commercial pesticide applicators; and to provide for a
legislative council study.
SB 2419 was introduced to repeal the Financial Responsibility
provision for commercial pesticide applicators. However, when the
bill reached the House, significant amendments were offered to
retain the law and reform it so that it could be administered and enforced
more effectively. Ultimately the House's amendments prevailed. In
addition to the reform of the present law, the measure asks the legislative
council to once again look into the question of drift liability insurance
requirements. The bill was approved by near unanimous margins.
OTHER LEGISLATIVE ISSUES
On other pesticide related matters, the legislature re-authorized
and made some small amendments to Project Safe Send, the popular
waste pesticide disposal program. Collections will again be organized for
July and will be spread out across the state at eight to 10 locations. No
pre-registrations will be necessary
for participation, but the Department of Agriculture will again
request advanced notice for large quantities.
Finally the legislature looked into the matter of eco-terrorism. They
passed a law which has severe civil penalties for people who destroy crops in
the name of environmental protest. Interestingly, some civil
liability lawyers are suggesting this new law may also be used to recover
damages arising from spray drift. (See separate article on New Civil Penalties
for Damage and Destruction of Crops.)
Tempo and Gaucho Insecticides for the Masses
Phil Glogoza, NDSU Extension
Entomology Specialist
Two insecticides long used in agriculture and the professional pest
control industries are now being marketed legally to homeowners and gardeners.
The two active ingredients are:
- cyfluthrin — known as
Baythroid and Tempo
- imidacloprid — known as
Admire, Provado, and Gaucho
The compounds are being sold as
a trademarked product line identified
as "Advanced Home" or "Advanced Garden." This will be similar to
a product line like "Ortho." Also
prominent on the label will be
the Bayer name and logo.
So what do they have and
where can they be used?
The cyfluthrin formulations are being sold for indoor pest control and
lawn and ornamental use. The indoor uses include: ants, cockroaches,
fleas, spiders, bedbugs, millipedes, silverfish, pantry pests. The outdoor
uses are: ants, bees, boxelder bugs, fleas, millipedes, mosquitoes, ticks,
wasps, crickets, clusterflies, and others.
Cyfluthrin is also being sold for vegetable gardens and
ornamentals. The vegetable uses are for insects on tomatoes, carrots, sweetcorn,
and peppers. Insects include armyworms, leafhoppers, corn borer,
Colorado potato beetle, grasshoppers, cutworms, and a few others.
PLEASE NOTE that the vegetable use on this label does NOT include POTATO.
The ornamental uses include lawns, ground covers, flowers, shrubs,
and trees. The list of insects is extensive and includes most of our
common insect pest groups.
Bayer is also marketing an imidacloprid product. Imidacloprid
is a systemic insecticide. They are selling it as a plant spike (fertilizer
+ insecticide). The spikes may be used ONLY on potted and
containerized plants, EXCLUDING edible plants, herbs, fruits or vegetables.
Insects controlled are aphids, leafhoppers, mealybugs, plant bugs, scales,
thrips, and whiteflies. So, the spikes can not be used in the garden.
If you would like to look at the labels, they can be found at:
http://www.bayeradvanced.com
Click on the banner for the home-lawn -garden to see products by use
area. They have different size packaging
for concentrated products, as well as ready-to-use (RTU). They even
have cyfluthrin available in granules.
Pesticide Storage Guidelines
From Gerry Thompson at the
North Dakota Department of Agriculture -- March 2001
THE OVERALL SITE SELECTION SHOULD BE:
- Away from people, animals and water sources.
- Located so the prevailing winds blow across the doors so the
fumes don't accumulate in one
end of the building.
- In an area where possible runoff won't contaminate water sources.
- In accordance with all federal, state, and local codes.
- In an area where a secure fence can be erected or is already
in place.
THE STORAGE AREA SHOULD:
- Be in a separate or isolated area.
- Have good ventilation and lighting.
- Have a smooth finished concrete floor with a curb around the
outer edge.
