Volume 25, No. 4 October 2007
EPA Launches Endangered Species
Bulletin Web Site
Coordinator's Comments
Toronto, Canada's, Pesticide Bylaw and Natural Lawn and Garden Care
2007-08 Commercial Pesticide Certification Calendar
Training Opportunities for New Applicators/Dealers
Texas Department of Agriculture Levies
Fines in Aluminum Phosphide Incident
Certified Crop Adviser Continuing
Education Units Available at
Commercial Pesticide Applicator Trainings
Liability of Pesticide Exposure
Training Pre-registration
Nontraining Study Materials
Under the Endangered Species Act (ESA), the government
protects endangered and threatened plants and animals (listed species) and
the habitats upon which they depend. The ESA requires federal agencies
to ensure that any action it authorizes, funds or carries out does not
"adversely impact" any listed species or "destroy or
adversely modify" any critical habitat for
that species.
The Environmental Protection Agency's Endangered Species Protection Program (ESPP) helps promote the recovery of listed species. The ESPP is a program designed to determine whether pesticide use in a certain geographic area may affect any listed species. If limitations on pesticide use are necessary to protect listed species in that area, the information is related through Endangered Species Protection Bulletins. These bulletins can be found at the EPA's Bulletins Live! Web site: www.epa.gov/espp/bulletins.htm
The EPA will evaluate species concerns within the context of pesticide registration, reregistration and registration review so that when a registration or reregistration decision is made, it fully addresses issues relative to listed species protection. If a risk assessment determines that use limitations are necessary to ensure that legal use of a pesticide will not harm listed species or their critical habitat, the EPA either may change the terms of the pesticide registration or establish geographically specific pesticide use limitations. When geographically specific use limitations are necessary, they will be reflected in Endangered Species Protection Bulletins.
Bulletins identify the species of concern and the name of the pesticide's active ingredient that may affect the listed species. They also provide a description of the protection measures necessary to protect the species and contain a county-level map showing the geographic area(s) associated with the protection measures, depending on the susceptibility of the species to other factors, such as vandalism. Bulletins will be effective and enforceable as part of the product label. The bulletins are dated within six months of pesticide use.
If your pesticide label directs you to the above Web site, you are required to follow the pesticide use limitations found in the bulletin for your county, the pesticide's active ingredient and the application month.
The EPA's bulletins contain the following information:
Important point to remember:
(Editor's note: At the time of this writing, no bulletins are in
North Dakota that describe specific
use limitations for a particular pesticide. However, due to
the nature and immediacy of the
World Wide Web, this can change in a moment's notice. Therefore,
the best way to manage this is
to review your label prior to the expected use season and look
for endangered species restrictions.
If the label refers you to a bulletin, you must go to the above site
and verify if bulletins exist for your particular site of application.)
As I write, we are working out the final touches on our training game plan for 2007-08. As you can see from our offerings in this newsletter, it will be a very busy season. Nonetheless, we are looking forward to it.
One thing we will not be looking forward to is the retirement of
Gerry Thompson, enforcement coordinator with the North Dakota
Department of Agriculture (NDDA). I keep forgetting how long he has been
with the department, but as I recall, he started out as an inspector in the
late 1980s. He has been a fixture around the state and, frankly, not seeing
him on the training circuit delivering the department's presentations will be
a bit disconcerting.
The first time I met Gerry was when I interviewed for this job in the fall
of 1997. I recall that he asked how I felt about regulations and regulators
and whether or not I would feel
comfortable working around them, especially since I had mostly
an industry and academic background. I do not remember my exact
answer, but I know I wasn't prepared for it and of all the questions I was
asked that day. I thought my response
was lame at best and probably even incoherent and rambling.
Thankfully, Gerry did not and has not held
that response against me. Instead,
I have been blessed to have him be a mentor of mine, and I think many
of the better parts of this program have been a direct result of his
excellent counsel through the years.
Further, in conversations with industry representatives across the state, I have been impressed, though not surprised, that so many have expressed high praise for Gerry. On the face of it, this would seem odd since Gerry's role with the department has been enforcement (the heavy hand of government). But, for the most part, folks view his work as essential. He and his crew at the NDDA keep a check on pesticide use and in so doing are one of the primary means of assuring the general public that pesticides are being used in a manner that will not result in unacceptable risks to them or the environment. I've also heard from people who have had dealings with him involving enforcement actions or incidents. Like it or not (mostly not), they often remark that he acted fairly and professionally with them.
