• TABLE OF CONTENTS
HIDE
 Front Cover
 Title Page
 Table of Contents
 Preface
 Introduction
 Part I: Federal law
 Part II: Common law
 Part I: Citations
 Part II: Citations
 Back Cover














Title: Laws governing use and impact of agricultural chemicals
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Title: Laws governing use and impact of agricultural chemicals
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Publisher: Food and Resource Economics Dept., Institute of Food and Agricultural Sciences, University of Florida,
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Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Title Page
    Table of Contents
        Page i
        Page ii
        Page iii
        Page iv
    Preface
        Page v
    Introduction
        Page 1
        Page 2
    Part I: Federal law
        Page 3
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        Page 37
        Page 38
        Page 39
        Page 40
    Part II: Common law
        Page 41
        Page 42
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    Part I: Citations
        Page 65
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        Page 68
        Page 69
        Page 70
        Page 71
    Part II: Citations
        Page 72
        Page 73
        Page 74
    Back Cover
        Page 75
        Page 76
Full Text



0 e I/July 1990






LAWS GOVERNING USE AND
IMPACT OF AGRICULTURAL
CHEMICALS: AN OVERVIEW
u Lntra r Science
Library


Circular 887













1


IsFP 26 190i
J"' diversity of Florida


M. T. OLEXA


Florida Cooperative Extension Service
Institute of Food and Agricultural Sciences
University of Florida, Gainesville
John T. Woeste, Dean for Extension










This publication is designed to provide accurate, current and authoritative information on the subject.

However, since the laws, administrative rulings and court decisions on which it is based are subject to
constant revision, portions of this publication could become outdated at any time.


This publication is distributed with the understanding that the author is not engaged in rendering

legal or other professional service. If legal advice or other expert assistance is required, the services of
a competent professional person should be sought.


This publication is supported in part by a grant from the Extension Service of the United States
Department of Agriculture.






Author

Michael T. Olexa is an Associate Professor and Agricultural Law Specialist in the Food and Resource
Economics Department, IFAS, University ofFlorida, Gainesville. He is a plant pathologist, attorney and
project director of the Joint Extension Service, USDA/University of Florida Agricultural Law Extension
Education Program. He is a member of the Florida Bar, the Agricultural Law Committee of the Florida
Bar, and owned and operated a plant nursery for ten years.








LAWS GOVERNING USE AND IMPACT OF
AGRICULTURAL CHEMICALS: An Overview


Michael T. Olexa


























Co-Principal Investigators:
Grover C. Smart, Jr., Professor, Department of Entomology
and Nematology.

Michael T. Olexa, Associate Professor, Agricultural Law Specialist, Food and
Resource Economics Department, Institute of Food and Agricultural Sciences,
University of Florida, Gainesville.









TABLE OF CONTENTS



P R E F A C E .............................................................................................................................................v

IN T R O D U C T IO N .............................................................................................................................. 1

PA R T I: F E D E R A L LA W .................................................................................. ..... .............. 3

THE RELATIONSHIP OF FEDERAL, STATE AND LOCAL LAW ......................................3

CHAPTER I. REGISTRATION, LABELING AND THE USE OF
PESTICIDES: THE FEDERAL INSECTICIDE, FUNGICIDE AND
RODENTICIDE ACT (FIFRA) ........................................................................... 5
CERTIFICATION OF APPLICATORS ....................................................................................... 6
LA B E LIN G ........................................................................................................................... 7
RECALL OF SUSPENDED PESTICIDES........................................................................ 8
ENFO RC EM ENT ................................................................................................................. 8
Private A pplicators .......................................................................................................... 8
C om m ercial A pplicators .................................................................................................. 9
SPECIAL REGULATIONS FOR DISTRIBUTORS.......................................................... 9

PESTICIDE RESIDUES IN FOOD: THE FEDERAL FOOD, DRUG AND
C O S M ET IC A C T .......................................................................................................... 10

FEDERAL MEAT AND POULTRY REGULATIONS ........................................ .............. 12

TREATED SEED: THE FEDERAL SEED ACT AND THE FEDERAL
FOOD, DRUG AND COSMETIC ACT .................................. ......................... ..... 12
LABELING AND RECORD KEEPING REQUIREMENTS FOR TREATED SEED.................. 13
FOOD AND DRUG ADMINISTRATION REGULATION OF TREATED SEED .....................13

PROTECTION OF WILDLIFE: THE ENDANGERED SPECIES ACT............................ 14

INTEGRATED PEST MANAGEMENT ................................................................................... 15


CHAPTER II. AGRICULTURAL CHEMICALS AND WATER
P O L L U T IO N ............................................................................................................. 17









TH E C LEA N W A T ER A C T .................................................................................................. ...... 17
POINT SOURCES OF WATER POLLUTION ............................................... ................. 17
E nforcem ent .................................................................................................................. 18
NON-POINT SOURCES ................................................................................................... 19
DREDG E AND FILL PERM ITS ................................................................................................20
THE RURAL CLEAN WATER PROGRAM ..........................................................................20

THE SAFE DRINKING WATER ACT ..................................................................................... 21
EN FO R C EM EN T ......................................................................................................................21
C ITIZEN SUITS ................................................................................................. ....................22

C H E M IG A T IO N .................................................................. ....................................... .....................22

W ETLAND REG ULATIO N ................................................... ........................... .........23
FEDERAL REGULATION ............................................................. ...........................................23
STA TE R EG U LATIO N .............................................................................................................23