- Have explosion proof wiring, switches and outlets.
- Be on the first floor with immediate outdoor access.
- Not be below ground or on any level other than ground level.
- Have a good water source and supply.
- Have a selfcontained drainage system.
THE INTERNAL STORAGE AREA SHOULD HAVE:
- Check valves in the water lines
so there is no back siphoning.
- Security locking doors in addition to the fence around the area.
- Fire extinguishers by each entrance.
- A fire warning system outside
and in the building.
- Warning signs posted which are readable from 50 feet.
- A sink with soap and water.
- A purge shower or a water tank for immediate body washing.
- Clean-up supplies in case of an emergency.
- Protective clothing close to the storage area but not in
the storage area.
- No storage directly on the floor.
- Sufficient area to separate different types of pesticides.
- A phone list of people to contact in case of an emergency.
OTHER CONSIDERATIONS:
- Read the label, the label is the law.
- Store pesticides only in their original containers.
- Store the empty containers with the same care as a full container.
- Have a fire emergency plan filed with the local fire department.
- Keep the storage area clean at all times.
- Check the storage area often for spills or leaks.
- Have a good record keeping dating system to give an up to date inventory analysis.
- Plan purchases and applications, so there is minimal carryover.
- Keep all exits clear at all times.
- All containers must have an approved label attached.
SPILL KIT EQUIPMENT
- Two pairs disposable coveralls
- Two pair' rubber gloves
- Two pair' rubber boots
- Two fullface respirators with canisters
- Absorbent material such as cat litter, absorbent rags, etc.
- Box of household detergent
- Sweeping compound
- Hand held equipment: brooms, mops, shovels and two buckets
- Chalk and/or crayons
- Two face shields
GENERAL SPILL CLEAN-UP PROCEDURE
- Outline the spill area with chalk
or crayon.
- Put sweeping compound on a dry spill, absorbent material on a
wet spill, and sweep to the center of
the spill area.
- Shovel up the residue and repeat steps 2 and 3 until the
spilled material is removed.
- Decontaminate the area as specified on the container label.
- After decontamination, rinse the area with clean water.
- Dispose of cleaning equipment, which can't be
decontaminated, and all contaminated materials
at a hazardous waste disposal site.
BULK PESTICIDES
- Eliminates triple rinsing of containers and container disposal.
- Saves time, money and space.
- More accurate metering with no physical contact with the pesticide.
- Questions? Contact the ND Department of Agriculture at 3282231.
DISPOSAL
Carryover chemicals:
- Plan so there is minimal carryover.
- Dilute and use in spray mixture on allowed crop.
- Apply as label specifies on permitted crop, fallow ground or pasture land.
Empty containers:
- Triple rinse and recycle or dispose of in a sanitary landfill.
- Burn paper if allowed on label and by state and local ordinances.
- Store carefully and sell as scrap material if scrap dealer accepts.
New Civil Penalties for Damage and Destruction of Crops
In response to a requests from the American Crop Protection
Association (ACPA) the North Dakota Legislature enacted a law addressing civil
liability penalties for people that "willfully
and knowingly damage or destroy any crop….").
This law reads as follows:
SENATE BILL NO. 2280
(signed into law)
AN ACT relating to awards for the damage and destruction of
crops, livestock, or commodities.
BE IT ENACTED BY THE
LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. Damage or
destruction of crops, livestock,
or commodities damages.
- A person is liable for damages as provided in subsection 2
if that person willfully and knowingly damages or destroys
any crop, livestock, or commodity which is being produced,
or has been produced for:
- Personal or commercial
purposes; or
- Testing or research purposes as part of a
product development program
in conjunction with or in coordination with a
private research facility, a university, or any federal, state, or
local government entity.
- In awarding damages under subsection 1, a court
shall consider the market value
of the crop, livestock, or commodity before the damage
or destruction and the production, research, testing,
replacement, and development costs directly related to the crop, livestock,
or the commodity. A person found by the court to have
been damaged under this section may recover
reasonable attorneys fees, exemplary damages, and twice the
market value of the crop, livestock,
or commodity before the damage or destruction and twice the actual
production, research, testing, replacement, and development costs.
