Experiencing pesticide drift, part II: Calling in the government

In this series:
Part I – Experiencing pesticide drift
Part II – Calling in the government
Part III – Aftermath, conclusions, & ramifications.

INITIAL CONTACT

After a week of waiting to hear from the farmer responsible for the spraying operation (calls/messages went unanswered), we gave up and pursued other avenues. Our local extension office referred us to the Bureau of Pesticide Control (hereafter referred to as “the Bureau”), part of the Missouri Department of Agriculture. The nice lady on the phone advised us on how to file a formal complaint, which was needed to initiate an investigation into any suspected pesticide drift incident. The actual process was easy, but we had a question:

Did the fact that we waited a week affect an investigation? I.e., would any contamination be long gone from the crops, or would it stick around? She chirpily assured us that time was no problem, they routinely pursued investigations up to a year later with positive results, since most pesticide applications are intended to be taken up by the plants and remain in their tissue, such that drift can be detected as long as the plant material is still around. This was rather un-comforting for fresh produce farmers.

INVESTIGATOR VISITS

Another week passed, and an investigator visited us to take statements and crop samples. He was professional and courteous, walking the landscape, collecting our written statements and two crop samples (choosing sweet corn and tomatillos), and asking other questions to ensure he understood the event from our perspective. We were told that the samples would be frozen and sent to a lab in Iowa and could take 60-90 days to get results; the analysis would cost around $1,000 per analyte per sample.

pesticide_drift_sampling

He was willing to answer questions to an extent. He told us that the spray in question was probably a fungicide given the timing and crop (corn) of its application, and he had a “really good idea” exactly what it was (though that was information he did not disclose). He also stated that fungicide use was rising as companies had begun marketing it as a “crop enhancer”, something to be applied routinely rather than as a reaction to a specific problem. Here’s an example of this marketing.

He pointed out several things we could/should have done differently in reacting to this event. For example, we should have saved the clothing worn that day and not washed out the truck after exposure, as these surfaces could in theory have been sampled. Ironically, the fact that Eric had driven on the blacktop road down to the corn fields eliminated any usefulness of his clothing or the truck, as it raised the possibility of contamination from that road rather than drift on our land (never mind that contamination of a public road should still qualify as spray drift in our mind). We also could have called the Bureau right away, but (a) we didn’t know it existed, and (b) our instinct has always been to handle things on a personal level first rather than calling in the government. Also, not washing a truck we use for regular fresh produce harvests & delivery was not a terribly viable option under the circumstances.

It turns out that our decision not to visit a doctor right away invalidated our personal testimony about physical side effects; only an official opinion counts, it seems. This is most unfortunate since a visit to the doctor, as self-employed people with a huge insurance deductible, is a major hit in both time and money that we couldn’t justify at the time given how much else we were juggling. Self-employed people don’t get paid sick days, and a farm doesn’t stop happening if we spend the day in a waiting room.

THE WAITING GAME

After the visit, we simply had to wait. The investigator would attempt to contact the farmer, the spray pilot, and anyone else involved in order to construct as complete a picture of the day’s events as possible. Crop-dusting businesses are supposed to keep complete records of what is applied when, where, and how, and these records would be requested and reviewed. All of this takes time, for an agency that we were told investigates over 100 such incidents each year, particularly when some of the parties involved may well be from out-of-state (as, it turns out, was the pilot in this case).

In essence, however, the investigation would boil down to several factors over which we had little influence:

  • Was pesticide drift detected in our crop samples?
  • Did the investigation reveal any misconduct on the part of the applicator regardless of test results?

In the meantime, of course, we still had no idea what might actually be on our crops and whether there was a legal pre-harvest interval we should be observing before harvesting and selling potentially affected produce. Not knowing this was quite stressful, as we take our health, our customers’ health, and our ethical commitments to growing methods very seriously.

Knowing this, our investigator had suggested that we call the Bureau office a few weeks later and they might be able to verbally tell us what had been used (though not whether drift had occurred) assuming they’d been able to obtain that information. A call on August 8 produced no results; a call on the 18th confirmed that the spray applied that day had indeed been a fungicide, Priaxor (EPA #7969-311). At this point we sent another message to our CSA members so they would have the same information that we did.