CHAPTER III. REGULATION OF HAZARDOUS WASTES AND USE OF
HAZARDOUS CHEMICALS ................................ ......................... 25

STORAGE AND DISPOSAL OF PESTICIDES AND PESTICIDE CONTAINERS:
FIFRA AND THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)......25

LABEL REQUIREMENTS UNDER FIFRA ................................................. ..........................25

EPA RECOMMENDED PROCEDURES FOR STORAGE AND DISPOSAL ..................25

HAZARDOUS WASTE REGULATIONS RELATING TO PESTICIDES AND
C O N T A IN E R S ..................................................................................................................... 26
EXCEPTIONS FOR FARMERS ........................................................ .............................. 27
EXCEPTIONS FOR SMALL GENERATORS OF HAZARDOUS WASTES ..........................28
SPECIAL REGULATIONS FOR COMMERCIAL APPLICATORS AND OPERATORS OF
STORAGE, TREATMENT, OR DISPOSAL FACILITIES ..............................................28
PENALTIES FOR HAZARDOUS WASTE VIOLATIONS ...................................... .... 29

EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW..................................30

TRANSPORTATION OF HAZARDOUS MATERIALS: THE TRANSPORTATION
SA FETY A CT O F 1974 .................................................................. ............................ 30
UNDERGROUND STORAGE TANKS ...................................................................................31

CHAPTER IV. AGRICULTURAL CHEMICALS AND WORKER
S A F E T Y ................................................................................. ...................................... 33










FIFR A A N D EPA R EG U LA T IO NS .................................................................................................33
THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA) ..........................................33
OSHA REQUIREM ENTS .................................................................................................... 34
HAZARD COM M UNICATION STANDARDS .........................................................................35
RECO RDKEEPING ............................................................................................................ 36
INSPECTIONS AND INVESTIGATIONS ................................... .........................................37
PENALTIES FOR VIOLATIONS ........................................................................................ 38
Citations .................................................................................................................... 38
Beyond the Citation ................................................................................................. 38
M monetary Paym ents ................................................................................................. 38
Crim final Penalties .................................................................................................... 38
Injunctions ................................................................................................................39
OTHER BASES OF LIABILITY FOR INJURIES TO WORKERS ............................................39
THE CO M MON LAW AND OSHA ...................................................................................... 39


PA R T II: C O M M O N LA W .................................................... ............................................... 41

CHAPTER I. COMMON LAW STANDARDS OF CONDUCT AND
T H E O R IE S O F L IA B IL IT Y ................................................................. ............... 41

TH E LEG A L PR O C ESS ............................................................................................................. 41

N EG LIG EN C E ................................................................................................................................ 42
ELEM ENTS OF THE CLAIM .............................................................................................. 42
Duty ........................................................................................................................... 42
Breach .......................................................................................................................42
Cause ......................................................................................................................... 42
Dam ages ................................................................................................................... 43

N EG LIG EN C E P ER S E ................................................................................................................ 43

D E FEN S ES ...................................................................................................................................... 44

D A M A G ES ....................................................................................................................................... 44

NEGLIGENCE AS AN ELEMENT OF OTHER CAUSES OF ACTION...............................44

R ES PO N D EA T S U P ER IO R ....................................................................................................... 44

ST R IC T LIA B ILITY ........................................................................................................................ 45

T R ES PA SS ......................................................................................................................................46
INTENTIONAL TRESPASS ............................................................................................... 46
UNINTENTIONAL TRESPASS .......................................................................................... 47









N U IS A N C E ...................................................................................................................... . .............. 47
ELEMENTS OF A NUISANCE ACTION ...............................................................................47

RIGHT-TO-FARM LAWS............................................................................................................48

INJUNCTIONS AND OTHER FORMS OF EQUITABLE RELIEF ......................................49

STRICT PRODUCTS LIABILITY ............................................................................................. 50

BREACH OF WARRANTY ........................................................................................................ 50


CHAPTER II. LIABILITY FOR DAMAGE CAUSED
BY AGRICULTURAL CHEMICAL DRIFT .................................. ....... ....... .... 53

ST R IC T LIA B ILITY ............................................................................. . ............. ....................... .... 54

N E G L IG E N C E ....................................................................................................................................... 55

RESPECTIVE LIABILITY OF APPLICATORS AND LANDOWNERS..............................56


CHAPTER III. AGRICULTURAL CHEMICAL USE AND LIABILITY FOR
WATER POLLUTION ................................................................................... ........59

SIGNIFICANCE OF WATER POLLUTION TO AGRICULTURE ........................................59

N U IS A N C E ............................................................................................................................. 61

S T R IC T LIA B ILITY .................................................................................................................. 61

JOINT AND SEVERAL LIABILITY .......................................................................................... 61

DAMAGES AVAILABLE TO PLAINTIFFS....................................... ........... 62
ACTUAL DAMAGES ................................................................................................................ 62
PUNITIVE DAMAGES .............................................................................................................. 63
O TH ER R ELIEF ............................................................................................................ .....63

P A R T I: C IT A T IO N S .............................. ................................................................................65

PA R T I : C IT A T IO N S ................................................................................................ ............. 72










PREFACE



This manual is part of an overall review of current issues in agricultural law and an effort to expand
extension education on legal topics of importance to farmers, agricultural scientists and people in farm
related businesses. This phase of the program in agricultural law was supported in part by Special Need
Project Funds from the Extension Service, U. S. Department of Agriculture. The main purpose of the

grant was to develop educational materials for agriculturalists on the legal aspects of the use and impact

of agricultural chemicals.
The author is indebted to the following for review and consultation on this manual:
Principal Investigator, Grover C. Smart, Jr., Ph.D.; O. Norman Nesheim, Ph.D., Pesticide Information
Coordinator, IFAS, University of Florida and Tasha Buttler, Assistant in Pesticide Education, Uni-
versity of Florida.