Damages to crops, livestock,
or commodities under this section which are
reasonably necessary under a written contract or recorded
easement duly entered into by the crop, livestock, or commodity
producer are not recoverable.
- This section does not
preclude or limit any other right or remedy available under law
or equity.
The law was introduced at the urging of ACPA to address
eco-terrorism. Eco-terrorism is loosely defined as someone destroying or
damaging something or harming someone for the purposes of making a
political statement about the environment.
In its most extreme form, the "Unabomber" killed in the name of
the environment. To a lesser degree, it has led to the malicious destruction
of crops and research trials grown from genetically modified seeds in
Europe and more recently in North America.
This law gives powerful and severe redress to a damaged party,
i.e., exemplary damages (any amount of money the court chooses to
assess), twice the actual value of the loss,
and reasonable legal fees.
One of the drawbacks, or advantages, of the law (depending on your
view), is that it does not specify eco-terrorism as the reason for the damage.
So, it leaves the damaged party the option of using it to remedy any
damages incurred regardless of the reason. This could include spray
drift. It does not matter what the intention
of the law is if the plain language of the law is clear. In this situation it is
clear that the damage could be caused
by any means or motivation.
The real difficulty for a plaintiff would be to prove that someone
"willfully and knowingly" damaged a crop
via spray drift. If it could be proven that an applicator clearly disregarded the
law or the environmental conditions, and this led to a crop loss, then the
burden might be carried.
Someone who causes spray drift damage by not heeding
obvious environmental conditions or accepted best management practices
could indeed face serious consequences. Given the appropriate
circumstances and the stakes involved, it is
highly probable that this argument will be made in a court of law in the
near future.
What Happens When Spray Drifts?
From Jerry Schleicher,
Agricultural Aviation March 2001.
Published by the National Agricultural Aviation Association
If you work in the agricultural
application industry long enough, odds are that sooner or later
someone — a farmer, a homeowner, perhaps a field worker — will
claim that they or their property has been exposed to your spray drift.
If you're lucky, and there's no
significant property damage, you
may be able to settle the complaint with a simple apology, or reach
an out-of-court settlement. But if the claimant files a complaint with
state pesticide regulatory authorities, and state investigators confirm that
spray drift did occur, you'll want to immediately contact your insurance
carrier, who may also attempt to reach an out-of-court settlement. If neither
you nor your insurance carrier can successfully negotiate a
settlement, you may eventually find yourself in
a courtroom.
Is spray drift inevitable?
Experts say that no matter what
spray nozzle or boom configuration you use, some amount of spray drift
is inevitable. Even on the best day,
an errant gust of wind can carry microscopic droplets across a
county road to another field, or a farmyard,
or a tree line. Temperature inversions can keep spray droplets suspended
in the air long enough for even the gentlest air currents to carry them
off-target. Or maybe you're just a tick slow in closing the spray boom
when you finish a pass and pull up to clear the power lines stretched across
the end of the field.
"There's always going to be some drift when a chemical is sprayed into
the air, whether you're using an airplane or a ground rig," says L.B. Davis,
a veteran investigator who first began investigating spray drift claims back
in the 1950s." As the wind travels across the ground in a rolling motion,
any spray particles present will be mixed into the air by this rolling motion up
to a height determined by atmospheric conditions," continues Davis,
who owns Davis Ag Consultants, Inc. in Leland, Mississippi. "And the
presence or absence of a temperature inversion is possibly more
important than the wind velocity. Even when wind speeds are only 2 to 3 mph,
a temperature inversion can result
in pesticide drift traveling long
distances."
So how far can spray drift travel?
"I've personally traced spray drift
from ground sprayers for five or six miles before losing it in a drift
pattern from another source," he reports.
