Ask a Specialist Answer

Question

What do I do in the case of chemical spray drift onto my property?

Answer

If you can smell the pesticide, it has drifted to your farm. If you are not feeling well, immediately see your family doctor or go to the emergency room. Pesticide exposure should not be taken lightly.

The second thing you should do is contact your state’s pesticide enforcement agency—it’s usually within your state’s department of agriculture. Call the agency as soon as possible, ideally within 48 hours of the incident. The agency will send out an investigator to verify the drift incident, usually by the next day unless it is a weekend. Because it is difficult to find pesticide residue on soil or crops after a few days, you can help the investigator verify drift if you can locate a hard surface (such as a vehicle) where droplets of drift are collecting. Then protect that surface from rain until the investigator arrives.

All licensed applicators are supposed to keep written records of what and when they spray. When you contact your state’s pesticide enforcement agency, staff will contact your neighbor to find out what was sprayed, and they can then let you know what it was. They will also review if the pesticide was applied correctly, such as when wind speed was not excessive. To my knowledge, all states have some rules governing drift, and most states consider it a violation of the law if pesticides cross a property line without the permission of that landowner.

If the agency finds that the product drifted, and/or that the applicator sprayed when conditions weren’t right, and/or he did not document his activities, and/or he were supposed to be licensed to apply the product and he wasn’t, there is a pretty good chance the applicator will be fined. The amount of fines varies widely. These fines go to the state. If you want monetary compensation, you will need to discuss this with the farm operator, their insurance agency or, depending on the circumstances, other responsible parties including the custom applicator or landowner. If these negotiations are not acceptable, you may need to take legal action.

If you became sick or your crops were damaged, and you hope to get monetary compensation for crop loss or medical bills, it is very important to have an objective third party verify the drift incident. Doctors don’t usually attribute illnesses to pesticide exposure. However, if you have proof that you had a negative health incident right after exposure, it is easier to claim you have a problem than if you did not go to the doctor at the time of your exposure.

Certification agencies vary in how they deal with pesticide drift. Some may only decertify that year’s crop within the drifted area, requiring a 25-30 foot buffer zone from the end of the drift to the crop you can continue to sell as organic. The drift investigator may help you establish where the edge of the drift incident is in your field. If the drift was highly concentrated, the organic certifier may decertify that land for two or three years.

Many producers do not want the incident to create hard feelings with their neighbors. To avoid drift incidents, talk to your neighbors early in the season to explain the organic status of your land and the economic loss you will incur if prohibited substances drift over the property line. Most farmers will respect another farmer’s farming system. Drift is especially problematic on vegetable and fruit crops, which often grow on just a few acres. Even if you only farm 5 acres, you are still a farmer and have a right to farm as you wish.

Many landowners have leased out their land to a farmer and that farmer may hire someone else to spray. Figuring out who is responsible for that activity early in the season can save you valuable time if and when you wish to discuss a drift incident with the person who did the application. The landowner may not know who is doing the spraying, nor what is being sprayed. The farmer renting the land might not even know exactly what the applicator is using until presented with the bill.

When drift occurs, it is important to report the incident to the state so their statistics on pesticide drift incidents and possible negative human health effects reflect what is happening in the real world. When incidents are not reported, it appears that there are no problems, and unfortunately, we all know that is not true.

Your organic documentation is invaluable if you are requesting monetary compensation for your loss of organic premium or if you could not sell your crop for a variety of reasons. Most insurance companies do not seem to know that there is a rigorous third-party review within the organic certification process. The fact that your yield and sales records are verified yearly by an objective third party, who is approved by the USDA to perform this work, adds credibility to the dollar amount you may be requesting. Since some organic crops have very large differences between the organic and non-organic price, you will probably get some pushback from the responsible party or the insurance agency when you first present your request for compensation.

For example, some specialty organic potatoes could be sold for $2 per pound, and conventional potatoes at times sell for 10 cents per pound. Be prepared to have many conversations and letters with the responsible party or insurance company. You will probably need to compromise on your requested compensation, but do not give up! Other organic farmers before you have received compensation. You can get a reasonable settlement if you stick to the facts and remain steadfast even when they do not seem to accept the credibility of your request.

The Pesticide Action Network of North America, PANNA, has an excellent website with links to each state’s pesticide enforcement bureau and the state’s pesticide-use rules. PANNA’s Midwest office is located in Minneapolis. The phone number is 510-788-9020.

Posted: Oct 2014
Answer By: Harriet Behar