Appreciation for constructive input and support is extended especially to:
Paul W. Bergman (Retired), Ph.D., Hollis Hall, Ph.D., and Ricardo Gomez, Ph.D., of the National
Agricultural Pesticide Impact Assessment Program (NAPIAP), Extension Service, USDA; Bonnie L.
Poli, National Program Leader Pesticide Education, Extension Service, USDA; Gerald F. Vaughn,
Extension Specialist, Resource Economics and Policy, University of Delaware; and John T. Woeste, Ph.D.,

Dean for Florida Cooperative Extension Service.

The author is indebted to several very capable research assistants of the University of Florida Law
School who helped in the development of the manuscript. These research assistants include Steven Mack,
Eric Lang, Kenneth Schlitt, Christopher Fonzi, Michael Maddux, and Ted Whitlock. Finally, the author
acknowledges the dedicated typing assistance of Mrs. Helen Stoneking.










INTRODUCTION

The use of agricultural chemicals is subject to extensive regulation at every level of government. At

least six federal statutes, numerous amendments, and countless administrative regulations address

every aspect of their use, from manufacture and distribution to storage, application and disposal. State

and local environmental and land use laws also regulate how agricultural chemicals may be used. Many
of these regulations carry civil and criminal penalties. In addition to this extensive mass of regulations,
a farmer may also be subject to a lawsuit if persons or property are harmed by the farmer's use of
pesticides.

Farmers can avoid violating these laws while protecting human health and environment by exercising

care and common sense in the use of agricultural chemicals and through familiarity with the law. The
purpose of this handbook is not to provide an all-inclusive register of every federal, state and local
regulation governing the use of agricultural chemicals, but to provide an introduction and rough guide
through the pesticide regulation maze. This handbook aims to familiarize agrichemical users with the

breadth of governmental regulation and to urge users to take additional steps to learn how the laws may

affect their individual operations.
Farmers and others with questions concerning their agrichemical operations can turn to numerous
sources for answers. Federal, state, and local environmental or agricultural agencies, the Cooperative
Extension Service, as well as private agricultural associations, may serve as excellent sources of in-

formation. Private attorneys specializing in environmental or agricultural law and environmental and

agricultural consulting firms are also useful sources in addressing specific concerns.





































































2










PART I: FEDERAL LAW



THE RELATIONSHIP OF FEDERAL, STATE AND LOCAL LAW


Until relatively recently in the nation's history, pollution and health regulation have been local con-

cerns. While the nation was small and rural, activities of a member of the community that offended or
endangered others could usually be satisfactorily resolved through a lawsuit for nuisance or trespass.
As large population concentrations and heavy industry appeared, local governments developed land use

regulations to segregate residential areas from the noises and pollution of industrial and other commercial
activity. Many agricultural activities, notably feedlots and dairies, were subjected to similar controls.

Agriculture has since undergone its own industrial revolution, with greatly increased use of agricultural
chemicals and farm machinery allowing for far greater production. At first, pesticide regulation was
largely for consumer protection. The laws focused upon the pesticide performing as promised. In this
sense, federal regulation of pesticides was enacted to prevent abuses in the nationwide distribution of
pesticides. Later, the discovery that use of agricultural chemicals could cause adverse environmental and
health effects led to an enormous expansion in the scope of regulation.
In the "environmental decade" of the 1970s, a series of comprehensive Federal laws were passed to
address pressing, nationwide environmental problems. These new environmental laws are so broad and
so complex that many facets of them are still far from full implementation or interpretation. Recognizing
the will and capacity of state governments to address environmental problems, and in order to facilitate
implementation and ease the burden on federal agencies, Congress allowed the EPA to approve state
implementation and administration of the federal laws and encouraged states to pass substitute
legislation to meet or exceed the demands of federal law. In recent years, many states have gone forward
with their own pollution control legislation, some of which is far more strict than federal law. Further,
state and local governments have contributed to the trend towards stricter environmental regulation by
enacting extensive land use legislation. Land use regulations may specify locations where certain pes-
ticides may not be used.
The result of these developments is a pyramidical mass of federal, state, and local laws and
regulations. Federal law must be followed, but often it provides only a regulatory "floor" to which state
and local governments may add further requirements. Because of the multi-layered structure of regu-










lations, users of agricultural chemicals should approach the area of government regulation carefully,
being certain to learn local and state legal requirements. Although federal legal demands are often met

by compliance with state and local laws, familiarity with the federal regulatory scheme is also essential
for all agricultural chemical users and applicators.
A discussion of individual state laws is beyond the scope of this handbook. However, the following
discussion of federal laws will familiarize the reader with the basic framework of agricultural chemical

regulation in the United States and with the major requirements offederal law. Because many state laws
are patterned on federal law, an understanding of federal requirements will also enable users of agri-
cultural chemicals to better understand state requirements.