"And the Arkansas State Plant Board once traced drift from a
ground sprayer for 10 miles, before quitting when the drift pattern crossed
the Missouri state line."
Most incidental drift settles to earth with no noticeable effect. But
when chemical drift does result in real or perceived damage to property
or human health, it can prove costly
to the applicator who produced it.
Are spray drift complaints increasing?
Yes and no. According to results of the American Association of
Pest Control Officials (AAPCO) 1999 Pesticide Drift Enforcement
Survey released last year, a total of 2,562 spray drift complaints were
registered with state regulatory officials in
1998. Of that total, 820 complaints involved agricultural aircraft, with 378 of
those complaints confirmed by
state authorities.
While that's a sizable increase over the 591 complaints involving
ag aircraft in 1997, and the 630 received in 1996, these statistics can
be deceiving. First of all, not all states were included in the 1996 and
1997 surveys. Secondly, it's important to note that just 46 percent of the
drift complaints lodged against aerial applicators in 1998 were confirmed by state authorities.
Why so many unfounded spray
drift complaints? As urban families continue to migrate to
housing developments in rural areas, the line between agricultural land and
suburbia has become blurred. New homeowners expecting to hear the chirp
of birds in the morning may suddenly awake to the sound of an ag
aircraft at dawn. Residents who have never before experienced rural life
may believe that if they can smell a chemical odor in the air, they and
their children have been exposed to it.
The extent of consumer misperceptions can vary according to the
area of the country. Aerial applicators who work near suburban housing
developments outside large cities like Denver, Minneapolis and Orlando are
more likely to hear complaints than their colleagues located in rural areas
of Nebraska, Iowa or Arkansas.
"Actually, I'd say the number of drift complaints we receive about
aerial applicators in our state have
decreased somewhat in the past few years," reports Tim Creger,
Program Manager for the Nebraska Pesticide Program. Out of a total of 35
spray complaints our office received in 1998, for example, only five
involved agricultural aircraft. Generally speaking, I'd say the aerial applicators
in our state are doing a better job than the ground applicators, thanks
to educational programs like the PAASS program, Creger adds. "Every
season we'll get a few complaints about aerial applicators, but most are related
to odor or concerns about health effects. Here in Nebraska, most of the
aerial work involves insecticides and fungicides, so we receive very
few crop damage complaints."
What should you do when
a complaint is filed?
Most spray drift complaints never reach the ears of the state
authorities. If a property owner believes spray
drift from your aircraft has resulted in crop or property damage, he or she
may contact you directly, and ask you to pay for damages. If it appears that
the complaint is valid, some aerial applicators prefer to settle the
complaint privately, rather than contacting their insurance carrier.
But when the property owner and applicator are unable to reach
agreement on a settlement, or if the property owner first contacts a
county extension agent or the state pesticide regulatory office, the process
can quickly become more complicated.
"When someone with a spray drift complaint agrees on a settlement
with the applicator, we may never even hear about it," says Creger.
"But once our office receives the
call, we are obligated to send an investigator to visit the site to
determine if the complaint is legitimate."
State investigators who visit the
site may gather plant samples and send them to a testing laboratory
to determine the presence of chemical residues. If residue samples
reveal the presence of the suspected chemical, authorities may issue
a warning letter to the applicator. Some states may assess a fine for a
label violation, while other states may go
so far as to pull the applicator's license after two or three violations.
If an applicator shows intentional disregard for state pesticide
laws, some states can impose fines of thousands of dollars, or even jail time.
When should you contact
your insurance broker?
Equally important is the legal
exposure an applicator can face if
the state determines that he was at fault in permitting spray drift to
occur. L.B. Davis suggests that as soon as you learn state investigators plan
to investigate a complaint, you should notify your insurance broker.
One of those brokers is Gerald Andrews, a well-known
aviation insurance expert whose company, AirSouth Insurance, covers
aerial applicators from Arkansas to Florida. The minute that Andrews receives
a call from an aerial applicator, he immediately begins gathering
as much information about the incident as possible, and forwards it to
the insurance company's claims department. The insurance company, in
turn, may assign an investigator like L.B. Davis to inspect the site.