Our own research showed that Priaxor was officially labeled for use on virtually all food crops with a pre-harvest interval of 7 days (that is, the minimum legal waiting time between application and harvest), meaning that if drift had indeed occurred, then all of the crops we harvested during the week after the incident should have been discarded, not distributed to members. By the time we had this information, the pre-harvest interval was long past, and there was nothing we could do about it.

This is precisely why we initially attempted to directly contact the farmer involved. There is no way the Bureau could have gotten us that information fast enough to be useful, but the simple courtesy of a returned phone call from the farmer would have been enough to allow an informed decision. At least we knew that harvests going forward were technically legal, but the missed week stung. We also learned that Priaxor has two active ingredients, one of which has a long half life (according to the EPA) and is likely to be persist in the soil for years, an unsettling thought.

After this, though, we would receive no  more information from the Bureau until December. In other words, we had to make our last 15 CSA distributions having no idea whether the food we were feeding people was contaminated with drift that we considered unacceptable, regardless of legal limits for pesticides on fresh food. Having marketed our shares and our restaurant produce as free from all artificial chemical applications, this might no longer be true, but we had no way of knowing for the months it took the investigation to move forward.

THE RESULTS

After Thanksgiving, we finally called again to inquire about the status of our case, and were told it was near the top of the queue. All the facts were in, but the official review panel still needed to discuss the case and make a ruling. The fellow we talked to was able to confirm, verbally, that our sweet corn did indeed test positive for the active agents in Priaxor, the fungicide confirmed to have been applied by the crop-duster that day.

About a week later, we received written confirmation of this in a packet from the Missouri Department of Agriculture, dated December 9, 2014, stating in part that:

…In your complaint, you alleged that a pesticide application drifted onto your organic garden….laboratory analysis of a foliage sample collected from your sweet corn detected Pyraclostrobin and Fluxapyroxad. Laboratory analysis of a foliage sample collected from your tomatillo detected Pyraclostrobin. The active ingredients in PRIAXOR FUNGICIDE are Pyraclostrobin and Fluxapyroxad…..The investigation is complete and based on the evidence collected, there is reason to believe Mr. ——- used a registered pesticide inconsistent with label directions, restrictions and precautions found on the pesticide label….in accordance with the results of the investigation, regulatory action has been initiated toward Mr. ——–.

A separate letter sent to the applicator and copied to us read, in part:

This letter constitutes a WARNING……and notifies you there is reason to believe you used a pesticide inconsistent with label directions, restrictions and precautions…On July 28, 2014, Mr Eric Reuter filed a complaint with this office alleging a pesticide application drifted onto his organic garden…..

So what did all this cost? With two active ingredients to test for, and two samples to test (not to mention personnel cost), the Bureau must have spent thousands of dollars on this case, by far the most the Missouri Department of Agriculture has spent “assisting” Chert Hollow Farm. By contrast, according to data from the Environmental Working Group’s Farm Subsidy Database, the other farmer in question received over $19,000 in commodity subsidies in 2012 (latest data available), along with over $24,000 in disaster subsidies (a result of the 2012 drought, which our diversified farm weathered without government help).

So what regulatory action was taken? The Bureau’s letter stated that the maximum penalty allowed for misuse of pesticides is just $1,000, though no fine of any kind was levied in this case, just the written warning. Moreover, this warning was solely aimed at the crop-duster pilot. In a case like this, as our investigator had previously explained, the actual farmer isn’t even considered, since he just hired the spraying work out to the crop-duster. It didn’t appear to us that the farmer or the landowner even got a copy of the above letters; neither one was listed as an addressee or cc on any of the documents.

It seems that regulatory liability only extends to the entity directly responsible for the misdeed, in this case the pilot who did the spraying. There doesn’t seem to be a regulatory concept of top-down responsibility for the overall agricultural methods that lead to the improper use of aerial applications (such as requesting crop-dusting of a small field bounded on two sides by topography and a significant waterway, with a well-traveled public road and a power line on a third side).

That is the end of it, as far as the Bureau is concerned. The case is closed and nothing further will happen on the regulatory front.

In part III of this series we’ll discuss the implications of all this.

One thought on “Experiencing pesticide drift, part II: Calling in the government

  1. How discouraging this is! Who would ever have thought something like this would happen and that you would have so little recourse?

    Best wishes with your next steps.

    Chris