CHAPTER I




REGISTRATION, LABELING AND THE USE OF PESTICIDES: THE
FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT (FIFRA)

The Federal government first regulated pesticides when Congress passed the Insecticide Act of 1910.1
This law was intended to protect farmers from adulterated or misbranded products. Congress broadened
the Federal government's control of pesticides by passing the original Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA) of 1947.2 FIFRA required the Department of Agriculture to register all
pesticides prior to their introduction in interstate commerce.3 A 1964 amendment authorized the Sec-
retary to refuse registration to pesticides that were unsafe or ineffective and to remove them from the
market.4
In 1970, Congress transferred the administration of FIFRA to the newly created Environmental
Protection Agency (EPA).5his marked a shift in federal policy from the control of pesticides for rea-
sonably safe use in agricultural production to control of pesticides for reduction of unreasonable risks to
man and the environment)This new policy was strengthened by the passage of the Federal Environ-
mental Pesticide Control Act of 1972 (FEPCA) which amended FIFRA by specifying methods and stan-
dards of control in greater detail. Subsequent amendments have clarified the duties and responsibilities
of the EPA. Furthermore, there has been a shift toward greater emphasis on understanding and
minimizing risks associated with toxicity and environmental degradation, and away from the efficacy
issues that dominated earlier legislation)
LUnder FIFRA, no one may sell, distribute or use a pesticide unless it is registered by the EPA.7
Registration includes approval by EPA of the pesticide's label, which must give detailed instructions for
its safe use.8 The EPA must also classify pesticides for either "general" or "restricted" use.9 General use
pesticides may be applied by anyone, but restricted pesticides may only be applied by certified applicators
or persons working under their direct supervision10 Because there is only limited data for new chemicals,
most pesticides are initially classified as restricted use. Applicators are certified by the states where they
operate under programs approved by the EPA.11










CERTIFICATION OF APPLICATORS

FIFRA distinguishes between commercial and private applicators.12 Private applicators use or su-

pervise the use of pesticides on property owned or leased by them or their employers for the purpose of

producing an agricultural commodity. Commercial applicators include all other certified applicators.

The EPA has established rules and procedures that must be followed by the states for certifying both

groups.13

Private applicators may be required by the states to demonstrate their competency to apply pesticides

through a written or oral examination.14 This generally involves testing their ability to read and un-

derstand instructions printed on labels and their general comprehension of safety and environmental

problems arising from pesticide use.15

Restrictions on commercial applicators are more stringent, requiring persons seeking certification to

demonstrate competency by taking a written examination and, if required by state law, to attend certi-

fication programs and take performance tests.16 Topics covered by the examinations may include ability

to read and understand a label, knowledge of application equipment and techniques, knowledge of the
health and environmental effects of pesticides, and basic knowledge of pesticide laws." For example,

Florida examinations cover: label and labeling comprehension; safety factors; environmental conse-

quences; pest features; pesticide factors; equipment characteristics; application techniques and law and

regulations.'8

The EPA regulations also divide commercial applicators into categories based on types of pesticide

use.19 Some examples are agriculture, forestry, ornamental and turf pest control, seed treatment, and

aquatic weed control. Persons seeking certification as commercial applicators must demonstrate

knowledge of the use and handling of pesticides generally, and knowledge of the particular standards

applicable to their respective area or areas.20 Federal regulations do not specify when certification must

be renewed, however, most states do. For example, Florida regulations require renewal of commercial

and private certification every (4) four years through Continuing Education units or retaking the exam.21

Special certification procedures for aerial applicators of pesticides are required by the Federal

Aviation Administration (FAA).22 The FAA regulations require that persons conducting "agricultural

aircraft operations"23 apply for an agricultural aircraft operator certificate with the appropriate FAA

district office.24 Like FIFRA, the FAA regulations divide applicants into "private" and "commercial"

operators.25 Private operators may not engage in agricultural aviation activities for hire, operate over a










congested area, or spray over property not owned or leased by the operator.26 These limitations do not

apply to commercial operators, although commercial operators operating over congested areas must
comply with a detailed list of restrictions set forth in the regulations.27 These restrictions include re-
quirements that commercial operators obtain prior approval from the political subdivisions) where the
operation is to take place, file a flight plan with the FAA district office, and give notice to the public.28

Private operators must have at least a current United States private pilot license.29 Commercial operators

must have a current commercial or airline transport pilot license.30 Both private and commercial op-
erators must demonstrate, or, in the case of commercial operators, the person designated as the chief
supervisor of agricultural aircraft operations must demonstrate, "satisfactory knowledge and skill re-
garding agricultural aircraft operations."31 This demonstration consists of a "test of knowledge" of
pesticide handling and application techniques and a "test of skill" involving a flight test.32 An agricultural
aircraft operator certificate is valid until it is surrendered, suspended, or revoked for a violation of the

FAA regulations or FIFRA.33


LABELING

Labeling is the basis for enforcement of FIFRA, making knowledge of FIFRA's labeling requirements

of primary importance to farmers and applicators. FIFRA defines "label" as "the written, printed, or

graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers."34
"Labeling" is defined as "all labels and all other written, printed, or graphic matter -
(A) accompanying the pesticide or device at any time; or
(B) to which reference is made on the label or in literature accompanying the pesticide or device."35
FIFRA makes it unlawful to "use any pesticide in a manner inconsistent with its labeling."36