As soon as Davis receives an assignment, he immediately contacts
the operator to fill in any information that may have been left out of the
initial report. He or one of his investigators then arrange to travel to the area
to inspect the property, and the area between the field sprayed and
the area where damage is alleged.
If the complaint involves a herbicide or other material that leaves
symptoms on plants, investigators follow the trail of those symptoms to determine if
the material did, in fact, drift from the spray site to the area where
damage is alleged to have occurred.
"If we find that drift did occur, we'll determine the extent of the
damage, and make a recommendation as to how the crop should be handled
from that point on," says Davis.
"Sometimes we'll recommend that
the crop be plowed up and replanted, maybe to a different crop. Or,
assuming that not all of the field was damaged, we may try to document
the acreage and arrange for a comparison harvest between the
damaged and undamaged areas before we arrive at a settlement."
How much will it cost you to settle a spray drift complaint?
According to Gerald Andrews, the insurance policies carried by
most aerial applicators include $100,000
in liability insurance, with a $1,000 deductible clause. "About 95
percent of all spray drift complaints we see are settled out of court,"
Andrews continues. "Most of those claims involve herbicide damage to
lawns and flowers, or ornamental or fruit trees, and about half of those
are settled for between $2,000 and $5,000."
What about alleged exposure to human health?
While most spray drift cases
involve alleged property damage
to crops, trees or lawns, some cases involve claims of bodily injury.
Gerald Andrews says he's seen a slight increase in claims involving
human exposure to spray drift in the past five or six years, but notes that most
such claims are disproven, or settled out
of court. Nonetheless, these cases have the potential to result in
sizable lawsuits.
L. B. Davis says that in a case of alleged human exposure, it's just
as important to gather evidence early
as it is in cases of property damage.
If he or his investigators reach the
site soon enough, they'll collect
swab samples for laboratory analysis. If state investigators collect
residue samples from the clothing the
individual was wearing, they try
to obtain copies of that data.
Investigators also request copies
of the claimant's medical records, including blood work-ups. All
evidence and data is then submitted to a medical doctor and toxicologist,
who compares the data with the known toxicity of the chemical
or chemicals involved in the alleged spray drift claim. Industry experts
say most claims of human exposure are disproven, or settled out of court for
a reasonable amount. But occasionally, a sympathetic jury may award
an enormous settlement. All the more reason to settle the claim before
it goes to court.
What happens when the case goes to court?
Actually, no more than 5 percent of all spray drift cases go to court, experts agree. When a case does
go before a judicial hearing or a jury trial, aerial applicators and
their insurance companies want the most experienced defense attorney
they can find.
Only a few defense attorneys
specialize in aerial spray drift claims. One of them is Fred Begy III,
a partner with the Chicago law firm
of Kaplan, Begy, von Ohlen. Begy, who says he's defended more than
a thousand aerial spray drift lawsuits in the past three decades,
has represented aerial applicators in
class action lawsuits involving Medfly spraying in California, and cases
of alleged human exposure to aerial spray drift that have been profiled on 60 Minutes.
If you find yourself involved in a
spray drift lawsuit that's headed for court, here's what you can
expect, according to Begy. "Defense lawyers will begin by evaluating the
data gathered by the outside investigator," says Begy. "At the same time,
we'll counsel the applicator to avoid any communication with the claimant,
or their attorneys or investigators, and advise them how to deal with state
or federal investigators."
Next comes the discovery process, when attorneys for both sides
seek documents they believe are essential to their case.
"For example, the attorneys for the claimant will seek documents from
the aerial applicator, so it is very important that the applicator
maintain all records required by state and federal statute," Begy explains.
"At the same time, attorneys for the aerial applicator will discover
documents regarding the crop alleged to have been damaged ... when it
was planted, the source of the seeds or seedlings, what investigation
the claimant did regarding the alleged damage, and the yields that
farmer has obtained from his crop in previous years. If the case alleges bodily
injury, the discovery process will also obtain medical records."
