pesticide drift liability
The dicamba roller coaster ride continues today, with a statement issued by the Ohio Department of Agriculture clarifying that the use of XtendiMax, Engenia, and FeXapan dicamba-based products in Ohio will end as of June 30, 2020. Even though the US EPA has issued an order allowing continued use of the products until July 31, 2020, use in Ohio must end on June 30 because the Ohio registrations for the three dicamba-based products expire on that day.
As we’ve explained in our previous blog posts here and here, the Ninth Circuit Court of Appeals vacated the registration of the dicamba products on June 3, 2020. In doing so, the court stated that the EPA had failed to perform a proper analysis of the risks and resulting costs of the products. According to the court, EPA had substantially understated the amount of acreage damaged by dicamba and the extent of such damage, as well as complaints made to state agriculture departments. The court determined that EPA had also entirely failed to acknowledge other risks, such as the risk of noncompliance with complex label restrictions, economic risks from anti-competition impacts created by the products, and the social costs to farm communities caused by dicamba versus non-dicamba users. Rather than allowing the EPA to reconsider the registrations, the court vacated the product registrations altogether.
The EPA issued a Cancellation Order for the three products on June 8, stating that distribution or sale by the registrants is prohibited as of June 3, 2020. But the agency also decided to examine the issue on the minds of many farmers: what to do with the products. Applying its “existing stocks” policy, the EPA examined six factors to help it determine how to deal with stocks of the product that are in the hands of dealers, commercial applicators, and farmers. The EPA concluded that those factors weighed heavily in favor of allowing the end users to use the products in their possession, but that use must occur no later than July 31, 2020 and that any use inconsistent with the previous label restrictions is prohibited.
Despite the EPA’s Cancellation Order, however, the Ohio Department of Agriculture is the final arbiter of the registration and use of pesticides and herbicides within Ohio. ODA patiently waited for the EPA to act on the Ninth Circuit’s ruling before issuing its guidance for Ohio users of the dicamba products. In its guidance released today, ODA stated that:
- After careful evaluation of the court’s ruling, US EPA’s Final Cancellation Order, and the Ohio Revised Code and Administrative Code, as of July 1, 2020, these products will no longer be registered or available for use in Ohio unless otherwise ordered by the courts.
- While use of already purchased product is permitted in Ohio until June 30, further distribution or sale of the products is illegal, except for ensuring proper disposal or return to the registrant.
- Application of existing stocks inconsistent with the previously approved labeling accompanying the product is prohibited.
But the roller coaster ride doesn’t necessarily end there. Several dangling issues for dicamba-based product use remain:
- We’re still waiting to see whether the plaintiffs who challenged the registrations (the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America) will also challenge the EPA’s Cancellation Order and its decision to allow continued use of the products, and will request immediate discontinuance of such uses.
- Bayer Crop Science, as an intervenor in the Ninth Circuit case, could still appeal the Ninth Circuit’s decision, as could the EPA.
- All of these orders add complexity to the issue of liability for dicamba damage. That issue has already become quite controversial, often pitting farmer against farmer and requiring the applicator or damaged party to prove adherence to or violation of the complicated label restrictions. But the Ninth Circuit’s attention to the risks of adverse impacts from the products raises additional questions about whether an applicator who chooses to use the products is knowingly assuming a higher risk, and whether a liability insurance provider will cover that risk. For this reason, growers may want to have a frank discussion with their liability insurance providers about coverage for dicamba drift.
The dicamba roller coaster ride will surely continue, and we’ll keep you updated on the next development.
Read the ODA’s Official Statement Regarding the Use of Over-the-Top Dicamba Products here.
The Ohio Specialty Crop Registry connects producers of specialty crops, beekeepers, and pesticide applicators to one another through free online registries. Producers of specialty crops and beekeepers may voluntarily report the boundaries of their specialty crops and beehives. The registry then compiles this information in a mapping tool that also provides the contact information of the registrant. In doing so, pesticide applicators are better able to avoid these areas and minimize spray drift.
The Old System: the Ohio Sensitive Crop Registry
The Ohio Department of Agriculture (ODA) first launched a registry for sensitive crops in 2014 so that pesticide applicators could know the locations of sensitive crops before spraying in a given area. The registry came about at a time when widespread demand for organic foods required more farmers to closely monitor what came into contact with their crops. The original tool allowed commercial producers of at least a half-acre of a single type of sensitive crop to register. Sensitive crops included just about any non-row crop such as fruits, vegetables, and herbs. Apiaries, outdoor aquaculture, brambles, certified organic farms, nurseries, greenhouses, and orchards also could be registered.