Thus, the applicator of pesticides has a legal obligation to read and follow not only the label instructions
attached to the product, but also all material to which the label refers.37 Failure to do so could result in
a violation of FIFRA.
The EPAhas been undergoing a program to revise its labeling policy, and has published detailed proposed

regulations outlining labeling requirements for pesticides and pesticide application devices.38 The

proposed regulations require, in addition to more specific application directions, more detailed expla-
nations of product ingredients including toxicity, first aid for overexposure, requirements for applicator
protection equipment, statements detailing environmental and flammability hazards, and reentry









restrictions.9 Recent amendments to FIFRA authorize the administrator of the EPA to require that
manufacturers of pesticides provide requirements and procedures for the transportation, storage and
disposal of pesticides, pesticide containers, and pesticide wastes on the label.40


RECALL OF SUSPENDED PESTICIDES

The 1988 amendments to FIFRA contain provisions requiring the recall of pesticides if their regis-
tration is suspended, or if the Administrator of the EPA makes an emergency finding that recall of the
pesticide is necessary to protect health or the environment.41 If a pesticide is recalled, the registrant must
take reasonable steps to inform users of the recall and must provide storage facilities to persons in
possession of the pesticide and, if requested, transportation of the pesticide.42 Users of the recalled
pesticide are entitled to an indemnity from the Federal government (Administrator of the EPA) for the

price of the pesticide.43 An indemnity cannot be made unless there is a specific line item appropriation
of funds made in advance44 by Congressional Committees on Appropriations.45


ENFORCEMENT
FIFRA achieves the congressional objective of environmental protection in three manners. Section
136j explains what acts are unlawful violations ofthe statute. Sectionl36k provides "stop use" provisions,
which do not penalize the user of the pesticide but prevent its further use. Finally, there are provisions
that penalize violators of FIFRA.46 The distinction between private and commercial applicators is sig-
nificant when penalties are at issue.
Private Applicators: Private applicators who use a pesticide "in a manner inconsistent with its la-
beling" are subject to written warning or citation from the EPA.47 Subsequent violations are punishable

by a civil penalty of not more than $1,000 for each offense.48
Private applicators who apply pesticides for others, but who do not come within the definition of a
commercial applicator, may be assessed a civil penalty of not more than $500 for the first offense instead
of a written warning or citation.49 Subsequent violations are punishable by civil penalties of not more

than $1,000 for each offense.50 Before any civil penalty is assessed, the person charged is given notice and
an opportunity for a hearing.5"
In determining the amount of the penalty, the EPA considers the appropriateness of the penalty to:
the gravity of the violation,










the effect on the person's ability to continue in business, and

the size of the business of the person charged.52

If the agency finds that the violation occurred despite the exercise of due care or did not cause significant

harm to health or the environment, the EPA may issue a warning instead of assessing a penalty.53
Under FIFRA, private applicators may be held liable for persons acting for or employed by them.54 This
means that if a person acting for or employed by the farmer violates FIFRA, the farmer as well as that
person is subject to the penalty.

Private applicators are also subject to criminal penalties for knowingly violating any provisions of the

statute.55 A knowing violation of the statute is a misdemeanor, punishable by a fine of not more than
$1,000 or imprisonment for not more than 30 days, or both.56 Private applicators are also subject to
criminal penalties for knowing violations committed by persons acting for or employed by them.57

Commercial Applicators: A commercial applicator, wholesaler, dealer, retailer or other distributor
who uses, stores or disposes of a registered pesticide in violation of FIFRA may be assessed a civil penalty

of not more than $5,000 for each offense.58 A person charged with a violation must be given notice and

an opportunity for a hearing before assessment of the penalty.59 In determining the amount of the
penalty, the EPA will consider:
the gravity of the violation,

the effect on the person's ability to continue in business, and

the appropriateness of the penalty to the size of the business of the person charged.60

Any registrant, commercial applicator, or distributor who knowingly violates a provision of FIFRA
commits a misdemeanor and upon conviction can be fined not more than $25,000, or imprisoned for up
to one year, or both. The acts or omissions of anyone acting for or employed by the applicator are at-
tributed to the applicator.

While several environmental laws contain provisions allowing a private right of action or a citizen's
suit, FIFRA does not. Therefore, suits by private citizens for improper pesticide application, storage or
disposal must be brought under common law theories of liability. These common law theories are dis-
cussed in part II.


SPECIAL REGULATIONS FOR DISTRIBUTORS

Commercial pesticide distributors may be required to maintain records of the delivery, movement, or










holding of pesticides or pesticide devices.61 This would include storage and disposal of pesticides and

containers. Upon request by EPA or designated state officials these records must be produced for in-
spection.62 Prior to inspection, officials must present to the distributor a written statement indicating the
reasons for the inspection and whether a violation of the law is suspected.63 Commercial applicators who
do not deliver pesticides independent of their application are not treated by the act as distributors.64
EPA or designated state officials are also authorized to inspect any place where pesticides or devices

are held for distribution or sale for the purpose of inspecting and obtaining samples of any containers or
labels to be used for such pesticides or devices. Officials must present a written statement to the appli-
cator indicating the reasons for the inspection, and whether a violation of the law is suspected. If there
is reason to believe a violation of the law exists, officials may obtain from the appropriate court a warrant
authorizing entry, inspection and reproduction of records and seizure of any pesticide or device which
is in violation of the statute.65


PESTICIDE RESIDUES IN FOOD:
THE FEDERAL FOOD, DRUG AND COSMETIC ACT
Pesticide residues on agricultural commodities are regulated under both FIFRA and the Federal Food,