Finally, the flip side of Gerry not being with the NDDA means that
we in the NDSU Pesticide Program can tap him for special projects and
have him help us organize and manage our training events. This past
year, Gerry's wife, Karen, was on the circuit with us, and this season
we will have the both of them helping out. Otherwise, I know when he
is not out and about with us, he is looking forward to doing
some traveling and enjoying his son's family, which recently moved
back to Bismarck from Utah.
Thanks for your fine work through the years, Gerry. And you have our best wishes on your next endeavors.
For those of you who will be
participating in trainings this season, we will see you soon. For the rest,
we will catch you in future issues
of the Pesticide Quarterly.
All the best,
Andrew A. Thostenson,
Pesticide Program Specialist
Editors note: Toronto no longer controls dandelions with
standard herbicide products. In fact, as of Sept. 1, 2007, if you use these
products commercially or as a homeowner, you could be
subjected to a fine up to $5,000. This is not just a single city in Canada; 133
other municipalities have similar bans. While these sorts of laws have
not become widespread in the U.S., ample evidence suggests many
cities are examining this sort of idea and are implementing restrictions
that ultimately are aimed at achieving severe restrictions on the use
of commonly used pesticides. Below
is an extract from the Toronto
Public Health Web site
(www.toronto.ca/health/pesticides) that describes the law.
On April 1, 2004, the city of Toronto passed a bylaw banning the use of pesticides on all public and private property except in certain situations. The law applies to everyone, including homeowners, renters, lawn care companies, golf courses and property managers.
To allow people time to get familiar with the bylaw and alternatives to pesticides, the city phased in full enforcement of the bylaw. Starting Sept. 1, 2007, anyone breaking the bylaw is subject to fines of up to $5,000.
Does the bylaw restrict weed killers?
Yes. Weed killers (also called "herbicides") are a type of pesticide, so are covered under the bylaw. Pesticides include products that kill weeds, insects and plant diseases.
Can I still use fertilizers?
Yes, but not if the fertilizer contains weed killer. "Weed and feed" products are not permitted. Read the label on the product and avoid products that contain ingredients like 2, 4-D, mecoprop or dicamba.
Why is the city involved in the way I handle my own lawn or garden?
Pesticides can be dangerous, and not just to the people who use them. Scientists have identified links between exposure to pesticides and serious health problems, including harm to reproductive and nervous systems. Children are particularly sensitive to the effects of pesticides, as are some adults.
How does my pesticide use harm others?
Any pesticide use may put your health or others at risk. Pesticides from your property can drift in the air and may wash into rivers, streams and sewers, eventually finding their way into Lake Ontario. That's the source of our drinking water. For the benefit of all residents, we need to reduce pesticides.
How am I supposed to know which products I can use and which I should avoid?
The bylaw permits the use of pesticides that contain certain lower-risk ingredients. The easiest way is to read the label to find out what the product contains. The ingredients are listed on the label in small print next to the word "Guarantee."
Choose pest control products only
if they contain one of the following ingredients:
Avoid pest control products that contain the following ingredients:
(Note: This is not a complete list of ingredients to avoid.)
How can I learn more about keeping my garden looking good without pesticides?
The first thing you need to know is that it can be done. You don't need pesticides to make your garden look good - healthy soil and plants will resist most weed and insect problems. Our Go Natural section contains all the information you will ever need to keep your lawn and garden healthy and pesticide-free.
(www.toronto.ca/health/pesticides/go_natural_tips.htm)
Need help with
Here are schedules you can use for planning your training needs during the next several months. These recertification trainings are structured to give currently certified applicators/dealers the information necessary to maintain or renew their certificates in the appropriate categories.
Preregistration is required for all trainings because of material and space limitations. If you do not preregister, you have no guarantee you will get seated at the training.
A Training Preregistration form is published in this newsletter. Electronic forms for downloading and printing also are available at http://ndsupesticide.org.
Home-study course recertification is available for those categories that are not on the training calendar or for the following minor categories: greenhouse, home industrial and institutional, metam-sodium, public health, vertebrate and wood preservation. Request your materials for these courses with the Nontraining Study Materials request.