The New System: the Ohio Specialty Crop Registry
Now, ODA partners with FieldWatch, Inc. to operate the Ohio Specialty Crop Registry. FieldWatch, Inc. is a non-profit organization that operates three registries: DriftWatch for producers of specialty crops, BeeCheck for beekeepers, and CropCheck for producers of row crops. FieldWatch creates maps based on the information from these registries, and makes those maps available to pesticide applicators in another program called FieldCheck. In summary, the three registries are for the producers and beekeepers, and FieldCheck is for the pesticide applicators.
Ohio currently only uses the DriftWatch and BeeCheck registries. According to ODA, the list of sensitive crops under the old program is virtually the same under the new system, meaning that producers of any non-row crop may utilize DriftWatch. While beekeepers may report the location of their beehives in DriftWatch, ODA recommends that beekeepers with no specialty crops use BeeCheck.
FieldWatch, Inc. continues to update its tools to add features and indicators, and CropCheck represents one such development. New for 2019, this registry allows producers of row crops like corn, soybeans, and wheat to register their crops. Its development comes on the heels of the introduction of dicamba-tolerant seeds. Only Arkansas, North Carolina, Illinois, and Indiana have adopted CropCheck for 2019. Ohio has not yet adopted it.
Connecting the Dots between the Registry and Liability
At this point you may be asking yourself, why is this in the ag law blog? That’s a fair question, and the answer is simple: risk management. As more farmers adopt organic practices, as pesticides and seeds change, and as weather patterns evolve, the risk increases that pesticide drift may come into contact with and negatively impact specialty crops and beehives.
The law expects people to act reasonably and to exercise due care at all times, and this default duty applies to pesticide applicators. Common claims for drift include negligence, nuisance, and trespass. Each of these claims examine whether the parties acted reasonably and with due care. Most often, when a court decides that a pesticide applicator acted unreasonably, it is because he or she failed to apply the pesticide in a manner consistent with the label. Following the label is certainly an expectation, but it is not the only thing a court will consider.
When a pesticide applicator does not use FieldCheck, a perceptive attorney representing beekeepers and producers of specialty crops would likely argue that the use of FieldCheck is an industry standard. If an attorney could establish this, then the failure to use FieldCheck would mean that a pesticide applicator failed to act in a reasonable manner and exercise due care. While we have not seen an Ohio court consider this issue yet, as use of the program continues to grow, this argument will come to hold more weight when a case does arise.
When a pesticide applicator does use FieldCheck, he or she has a stronger argument that he or she acted in a reasonable manner. FieldCheck provides pesticide applicators with a way to know exactly where registered sensitive crops and beehives are located, and allows the applicator to buffer accordingly. FieldCheck provides a quick, cheap, and easy way to manage legal risk, alongside following the label. Applicators who use the program may want to document when they used the program and also how the maps impacted their application plan.
These scenarios presume that the beekeeper or producer of specialty crops has registered the locations of their bees or crop with a FieldWatch registry. When sued by a beekeeper or producer of specialty crops who did not register their locations, a pesticide applicator could use similar arguments as noted above in order to defend against the lawsuit. However, the applicator’s focus would likely regard the lack of notice. Again, these arguments alone would not likely determine the outcome of the case, but they would help the court determine whether the parties acted reasonably.
What about hemp?
Another question that some of our readers will also be asking is: which registry is for hemp? We made a call and left a message with FieldWatch. If or when hemp production becomes legal in Ohio, we’ll be sure to provide an update on which registry is proper for hemp. Ohio’s hemp bill is on the move, and the Ohio Senate Agriculture & Natural Resources Committee completed its third hearing of the bill this week. However, we can’t forget that growing hemp is not legal in Ohio unless and until the bill is passed into law and the regulatory system is created.
Last week, the Environmental Protection Agency (EPA) announced an agreement with Monsanto, BASF and DuPont to change dicamba registration and labeling beginning with the 2018 growing season. EPA reports that the agreement was a voluntary measure taken by the manufacturers to minimize the potential of dicamba drift from “over the top” applications on genetically engineered soybeans and cotton, a recurring problem that has led to a host of regulatory and litigation issues across the Midwest and South. The upcoming changes might alleviate dicamba drift issues, but they also raise new concerns for farmers who will have more responsibility for dicamba applications.
The following registration and labeling changes for dicamba use on GE soybeans and cotton will occur in 2018 as a result of the agreement:
- Dicamba products will be classified as “restricted use” products for over the top applications. Only those who are certified through the state pesticide certification program or operating under the supervision of a certified applicator may apply the product. Training for pesticide certification will now include information specific to dicamba use and application, and applicators will be required to maintain records on the use of dicamba products.