Drug and Cosmetic Act (FFDCA).66 FIFRA regulates residues by forbidding the use of a pesticide in a
manner inconsistent with its label, and by denying registration to pesticides found to cause unreasonable
adverse effects to man or the environment. The FFDCA prohibits the distribution of agricultural com-
modities that contain levels of pesticides beyond federally determined maximum tolerance levels.67 Both
acts are interrelated as the EPA will not register a pesticide for use under FIFRA until maximum residue
levels have been established under FFDCA.68 Information on pesticide residue tolerances is utilized in
deciding whether to register the pesticide and in composing the label.69 Thus the pesticide label's ap-
plication instructions, if followed carefully, will help ensure that maximum tolerance levels are not
exceeded. Under FFDCA, an agricultural commodity containing pesticides is deemed unsafe unless a
tolerance level has been set or unless a pesticide has been exempted from the tolerance level require-
ment.70 Furthermore, if a pesticide is used on a crop which is not listed on the label, and residue is found,
the product may be deemed unfit and destroyed by the government.
Section 408 of FFDCA sets forth standards for establishing maximum pesticide levels in raw agri-
cultural commodities.7 The factors to be considered in setting maximum tolerance levels include:










the necessity of the pesticide to the production of an adequate, wholesome, and economical food

supply,
adverse effects of the pesticide on consumers, and

the opinion of the Secretary of Agriculture as to the usefulness of the pesticide.

Therefore, maximum tolerance levels are set based on a risk/benefit assessment.
If residues in excess of maximum tolerance levels are found on raw food products, those products are

deemed "adulterated" and subject to seizure.72 The producer or seller is subject to administrative pen-

alties and their operations may be enjoined.73 That is, the producer or seller may be forbidden by a court

from continuing its operations.

Section 409 of the Act regulates food additives in processed foods.74 In general, processed foods may
contain pesticide levels no greater than the tolerance level allowable for the raw commodity from which

the processed food is derived.75 If the FDA finds that pesticide levels are concentrated during processing,

resulting in greater levels of pesticide residues than the tolerance specified for the raw agricultural

commodity, they will determine that a food additive is present.76

The FFDCA requires the EPA to set more rigorous standards for determining pesticide tolerances in

food additives than those standards applied for determining pesticide tolerances in raw agricultural
commodities.77 Under section 409, a food additive may not be approved if it is found to be oncogenic

(causes an increase in the incidence of malignant or benign tumors in humans or animals).78 Unlike section

408, which regulates raw commodities, section 409 does not allow for a risk/benefit analysis and flatly

bans any cancer-causing additive.7 Thus, somewhat anomalously, the FFDCA might in certain situa-

tions allow cancer-causing residues in raw produce, but ban their presence in processed versions of the
same commodity.80

This inconsistency is magnified by the fact that as medical and chemical knowledge expands, the FDA

is discovering that a much wider range of chemicals is capable of causing cancer than had previously been

thought. Thus many newer chemicals or compounds, tested by more sophisticated methods and in light

of new knowledge, may be banned from foods where residues of established chemicals, equally harmful,
are allowed. The FDA is currently reviewing its policy in the area and may come forward with new
standards for many widely used chemicals.

In order to ensure that pesticide levels do not exceed maximum tolerance levels for raw commodities,

farmers must be certain that the amount of pesticides applied to a crop do not exceed the amount specified










on the label and that pesticides are applied at the proper time and under proper conditions. For the same
reason, a pesticide should never be applied to a crop not specified on the label, for there may be no

tolerance level set at all.


FEDERAL MEAT AND POULTRY REGULATIONS
Pesticide residues in meat and poultry products are regulated by the United States Department of

Agriculture (USDA) under the Federal Meat Inspection Act81 and the Federal Poultry Products In-

spection Act.82 The USDA has the authority to inspect meat and poultry and seize and condemn products
which it deems to be unwholesome, adulterated or misbranded.83 Meat and poultry are adulterated if
they contain pesticide residue levels exceeding the tolerances for pesticides established by the EPAunder
the Food, Drug and Cosmetic Act.84


TREATED SEED: THE FEDERAL SEED ACT AND
THE FEDERAL FOOD, DRUG AND COSMETIC ACT
The Federal Seed Act85 governs interstate and foreign commerce in seeds for agricultural purposes.
Through the broad definition given "interstate commerce" by both the Federal Seed Act itself6 as well
as by the courts,87 almost any commercial transaction can be construed as interstate and thus subject to
the requirements of the Federal Seed Act.
The Act establishes requirements for record-keeping8s and for the labeling"9 of seed products with the

intent of providing consumers with complete information on the kind, variety, quantity, treatment and
quality of the seeds and of preventing the introduction of misbranded or adulterated seed into com-
merce.90
The labeling and record-keeping provisions of the Act do not apply to carriers merely transporting seed

and not engaged in seed processing or merchandising.91 Nor do the provisions apply to seed produced by

farmers and sold directly to consumers, provided the farmer is not selling seed produced by others.92
Seed intended for use as feed or in manufacturing are not subject to the labeling provisions of the Act

when transported in channels of commerce usual for such seed.93 Such seed may, however, come under
the regulation of the Federal Food, Drug and Cosmetic Act if it has been treated. The treatment of seed
is discussed below.
Seed transported in bulk is excepted from the labeling requirements of the Federal Seed Act provided
the information otherwise required on the label is provided in the invoice.9" If seed is transported in










containers of20,000 pounds or more, the individual containers need not contain the required information
as long as such information is recorded in the invoice and each container is marked with a lot number.95