Attorneys for both parties will also collect depositions, taking
testimony from the pilot, the owner of the agricultural aviation firm, the
claimant, investigators who were called in to investigate the site, or witnesses
who may have observed the spray operation. Some of those who
are deposed may also be later called to the stand as expert witnesses. In
the case of alleged human exposure,
a medical doctor may be asked to testify how exposure to the
chemical can result in bodily injury to an organ, the eyes, or skin.
Once the case goes to court, the parties involved have the option
of requesting a judicial hearing or a jury trial. Depending on the outcome of
the trial, either the judge or the jury may return a verdict for property
damage or bodily injury. At that point, Begy adds, the defense may file an appeal.
"The entire process can take years, Begy adds. "Many of the cases
we're representing today occurred as long as two or three years ago."
You CAN minimize spray drift complaints.
First, remember that "the label is the law." Always follow label directions
for every product you apply, and remember that labels vary. Some
products stipulate a maximum wind speed of 10 mph, while others may be
applied only when wind speeds are 5 mph
or less. Some products stipulate
a mandatory buffer zone, others mandate a spray gallonage per
acre. Yet other materials subject to Worker Protection Standards require that
the applicator provide the time and date of application and other basic
safety information to the customer, who in turn must notify any workers who
will enter the field in the next 30 days.
Even when wind speeds are below approved maximum velocity,
experts recommend you plan your spray pattern so that drift particles
travel downwind and away from sensitive areas. Aerial applicators agree
that GPS guidance systems can help them avoid sensitive areas, and
that systems which include data-loggers provide a valuable tool to show
the location of each swath.
Public relations can also play a role in reducing complaints. Some
operators who work in sensitive areas containing residential neighborhoods
or around individuals known to object to aerial spraying, have found it
helpful to notify adjacent property owners
in advance of spray operations.
Can spray drift be controlled?
Yes. Can spray drift complaints be minimized? Yes again. All it takes
is common sense to know when
and where to spray, compliance with state and federal laws, a
positive relationship with your customers
and their neighbors, and a little luck.
Section 18 Labels for 2001
Jim Gray, Pesticide Registration Specialist with the North Dakota Department of Agriculture
reports in the accompanying tables the status of "Section 18 Emergency or Crisis Exemption" labels
granted by EPA as of May 4, 2001.
Copies of these labels plus other "State and Local Needs" labels
can be found at the Pesticide Training and Certification WWW Home Page.
The URL is http://ndsupesticide.org
Fungicides
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Brand Name Crop Newsrelease Date Label
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Eminent 125SL Sugarbeets January 10, 2001 Approved
Folicur 3.6F Barley February 6, 2001 Approved
Folicur 3.6F Sunflowers January 9, 2001 Approved
Folicur 3.6F Wheat February 6, 2001 Approved
LSP Gustafson Lentil Seed March 2, 2001 Approved
LSP Mertect Lentil Seed March 2, 2001 Approved
Purogene Potatoes in Storage Pending Pending
Tilt Drybeans January 9, 2001 Approved
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Herbicides
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Brand Name Crop Newsrelease Date Label
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Curtail M Flax March 29, 2001 Approved
Plateau Range/Pasture April 5, 2001 Approved
Poast Safflower Pending Pending
Poast Buckwheat Pending Pending
Raptor IMI-Canola January 2001 Approved
Raptor Drybeans March 19, 2001 Approved
Reflex Drybeans March 29, 2001 Approved
Sonalan Canola April 16, 2001 Approved
Sonalan Safflower April 25, 2001 Approved
Spartan Chickpeas & Drypeas April 24, 2001 Approved
Spartan Sunflowers March 22, 2001 Approved
Stinger Canola April 5, 2001 Approved
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Insecticides
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Brand Name Crop Newsrelease Date Label
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Checkmite + Beehives April 12, 2001 Approved
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Diazinon Revised Risk Assessment
and Agreement with Registrants
Action and Rationale
EPA is releasing its revised risk assessment and announcing
an agreement with registrants to remove and phase out certain uses of
the organophosphate pesticide diazinon. Also known as Spectracide and
other trade names, diazinon is one of the most widely-used insecticides in
the U.S., especially for household lawn and garden pest control.