- The maximum wind speed for applications will reduce from 15 mph to 10 mph.
- There will also be greater restrictions on the times during the day when applications can occur, but details are not yet available on those restrictions.
- Tank clean-out instructions for the prevention of cross contamination will be on the label.
- The label will also include language that will heighten the awareness of application risk to sensitive crops.
Farmers should note that the additional restrictions and information on dicamba labels shifts more responsibility for the product onto the applicator. An applicator must take special care to follow the additional label instructions, as going “off label” subjects an applicator to higher risk. If drift occurs because of the failure to follow the label, the applicator is likely to be liable to the injured party for resulting harm and may also face civil penalties. Producers should take care to assess the new dicamba labels closely when the manufacturers issue the revised labels for 2018.
To learn more about legal issues with pesticide use, be sure to sit in on the Agricultural & Food Law Consortium’s upcoming webinar, “From Farm Fields to the Courthouse: Legal Issues Surrounding Pesticide Use.” The webinar will take place on Wednesday, November 1 at Noon EST and will feature an examination of regulatory issues and litigation surrounding pesticide use around the country by attorneys Rusty Rumley and Tiffany Dowell Lashmet. To view the free webinar, visit http://nationalaglawcenter.org/consortium/webinars/pesticide/
The Ohio Department of Agriculture (ODA) has announced that pesticide applicators, commercial sensitive crop producers and apiaries may now use the online Ohio Sensitive Crop Registry (OSCR). ODA developed OSCR as a “voluntary informational tool designed to allow stakeholders an effective way to communicate and protect pesticide-sensitive crops and apiaries.” The registry will enable applicators to determine whether there are any sensitive crops in an area before applying pesticides.
How does the registry work?
ODA designed the tool for registered apiaries and "commercial" sensitive crop producers who produce at least one-half acre of a single type of sensitve crop. The ODA defines sensitive crops as follows:
Apiaries – any ODA-registered apiary
Aquaculture – a location with any fish and other aquatics grown outdoors
Brambles – aggregated total of fruit such as raspberries and blackberries of at least .5 acres
Certified Organic – an organic farm certified by a USDA-accredited agent; certified organic crops, forage, and livestock of at least .5 acres
Nurseries – nursery stock and flowers of at least .5 acres
Greenhouse/High Tunnels – must be for commercial use and produce at least .5 acre of any combination of crops annually
Orchards – fruit or nut-producing trees of at least .5 acres
Grapes – vineyards of at least .5 acres
Tomatoes – all tomato cultivars of at least .5 acres
Fruit (other) - non-tree simple, aggregate and multiple fruits of at least .5 acres, excluding tomatoes, grapes, and brambles
Herbs – herbs and plants for spices of at least .5 acres
Vegetables – root and leafy vegetables, legumes, and pumpkins of at least .5 acres
Registration on OSCR is completely voluntary; a sensitive crop producer may create an account on the OSCR website and map the locations of their crops. ODA will then verify the producer's information before it is available on the registry. Private and commercial pesticide applicators may also voluntarily register on the site. If approved by ODA, an applicator may search the registry to identify the locations of sensitive crops and apiaries. The registry includes a mapping tool with options to search by address, parcel number, township, county, city, village and other methods.
It is important to note that the information provided in the registry is not available to the general public. It is only available to those who have registered on OSCR and have been verified by ODA.
Implications for crop producers and pesticide applicators
The registry offers a good risk management tool to sensitive crop producers. By allowing producers to communicate the existence of sensitive crops, which are typically not as easily observed as other crops, the registry should reduce pesticide drift impacts. One possible implication for sensitive crop producers is the risk of sharing crop information through the registry, but the ODA verification process should minimize potential misuse of registry information.
Reduced drift impacts will also benefit pesticide applicators who use OSCR. However, the voluntary nature of the registry raises potential implications for pesticide applicators. What is the liability exposure for an applicator who knows the registry is available but chooses not to use the tool? Could a harmed party argue that an applicator "should have known" about a sensitive crop because it was registered? Does the availability of the information create a new legal duty for pesticide applicators--a duty to take the additional step to identify nearby sensitive crops? Could an insurer refuse to cover an applicator who failed to consult the registry? Until Ohio courts receive and answer these legal questions, we don't have clear answers.
The caution to pesticide applicators, then, is to take the OSCR seriously. Don't overlook the registry because participation is "voluntary" rather than mandatory. The registry can provide important information that could reduce pesticide exposure to sensitive crops; a pesticide applicator who fails to utilize the information might be increasing his or her potential liability if pesticide drift occurs.
To learn more about the Ohio Sensitive Crop Registry, visit: http://www.agri.ohio.gov/scr/.