AgPest, Right-of-Way, Seed Treatment, Research and Demonstration Recertification
| Date | Time | Location |
| Nov. 28, 2007 | Registration 7:30 a.m.; Training 8 a.m. - 5 p.m. | Fargo, Fargodome, 1800 University Drive N. |
| Northern Ag Expo | ||
| Dec. 5, 2007 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Dickinson, Days Inn/Grand Dakota Lodge, 532 15th St. W. |
| Jan. 9, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Jamestown, Jamestown Civic Arena, 212 3rd Ave. S.W. |
| Jamestown Ag Show | ||
| Jan. 24, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Williston, Research Extension Center, 14120 Highway 2 |
| Feb. 6, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Mandan, Seven Seas Hotel, 2611 Old Red Trail |
| Feb. 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Minot, Holiday Inn, 2200 Burdick Expressway E. |
| Feb. 20, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Langdon, Research Extension Center, 9280 107th Ave. N.E. |
| Feb. 20, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Linton, Emmons County Extension, 100 4th St. N.W. |
| Feb. 20, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Mohall, Renville County Courthouse, 205 Main St. E. |
| Feb. 28- March 1, 2008 | TBA; must attend both days | Morton, Minn. |
| NDAAA Convention, | ||
| Aerial App Only | ||
| March 5, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Devils Lake, Knights of Columbus, 522 4th St. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Crosby, Divide County Extension, 300 2nd Ave. N. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | LaMoure, LaMoure County Courthouse, 202 4th Ave. N.W. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Fessenden, Wells County Extension, 600 Railway St. N. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Wahpeton, Richland County Courthouse, 418 2nd Ave. N. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Watford City, McKenzie County Courthouse, 201 5th St. N.W. |
| March 25, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Fargo, Ramada Plaza Suites, 1636 42nd St. S.W. |
Fumigation Recertification
| Date | Time | Location |
| Dec. 13, 2007 | Registration 9:30 a.m.; Training 10 a.m. - 2:30 p.m. | Bismarck, Burleigh County Extension, |
| 3715 Bismarck Expressway E. | ||
| Dec. 13, 2007 | Registration 9:30 a.m.; Training 10 a.m. - 2:30 p.m. | Grand Forks, Grand Forks County Extension, |
| 151 4th St. S., S302 | ||
| Dec. 13, 2007 | Registration 9:30 a.m.; Training 10 a.m. - 2:30 p.m. | Mohall, Renville County Extension, |
| 205 Main St. E. | ||
| Jan. 16, 2008 | Registration 9:30 a.m.; Training 10 a.m. - 2:30 p.m. | Fessenden, Wells County Extension, |
| 600 Railway St. N. | ||
| Jan. 16, 2008 | Registration 9:30 a.m.; Training 10 a.m. - 2:30 p.m. | Wahpeton, Richland County Courthouse, |
| 418 2nd Ave. N. | ||
| Jan. 16, 2008 | Registration 9:30 a.m.; Training 10 a.m. - 2:30 p.m. | Williston, Williams County Courthouse, |
| 205 Broadway E. | ||
| March 3, 2008 | Registration 9:30 a.m.; Training 10 a.m. - 2:30 p.m. | Fargo, |
| NDSU Memorial Union Ballroom |
Greenhouse, and Ornamental and Turf Recertification
| Date | Time | Location |
| Oct. 31, 2007 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Bismarck, Burleigh County Extension, |
| 3715 Bismarck Expressway E. | ||
| Oct. 31, 2007 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Grand Forks, Grand Forks County Extension, |
| 151 4th St. S., S302 | ||
| Oct. 31, 2007 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Minot, Research Extension Center, |
| 5400 Highway 83 S. | ||
| Dec. 18, 2007 | Registration 9 a.m.; Training 9:30 a.m. - 5 p.m. | Devils Lake, Ramsey County Courthouse, |
| 524 4th Ave. N.E. | ||
| Dec. 18, 2007 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Dickinson, Dickinson State University, |
| 220 Kleinfelter Hall | ||
| Dec. 18, 2007 | Registration 9 a.m.; Training 9:30 a.m. - 5 p.m. | Williston, Williams County Courthouse, |
| 205 Broadway E. | ||
| Jan. 30, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Fargo, Ramada Plaza Suites, |
| 1636 42nd St. S.W. | ||
| Feb. 26, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Fargo, Holiday Inn, 3803 13th Ave. S. |
| NCTGA Convention |
Home, Industrial and Institutional Recertification
Date
Time
Location
Nov. 1, 2007
Registration 9 a.m.; Training 9:30 a.m.