The Food Quality Protection Act, enacted in 1996, sets a more
stringent safety standard for most pesticides and offers special
protection for children. EPA has accepted a voluntary agreement from the
manufacturers of diazinon to modify the uses of this pesticide to address
the tough new safety standard of FQPA.
The Agency accepted the termination of all indoor residential and
indoor non-residential uses of diazinon. EPA and the registrants also have
agreed to phase out and cancel outdoor residential lawn and garden uses
(i.e., all outdoor non-agricultural uses) over the next few years.
Together, these actions will end about 75% of the current use of diazinon. EPA
and the registrants have further agreed
to remove about one third of the agricultural crop uses of diazinon. This action will also help mitigate
risks to workers, birds and other wildlife, drinking water resources, and
the environment.
Risk Mitigation
EPA and the registrants of diazinon have agreed to the following
modifications:
- Reducing Residential Risks...
About 75% of diazinon currently
is used in and around the home. Diazinon accounts for about 30%
of the homeowner use insecticide market. The agreement will result
in termination of all retail sale of diazinon for residential crack
and crevice treatments and all other indoor uses by the end of 2002.
The agreement also virtually ends sales of the residential lawn
care use of diazinon in 2003, and provides for orderly transition to
a new product line. The home lawn care use accounts for most
residential exposure but less risk than the indoor use of diazinon. Under
the agreement, production of diazinon for home lawn care and all
other outdoor non-agricultural uses must phase down at least 50% by
2003. Production, formulation, and sales to retailers are scheduled to
phase out and end completely during 2003. Registrants will buy back
any products from retailers that remain at the end of 2004. However,
few retail products for home lawn care uses are expected to remain in
the market by that time.
- Reducing Ecological Risks...
Broadcast application of diazinon
to turf poses one of the greatest pesticide risks to birds. Just
one granule or seed treated with diazinon is enough to kill a
small bird. Diazinon had the highest number of reported bird kill
incidents of any registered pesticide during 1994-1998. Birds of
many species have been killed, including ducks, geese, hawks,
songbirds, woodpeckers, and others.
Since residential use of diazinon
accounted for over half of these incidents, phasing out and
canceling the outdoor residential uses is expected to further mitigate risks
to birds and other wildlife.
Diazinon is one of the most commonly found pesticides in air,
rain, and fog. Monitoring data indicate that while it is widespread in
surface water nationally, diazinon is most commonly found in surface water
in urban areas as a result of runoff from residential use. Phasing
out and eventually canceling the outdoor residential uses of diazinon, as well as some current agricultural uses, will help reduce residues
of diazinon in surface water and throughout the environment.
- Reducing Drinking Water
Risks... The agreement to phase out and cancel all outdoor residential
uses of diazinon is expected to reduce human exposure to
diazinon through drinking water, since residential applications are
potentially a major source of drinking water contamination.
- Reducing Worker Risks...
Risks to agricultural workers who mix, load, and apply
- diazinon or harvest treated crops also are of concern to EPA.
The agreement will help
- mitigate worker risks by
canceling about 30% of the current agricultural uses
of diazinon. The agreement also
will maintain the Restricted Use Pesticide classification for
remaining diazinon crop uses so they will continue to be limited
to trained, certified applicators. These and other measures
to reduce both worker and ecological risks will be discussed
further in consultation with stakeholders as EPA develops an
interim reregistration eligibility decision for diazinon.
- Supporting Low-Risk Uses... The agreement allows about 70%
of current diazinon agricultural uses to continue. The continuing
diazinon uses are important to the production of many minor crops, and do
not exceed the "risk cup" for diazinon. EPA will further consider
worker and ecological risks in developing risk management options,
considering public comments received during the next 60 days, and
in completing an interim reregistration eligibility decision for diazinon.