A violation of the Act or its regulations is punishable by a civil penalty of not less than $25 or more

than $500 for each violation.96 However, a person who violates the Act knowingly or through gross

negligence is subject to a criminal penalty of a $1,000 fine for the first offense, and fines of not more than

$2,000 for subsequent offenses.97


LABELING AND RECORD KEEPING REQUIREMENTS FOR TREATED SEED

As defined by the Federal Seed Act, treated seed means seed given an application of a substance or

subjected to a process designed to reduce, control, or repel disease organisms, insects or other pests which

attack seeds or seedlings.98 Any agricultural or vegetable seed used for seeding purposes that has been

treated must be labeled, and the label must disclose all substances used in treating the seed and whether
the substances used in treating the seed are harmful to humans and animals. If they are, a warning

statement is required.99

The Federal Seed Act requires all persons transporting or delivering agricultural seeds to keep a complete

record for three years.'00 The record must include the origin, treatment, and records of laboratory tests

for germination and purity of each seed lot.'10 All persons transporting or delivering vegetable seeds must
keep a complete record of treatment, germination and variety.102 USDA officials have the authority to

inspect these records.10' The complete record for a lot consisting of or containing treated seed must also

include:

records necessary to disclose the name of any substance or substances used in the treatment of
the seed, including a copy of the label or invoice, and
a representative sample of the treated seed.104


FOOD AND DRUG ADMINISTRATION REGULATION OF TREATED SEED

Despite the Federal Seed Act requirements for adequate labeling and record- keeping for treated seed,

surplus stocks of treated seed have occasionally been mixed with untreated seed for use in human or

animal food often with disastrous results. Perhaps the best known case is First National Bank v. Nor-
Am Agricultural Products, Inc.105 In this case, a company gave a farmer, without charge, a quantity of

surplus seed that the company had treated with a highly toxic mercuric fungicide. The seed was fed to










hogs and mercury accumulated in the bodies of the animals. The hogs were slaughtered and fed to family
members resulting in serious injuries to four children. Although the tag and label indicated that the seed

had been treated, the court held that the warning statement did not reasonably communicate the extent

or seriousness of the harm that could result from feeding the seed to livestock. The court also held that
the means used to communicate the warning (i.e., the tag and label) were inadequate.106 The pesticide
registrant, not the company that treated the seeds and gave them to the farmer, was held liable for the
injuries.
In response to such accidents, the Food and Drug Administration (FDA) issued regulations bringing

certain foods under the control of the Food, Drug and Cosmetic Act. Regulations issued under this Act
and under FIFRA specify tolerances for certain pesticide residues on food and agricultural commodities.
Any food not meeting the pesticide tolerances or any other standards established by the Food, Drug and
Cosmetic Act constitutes "adulterated food."107 Interstate transportation of adulterated food is a violation
of the Food, Drug and Cosmetic Act and may result in civil and criminal penalties as well as seizure of

the food through civil proceedings.
The FDA regulations addressing treated seed govern food seed such as wheat, corn, oats, rye, barley,

and sorghum that have been treated with any poisonous substance in excess of tolerances recognized by
the FDA.108 Treated seed must be stained or colored to make it conspicuous if mixed with untreated seed.
A suitable color for staining is one that is not easily removed and is sufficient in contrast to the natural
color of the food seed so as to make the treated seed readily distinguishable from untreated seed.109
Any interstate transportation of treated seed not stained as required by the FDA regulations con-
stitutes transportation of adulterated food and subjects the persons responsible to the penalties of the
Food, Drug and Cosmetic Act. The regulations also note that treated seed packaged for household use
requires additional labeling precautions as provided by the Hazardous Substances Act.110


PROTECTION OF WILDLIFE: THE ENDANGERED SPECIES ACT
Under the Federal Endangered Species Act,"I it is unlawful to "take" any animal listed by the United
States Fish and Wildlife Service as an Endangered Species.112 "Take" is broadly defined to mean "harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in such con-
duct."113 "Harm" has been defined by the Fish and Wildlife Service as an act which actually kills or injures
wildlife.14 Such acts may include significant habitat modification or degradation where it actually kills










or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding,
or sheltering.115 Thus, when using agricultural chemicals or clearing or altering land, farmers should be
alert that their actions might affect endangered species or their habitat. Pesticides might injure or kill

endangered species if allowed to drift onto habitat, or pesticide and fertilizer runoff into streams, lakes

or wetlands might be found to significantly degrade endangered wildlife habitat.
Pesticides applicators should carefully read the labeling on the pesticide for any reference to effects
on endangered species. They should also find out whether endangered species are present in the area to
be treated or likely to be affected by treatment.116 The EPA has announced its intention to add application

restrictions to the labeling of certain pesticides in order to meet its obligations under the Endangered

Species Act and assist farmers in avoiding harm to endangered species.117 These restrictions are

scheduled to appear on pesticide labels by 1991.
Penalties under the Endangered Species Act are severe. Knowing violations of the Act are punishable
by a civil fine of up to $25,000 for each violation, and by criminal penalties of a fine of up to $50,000 or
imprisonment for up to one year.118 The Act also contains a citizen's suit provision, which means that

private citizens may sue the Secretary of the Interior to compel enforcement actions against a violator

or enjoin any activity threatening endangered species.'19


INTEGRATED PEST MANAGEMENT
Integrated Pest Management (IPM) is: "The control of insect and plant pests through use of naturally

occurring pest controls such as weather, disease agents, predators, and parasites. Production practices

such as crop rotation to minimize buildup of pest populations and the use of pest resistant crop varieties
may also be used. Pesticides are used only as necessary to keep pests from surpassing intolerable
population levels. These population levels are predetermined from assessments of the pest damage
potential and the environmental and economic costs of the control measures."120 This level is commonly
referred to as the "economic threshold level."121
In many instances, use of IPM techniques can result in an equally effective, less expensive (through

reduced consumption of expensive chemicals) program ofpest control than reliance on pesticides alone.122
FIFRA requires that the administrator of the EPA make IPM information available to those who request
it through the Cooperative State Extension Services and applicator certification programs.123 Many state
extension services provide additional training and assistance in IPM techniques. Such services might










include "scouting" fields for pest population levels and planning appropriate IPM programs. The use of