- 4 p.m.
Fargo, NDSU Loftsgard Hall 260
Public Health Recertification
| Date | Time | Location |
| April 22, 2008 | Registration 7:30 a.m.; Training 8 a.m. - 5 p.m. | Bismarck, Radisson Hotel, 605 Broadway Ave. E. |
| Mosquito Control Assn | ||
| May 14, 2008 | Registration 9 a.m.; Training 9:30 a.m. - 4 p.m. | Fargo, Cass County Courthouse Annex, |
| 1010 2nd Ave. S., lower level | ||
| May 14, 2008 | Registration 9 a.m.; Training 9:30 a.m. - 4 p.m. | Grand Forks County Extension, |
| 151 4th St. S., Suite 302 |
Right-of-Way ONLY Recertification
| May 20, 2008 | NDWCA Annual Sprayer School | To be announced in a future issue of |
| the Pesticide Quarterly newsletter. | ||
| May 22, 2008 | NDWCA Annual Sprayer School | To be announced in a future issue of |
| the Pesticide Quarterly newsletter. |
Astute readers of the Pesticide Quarterly will note that in years past, we have listed trainings as either initial or for recertification. Further, they often were category specific. This year, we are revamping our outreach for people who are new to pesticide certification. These folks ordinarily would attend an initial training, but now we're calling it: "Introductory Basic Core Training"
The training is designed for commercial or public applicators and dealers who are new to pesticide certification
in North Dakota. It will cover basic pesticide safety and handling practices, as well as relevant laws and regulations
as they pertain to the distribution and use of pesticides. This training is not category specific. It will
emphasize practices and procedures that should be useful to all applicators or dealers, whether they are seeking certification
in the Agricultural Pest Control category, Wood Preservation category or any of the 10 other use categories found
in North Dakota. The training also will describe the certification process and how to prepare and take exams
to obtain a pesticide certificate.
People who wish to participate should fill out the training preregistration form found in this newsletter. If you are unsure of your category needs, simply leave that portion of the form blank and pay only the base $55 fee. If you have questions, call (701) 231-7180 or (701) 231-6388.
| Date | Time | Location |
| Dec. 11, 2007 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Mandan, Seven Seas Hotel, 2611 Old Red Trail |
| March 4, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Fargo, NDSU Memorial Union Ballroom |
| June 4, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Minot, Holiday Inn, 2200 Burdick Expressway E. |
Editor's note: The following news release from the Texas Department of Agriculture recounts an incident that occurred in 2006. The fines finally were paid in 2007. This is precisely the sort of thing we want to avoid in North Dakota. Unfortunately, in 2006 alone, the North Dakota Department of Agriculture recorded 10 illegal fumigant sales, any one of which could end up just as badly.
The Texas Department of Agriculture announced recently that Brad
Raphel and Walter Cronin were found in violation of the state's
pesticides laws and fines have been levied against Raphel and Cronin
following an incident in July 2006 at a Brazos County equestrian facility where
27 horses died.
"The Texas Department of Agriculture considers any violation of the state's pesticide laws a serious matter," Commissioner Staples said. "We will continue to actively investigate any complaint and take necessary enforcement actions whenever sufficient evidence exists to determine if a violation occurred and who is responsible."
TDA provided a copy of the investigation report to Brazos County law enforcement officials in October 2006 and will continue to make case materials available to local authorities.
Raphel was charged with five violations of the state law.
These were:
Each violation carried a fine of $1,000; however, the Texas Agriculture Code limits the total fine to $4,000 for all violations related to a single incident.
In addition, Raphel received a warning for failing to notify employees before fumigating the horse feed.
Cronin received a $1,000 fine for failing to properly supervise the use of a restricted-use pesticide. He also received a warning for failing to maintain records for the first time the pesticide product was applied.
TDA issued a warning to Producers Co-op in Bryan for failing to record the correct product name of a pesticide sold, for failing to record Raphel as an unlicensed applicator receiving the product and for distributing a pesticide without a product application manual.
The NDSU Extension Service Pesticide Program
is offering certified crop advisers the
opportunity to obtain their continuing education units
(CEUs) at selected commercial agricultural
pest recertification training sessions. Six credit hours are available at each training listed
below (1.5 in Soil and Water Management and
4.5 in Pest Management.)
Please note that you must attend 100 percent of the training to receive your CEU credits. No exceptions allowed!