Phased In Approach
The diazinon agreement phases in various restrictions and
cancellations to address higher risk, indoor
residential uses first. Because much pesticide risk reduction involves
increasing margins of safety, it is reasonable
to focus first on uses that achieve
the greatest risk reduction for children. Allowing other uses to continue
for specific periods of time will help ensure that appropriate
alternatives are available for a reasonable and orderly transition.
Reregistration of Diazinon
The risk mitigation measures in this agreement represent an
important step in EPA's review of diazinon.
As the Agency continues its review
of diazinon through the reregistration process, we will continue to look
at both occupational and ecological risks to ensure that diazinon meets
current safety standards. If EPA determines that unreasonable risks remain
for workers or the environment, the Agency will incorporate additional
risk mitigation measures as part of the interim reregistration
eligibility decision.
Provisions of the Agreement and
Associated EPA Actions: Home Uses
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Site Mitigation Measures Effective Dates
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Indoor Uses Product registrations Cancellations become
All uses inside are being canceled or effective after the
any structure, amended to delete indoor 30-day public comment
vehicle, vessel, uses from end use period, upon issuance
aircraft, or product labels (except of a cancellation
enclosed area use in mushroom houses). order in February
and/or on any EPA's Federal Register 2001.
contents notice of January 10,
therein (except 2001, proposed to delete As of March 1,
mushroom houses), these uses. 2001, manufacturing
including use products may no
residences, longer be used to
food/feed handling formulate end use
establishments, products for
schools, museums, indoor uses.
stores, hospitals,
sports facilities, Retailers stop sale
warehouses, and December 31, 2002
greenhouses. All
indoor pet uses
including pet
collars.
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Home lawn, garden, Production will Technical registrants
and any other phase down reduce amount of
outdoor diazinon produced
residential or by 50% or more
outdoor non- by 2003.
agricultural uses
Uses will be phased out Stop formulation of
products June 30,
2003. Stop sale to
retailers August 31,
2003
Technical registrants Commencing
will buy back existing December 31, 2004
products from retailers
Product registrations December 31, 2004.
will (expire) be
canceled, with no
provision for existing
stocks
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Agricultural Uses Proposed for Cancellation
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Crop Action Effective Dates
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Alfalfa, Bananas, EPA published a Federal The proposed
Beans (dried) Register notice on cancellations may
Bermudagrass, January 10, 2001, become effective
Celery, Red proposing to delete after the 30-day
Chicory these uses public comment
(radicchio), from product labels. period, upon
Citrus, Clover, issuance of a
Coffee Cotton, cancellation order
Cowpeas, Cucumbers,
Dandelions, Kiwi,
Lespedeza, Parsley,
Parsnips, Pastures,
Peppers,
Irish Potatoes,
Sweet Potatoes,
Rangeland,
Sheep Sorghum,
Spinach, Squash,
(summer and winter),
in February 2001.
Strawberries,
Swiss chard,
Tobacco, Tomatoes,
Turnips
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For Additional Information
For additional information on the diazinon agreement or other aspects of the Agency's pesticide regulatory program,
contact EPA's Office of Pesticide Programs at (703) 305-5017,
or visit our web site, http://www.epa.gov/pesticides
Pesticide Quarterly, Volume 19, No. 2, May 2001
NDSU Extension Service, North Dakota State University of Agriculture and Applied Science, and U.S. Department of
Agriculture cooperating. Sharon D. Anderson, Director, Fargo, North Dakota. Distributed in furtherance of the Acts of
Congress of May 8 and June 30, 1914. We offer our programs and facilities to all persons regardless of race, color, national
origin, religion, sex, disability, age, Vietnam era veterans status, or sexual orientation; and are an equal opportunity employer.
This publication will be made available in alternative format for persons with disabilities upon request 701/231-7881.
North Dakota State University
NDSU Extension Service
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