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Daily News Blog

18
Mar

Pesticide Drift or Chemical Trespass Continue Uncontrolled, Despite Successful Litigation

(Beyond Pesticides, March 18, 2022) A 2020 lawsuit related to pesticide drift was resolved on March 8, 2022 in San Joaquin (California) Superior Court with the finding that Alpine Helicopter Services, which specializes in pesticide applications for government and tourism entities, had violated pesticide drift laws and endangered public health and safety. The court further found Alpine liable for damage related to its actions, though penalties in the case, brought by California state prosecutors and the California Department of Pesticide Regulation (DPR), have yet to be determined. The case exposes a handful of the many instances of pesticide drift, also known as “chemical trespass,” that occur every year in the U.S. In 2004, Beyond Pesticides covered the issue with Getting the Drift on Chemical Trespass; its monitoring of drift issues is ongoing, as can be seen in its “Pesticide Drift” archives. The long history of nontarget exposure, contamination, and poisoning teaches that drift is a function of pesticide use, but not considered adequately by regulators who allow the marketing of poisons that are known to move through the environment uncontrolled. Cases like the Alpine case highlight a relentless problem associated with the daily use of pesticides.

Pesticide drift is any airborne movement of pesticides from the target application site to any unintended area; pesticides can drift, according to multiple studies, for as much as several miles. Drifting pesticides might be apparent as a cloud of droplets or vapor, as “dust” particles during application, or as a noxious odor that lingers after application. However, drift can also have no odor, be invisible, and persist for days. Drift can happen whether the application is via aerial or ground spraying, as well as from applications that volatize and move through air currents, exposing people, animals, crops, trees, and non-crop plants to the toxic chemical compounds — most typically, insecticides, herbicides, and/or fungicides. In addition, soil and water resources can become contaminated, as well as the very air that people and animals are breathing.

Pesticide drift can cause acute poisoning and/or chronic health impacts in farmworkers or anyone in the application area or working in nearby fields being treated. Included among those at high risk from drift are families of farmworkers who live near agricultural parcels. Yet, as in this subject litigation, it also happens in other settings. Schools, playground, recreational fields, and other facilities at which children are frequent visitors, have been affected by pesticide drift, which is all the more concerning because children have elevated vulnerability to chemicals, given their sizes and developmental stages.

This litigation charged Alpine with pesticides applications in four “spray drift,” or “chemical trespass” incidents. Three of those were in San Joaquin County; one was at a school (in 2017), another at a sports complex (2019), a third saw herbicides applied to nearly 5,000 acres of land, resulting in massive crop losses (2014), and a fourth occurred on a residential yard (2020). That sports complex was the San Joaquin County Regional Sports Complex in Stockton, a facility that serves environmental justice communities that already experience disproportionate exposure to, and impacts of, environmental pollution.

California officials registered their takes on the suit and the decision: DPR acting chief deputy director, Karen Morrison, commented, “The blatantly careless actions of Alpine threaten the health and safety of children and communities.” California Attorney General Rob Bonta commented, “Today’s decision is an important win for the many in our state who live and work in agricultural communities. Alpine’s careless approach to pesticide application is unacceptable.” According to Agri-Pulse, he also said that the decision ought to send a powerful message to agricultural enterprises that the state “will hold them accountable if they violate the law when using ‘toxic chemicals.’”

In 2018, the California DPR published its Pesticide Drift: Pocket Guide as a primer on pesticide drift, geared to the general public and those who may have experienced or witnessed this kind of chemical trespass. It notes that in California, not all drift is illegal, but that “Pesticide laws focus on spray drift that causes harm, or has the potential to do so. The law specifically recognizes that pesticides may drift but says that ‘substantial’ drift is not allowed. The law prohibits applications if there is a reasonable possibility of harm to people or property.” Pesticide Action Network North America (PANNA) created something similar in 2017: In Case of Drift: A Toolkit for Responding to Pesticide Drift. It had issued the 2004 report titled Chemical Trespass: Pesticides in our Bodies and Corporate Accountability.

A sense of the scale of pesticide applications — not all of which result in drift — can be gleaned from the Environmental Working Group’s (EWG’s) coverage of just one California county’s experience. Of course, Ventura County hosts a lot of agricultural activity, so is not representative of all U.S. counties. But EWG research found that, from 2015 through 2020, roughly 963 acres were sprayed with more than 9.1 million pounds of pesticides — an average of more than 1.5 million pounds annually. This chemical intensity happened in just one county.

Some pesticides are far more prone than others to drift: the herbicide dicamba has been the poster child for this scourge. It is extremely prone to drift in warm temperatures, and even more so, when it is mixed with glyphosate, another notorious herbicide. Dicamba, alone or paired with glyphosate, has been responsible for massive levels of damage to non–genetically modified crops (and other plants) that have no protection against the compound. As damage from dicamba has mounted, farmers have litigated left and right, legislators in the states have taken up measures to try to control the application (and therefore, the damage), and manufacturers are scrambling to keep the compound “palatable” to farmers. See more on dicamba here and here.