Fees for attending a session are as follows:
• $ 5 per credit for crop advisers who also are attending for commercial pesticide recertification
• $10 per credit for crop advisers who are attending for CEUs only
Please preregister 10 days before a training to ensure adequate space at each location. Call the NDSU Extension Pesticide Program with any questions at (701) 231-7180 or (701) 231-6388.
| Date | Time | Location |
| Nov. 28, 2007 | Registration 7:30 a.m.; Training 8 a.m. - 5 p.m. | Fargo, Fargodome, 1800 University Drive N. |
| Northern Ag Expo | ||
| Dec. 5, 2007 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Dickinson, Days Inn/Grand Dakota Lodge, 532 15th St. W. |
| Jan. 9, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Jamestown, Jamestown Civic Arena, 212 3rd Ave. S.W. |
| Jamestown Ag Show | ||
| Jan. 24, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Williston, Research Extension Center, 14120 Highway 2 |
| Feb. 6, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Mandan, Seven Seas Hotel, 2611 Old Red Trail |
| Feb. 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Minot, Holiday Inn, 2200 Burdick Expressway E. |
| Feb. 20, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Langdon, Research Extension Center, 9280 107th Ave. N.E. |
| Feb. 20, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Linton, Emmons County Extension, 100 4th St. N.W. |
| Feb. 20, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Mohall, Renville County Courthouse, 205 Main St. E. |
| March 5, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Devils Lake, Knights of Columbus, 522 4th St. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Crosby, Divide County Extension, 300 2nd Ave. N |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | LaMoure, LaMoure County Courthouse, 202 4th Ave. N.W. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Fessenden, Wells County Extension, 600 Railway St. N. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. - 4 p.m. | Wahpeton, Richland County Courthouse, 418 2nd Ave. N. |
| March 12, 2008 | Registration 8 a.m.; Training 8:30 a.m. 4 p.m. | Watford City, McKenzie County Courthouse, 201 5th St. N.W. |
| March 25, 2008 | Registration 8 a.m.; Training 8:30 a.m. 4 p.m. | Fargo, Ramada Plaza Suites, 1636 42nd St. S.W. |
Include fee
(Please print)
Name ________________________________________________________
Phone ( )___________________________________________
Address ______________________________________________________
City __________________________________________________________
State________ ZIP _____________________
I will attend the following workshop:
Date ______/______/______City _______________________________
Fee ____________
Attending for CEUs only?
6 credits x 10Total $________
Attending for pesticide certification also?
6 credits x 5Total $________
Make checks payable to: NDSU Extension Pesticide Program
(If paying by personal check, the state of North Dakota
requires your birth date on the check)
Send payment to: NDSU Extension Pesticide Program
P.O. Box 5051
Fargo, ND 58105-5051
pesticide certification or
general pesticide use issues?
Editor's note: The following article is a reprint of a paper delivered
by Marc G. Kurzman at the EPA's
North American Pesticide Applicator Certification and Safety
Education Workshop in Portland, Maine, in August 2007. It has some
excellent advice, especially for employers of pesticide applicators, regarding
the need to adopt "best practices"
to avoid lawsuits.
Wrongful death law is an area of law that seeks to provide financial compensation to the heirs of a person whose death was caused by the negligent, willful or wrongful act, neglect, omission or default of another. Each state has drafted its own set of civil "wrongful death statutes," and some form of wrongful death claim action exists in all state jurisdictions today. While they all follow similar principles, each state jurisdiction is unique, so laws will vary from state to state. There are no federal statutes for wrongful death.
Successful wrongful death (and fear of/developing chronic diseases) verdicts can be obtained when there are occupational (and nonoccupational) exposures to hazardous conditions or substances.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) governs pesticide manufacturing, sale, use and labeling in the United States. FIFRA is regulated by the Environmental Protection Agency (EPA). In order to register a pesticide, the applicant must submit data to the EPA to establish that the pesticide will not cause unreasonable adverse effects on the environment. The unreasonable adverse effects standard, which appears throughout FIFRA, includes "man or the environment." This definition incorporates a risk-benefit standard since it recognizes that pesticides are toxic and, therefore, present a risk to man and the environment, but are also designed to render a benefit - control of a pest. EPA registration of a pesticide pursuant to FIFRA does not mean that the pesticide is "safe," even for its intended use. It merely means that, in EPA's opinion, the benefits of the pesticide outweigh its costs.
Tort pre-emption allows defendants some immunity to civil liability because they have done what is required by statute. The leading case supporting tort pre-emption is Cipolloance v. Liggett Group Inc., 505 U.S. (1992). Cipolloance held that the pre-emptive clause in the Public Health Cigarette Smoking Act pre-empted civil liability. The leading case against tort pre-emption is Medtronic Inc. v. Lohr, 518 U.S. (1996). Medtronic held that the pre-emptive clause in the Medical Device Amendments of 1976 did not pre-empt the plaintiff's tort claims. So far, courts have followed Cipolloance more than Medtronic; however, in 2008, the U.S. Supreme Court will be re-examining this issue in Riegel v. Medtronic.
FIFRA contains an express pre-emption clause regarding labeling requirements. Therefore, the majority of cases regarding pesticides, which have been FIFRA and EPA approved, hold that this approval pre-empts any state common law cause of action arising out of any alleged product liability; however, there is enough precedent to bolster a court's decision either for or against pre-emption.
As the EPA noted in an amicus brief filed in Etcheverry v. Tri-Ag Services Inc., 22 Cal. 4th 316 (Ca. 2000), "Given that FIFRA establishes no private damages remedy for those injured by pesticides, it would be astonishing that, without any discussion, Congress could have intended to deprive injured persons of all means of relief."
In Bates v. Dow Agrosciences LLC, 81 U.S (2005), the U.S. Supreme Court held that FIFRA did not pre-empt the farmer's claims alleging defective design, defective manufacture, negligent testing and breach of express warranty. In Wuebker v. Wilbur-Ellis Co. (8th Cir. 2005), relying on Bates, the court held that EPA regulation did not impliedly pre-empt common law claims.
Plaintiffs can recover "compensatory damages," such as the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Damages also typically include interest from the date of the decedent's death. Punitive damages may also be awarded in cases of serious or malicious wrong-doing to punish the wrong-doer and/or deter others from behaving similarly.
The law is constantly changing in terms of how it is applied.
However, as more health professionals are becoming aware of the potential
link between exposure to toxic substances and disease and,
accordingly, more plaintiffs'
lawyers are looking for more
"experts" to bolster lawsuits,
it is likely that lawyers seeking money will push against case
law and utilize publicity to generate pressure upon manufactures
and applicators to settle cases rather
than expending millions of dollars defending and hundreds of
millions of dollars paying verdicts which may, or may not, be reversed
on appeal.
The best practice to avoid civil liability is to use "best (applicator) practices" when dealing with potentially hazardous substances - without regard to whether or not a particular risk is recognized at a particular point in time by a majority of scientific evidence. While no one can be expected to "know" all of the literature and research within a field, it is a safe bet that the plaintiff's lawyer will find it - and an expert to tell the fact finder that a particular defendant knew, or could have known, about the risk. Documenting the steps being taken gathering information and establishing safety routines is essential to later establishing why a particular defendant, be it an individual or a multinational corporation, should not be held liable
Marc G. Kurzman is a litigator with 35+ years of experience trying cases in state and federal courts. A graduate of New York University Law School, he wins more than 85 percent of his trials, with an even higher success rate negotiating satisfactory outcomes. He is admitted to practice in the states of Minnesota, Wisconsin, Florida and New York. He is admitted to practice in a number of U.S. District Courts, U.S. Court of Appeals and the U.S. Supreme Court. His clients have included lawyers, physicians, teachers, legislators, business owners and other professionals. He has been an assistant professor at the University of Minnesota, a lecturer at continuing education programs in Minnesota and numerous other states, a patent attorney and a pharmacist. He served as lead counsel for formaldehyde litigation for the Association of Trial Lawyers of America (representing thousands of plaintiffs nationwide). He is a consultant to managed-care providers and under contract to study civil litigation issues regarding pesticide applications and civil liability as they relate to both health-care professionals and applicators.
Commercial Pesticide Recertification Pre-registration Form Training Pre-registration PDF Version
Commercial Pesticide Study Material Request Form Non-training Study Materials PDF Version
Contact:
NDSU Pesticide Training and
Certification Program
Box 5051, Fargo, ND 58105-5051
Tel: (701) 231-7180
Fax: (701) 231-5907
E-mail: pesticid@ndsuext.nodak.edu
Internet: www.ndsupesticide.org