In a Beyond Pesticides’ 2021 National Pesticide Forum session titled “Fighting Chemical Trespass,” several victims of the phenomenon spoke about their experiences of damage to their farms, crops, livelihoods, and bodies. All of the participants suffered unwanted aerial spraying of their properties, and subsequent, lingering drift of the chemicals. (In one instance, inspectors found that pesticide residue levels were even higher seven days after the incident than at two days out, likely due to pesticide compounds that had landed on surfaces and then volatilized into the air.)

Two participants are organic farmers who could not sell their then-contaminated crops as organic, and one of them could not sell them at all because the compounds that were sprayed are illegal for use on food crops. That same farmer, who was formerly in robust health, has had massive chronic health consequences, is now legally disabled, and has acquired $100,000 in medical debt as a result of the chemical poisoning she endured across multiple incidents.

One of the farmers summarized that, as an organic producer, he has huge concerns about such chemical trespass — for the safety of the food he produces, for farmworker safety and health, for the health and integrity of pollinators and other organisms, and the surrounding environment, and of course, economic issues of lost production and income. Towering over the immediate financial concerns is that, once contaminated, a USDA (U.S. Department of Agriculture) Certified Organic farm (or at least the affected parts) must exit the certification program for three years — a huge blow to a modest organic operation.

That same farmer contends that reform of drift policy at the state level — currently a kaleidoscope of varying, or no, regulations — is critical. He also suggests that organic farmers, in particular, secure personal liability insurance for any health/medical debt they might incur as the result of a drift or spray incident. Another farmer notes that there is a huge need for medical toxicology experts who can assist victims in the often-years-long process of discovery and documentation of evidence of the harms of the trespass incidents.

Most instances of chemical trespass are never litigated. When they have been, outcomes have been mixed, as evidenced here, here, here, and here. One of the real slogs for victims of drift is that the onus for proving what happened is entirely on them: getting inspectors out immediately, and subsequently, to validate and attach metrics to the damage, quantifying ongoing economic, health, and environmental damage, and more. Most people find these prospects entirely too daunting and expensive, and applicators and manufacturers are, thus, rarely held accountable.

The U.S. Environmental Protection Agency (EPA) addresses the drift issue on its website, and assures the public that it “evaluate[s] potential for drift as a routine part of [its] pesticide risk assessments and [is] using new approaches for estimating drift impacts on communities living near fields where crops are grown, farmworkers, water sources, and the environment.” Beyond Pesticides Executive Director Jay Feldman notes, “It is rare, however, that EPA factors drift into its calculation of harm associated with pesticide use, and it is just as rare for those whose pesticide applications drift to be held accountable for the harm (short- and long-term) it causes.”

That same EPA web page also says the quiet part out loud: “As we assess new pesticides and re-evaluate older pesticides, we evaluate the potential for each pesticide to drift and strengthen labeling as needed.” Advocates say “strengthening labeling as needed” is a feeble solution to the problem. Indeed, the many lawsuits that attempt to hold applicators responsible for health, crop, and environmental harms caused by pesticide drift — and the far, far greater number of incidents that never get reported or litigated — do not tend to happen because the labeling on the pesticide containers is not quite “strong” enough. They more often happen because, as in this subject lawsuit, human negligence, indifference, or error — and the profit motive — are at work.

The nonprofit Community Environmental Legal Defense Fund (CELDF) describes the systemic situation well: “The Environmental Protection Agency, or EPA, is an appointed government agency that is charged with ‘protecting’ people and the environment. But instead, it operates more as an agency that regulates how much harm can occur before government action is required. The requirements of EPA testing, especially its lack of preventative measures, are alarming. In order to require testing of a new chemical, the EPA must first show the potential risk. No evidence of harm is interpreted as no harm, from their perspective. The problem with this way of thinking is that many of the harmful effects of chemical trespass are worsened through prolonged exposure and are often not immediately seen in testing. It’s a system designed to let corporations put toxins in our environment with no repercussions to them — but serious repercussions for people, communities, and nature.”

One genuine fix for the problem would be to deregister pesticides, such as dicamba, that are prone to drift. (Such action would be far more possible did industry not exert undue influence over EPA.) Another welcome development, surely, would be more and improved legal, medical, forensic, and technical supports for those who are exposed to chemical trespass (whether through drift or application to non-targets), at the federal and state levels. Beyond Pesticides, recognizing how vulnerable organic farms can be to impacts of these chemical trespass incidents, might recommend that USDA’s National Organic Program consider the issue of supports for organic farms in this unhappy “trespassed” circumstance. Ultimately, EPA must acknowledge the commonplace fact of drift and calculate the resulting exposure pattern and harm to people and property. If drift effects are fully calculated for their adverse impact, the “reasonableness” standard of allowable harm under EPA assessments is quickly exceeded. In this context, toxic pesticide use is unacceptable, especially given the availability and economic viability of organic practices.

Source: https://www.sfgate.com/news/bayarea/article/Helicopter-Company-Found-Liable-For-Illegal-16987408.php

 

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

 

 

 

 

 

 

 

 

 

 

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One Response to “Pesticide Drift or Chemical Trespass Continue Uncontrolled, Despite Successful Litigation”

  1. 1
    Ed Ore Says:

    Fresno County being the top Ag producer it is makes it hard for residents to get any protection from the Ag Commissioners office.
    The Ag Commissioner seems to in my personal experience side with the farmer/applicator and only makes cameo appearances if a resident calls because of chemical drift incidents!

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