IPM techniques, where practical, are recommended as a means of reducing excessive or superfluous use

of pesticides and thus reducing the chance of accidents and lawsuits resulting from injury to health or

the environment.










CHAPTER II


AGRICULTURAL CHEMICALS AND WATER POLLUTION

THE CLEAN WATER ACT
Through the Federal Water Pollution Control Amendments of 1972,124 commonly known as the Clean

Water Act, Congress established a national strategy to reduce water pollution. As stated in the Act's
declaration of goals and policy, the objective of the law was to restore and maintain the chemical,
physical, and biological integrity of the nation's water and to eventually eliminate the discharge of
pollutants altogether.125

The Clean Water Act functions primarily by requiring that persons engaged in polluting activities
obtain a permit from the EPA containing detailed limitations on the type and amount of polluting
substances that may be discharged, and the manner in which they are to be discharged.126 If the permit
conditions are violated, the permit holders subject to civil or, in extreme cases, criminal penalties.127 The
Act authorizes the states to implement and enforce its provisions, and most states have done so.128 In
these states, permits are obtained from the state's environmental regulatory agency.*

The Clean Water Act establishes three categories of pollution sources: Point sources, non- point
sources, and dredge and fill operations.


POINT SOURCES OF WATER POLLUTION
The act defines a point source as any discernable, confined and discrete conveyance from which a
pollutant may be discharged.129 For example, a pipe or a ditch carrying pollutants which discharges into
a river is a point source of water pollution.130 A point source may also be a container which is emptied into
water.'31 An operator of any point source which discharges pollutants into the nation's waters must
obtain a permit, or be subject to penalties.132
The terms of the Act are broadly defined to bring a large number of activities within its requirements.
"Pollutant" is defined by the EPA as "dredged spoil, solid waste, incinerator residue, sewage, garbage,

*State water pollution management instituted pursuant to the Clean Water Act may be more stringent than the
Act itself. This chapter addresses federal law. The possibility of the existence of additional local and state laws
regulating water pollution should always be kept in mind. To keep abreast of the laws in their areas, farmers should
contact their state department of agriculture, appropriate state environmental regulatory agency or an attorney
before undertaking any activity likely to pollute water.









sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked

or discarded equipment, sand, cellar dirt, and industrial, municipal, and agricultural wastes discharged

into water."133 The term "waters of the United States" as referred to in the Act extends not only to open

bodies of water such as harbors, lakes and streams, but also to wetlands and even dry spillways that flow

only during heavy rainfalls.134

However, the Act specifically exempts agricultural irrigation return flow and agricultural stormwater

runoff from the definition of a point source, and thus from the National Pollutant Discharge Elimination

System (NPDES) permit requirements.135

Although not necessarily "point sources," several types of agricultural operations have been made

subject to the NPDES permit requirements. These are operations that by nature are likely to pollute

water. They include fish farms, most agricultural processing facilities, including feedlots and packing

houses, sawmills, sugar mills, grain mills, fruit and vegetable processing or canning facilities, and

fertilizer manufacturing plants."36

The NPDES permit system is based on water quality standards developed by the EPA or by the

states.'37 Under this system, all water bodies in the United States are classified according to the uses or

planned uses.'38 A water quality standard containing limits on pollutants is then developed to protect

those uses.139 All permits issued must then contain limitations on discharges sufficient to protect the

water quality standard for the particular water body.140

To simplify the process for permit applicants, the EPA has developed standards for permits based on

the industry for which it is issued, available pollution control technology, and the water quality

standards to be met.141 Stricter standards are placed on industries which discharge toxic pollutants.142

The required pollution control devices and other conditions governing pollution discharge are contained

in the permit and must be followed closely. When a permit expires, stricter conditions may be imposed.

Enforcement: Owners or operators of point sources are required to maintain operational records for

a period of three years, make reports, install, use, and maintain certain monitoring equipment or

methods, and take samples.143 Officials responsible for enforcing the act have the right to enter and

inspect any point source operation and may bring civil suit against a violator or issue an order to seek

compliance.144

Civil fines can range up to $25,000 per day for a willful or negligent violation.'45 Criminal fines range

from $5,000 to $50,000 per day plus up to three years imprisonment. The courts also have the right to










immediately halt any operations which illegally discharge pollutants.146

The Clean Water Act also contains a citizen suit provision, authorizing any person "having an interest

which is or may be adversely affected" by a violation of the act to sue either the violator directly or the
EPA to compel enforcement.147


NON-POINT SOURCES

Non-point sources of pollution are all sources of pollution other than point sources or pollution from

dredge and fill activities.148 The 1987 amendments to the Clean Water Act included a new provision'49
which requires the states to develop "non-point source management programs."
These amendments are of great importance to farmers because they may impose restrictions on

pollutants in agricultural runoff or other non-point source discharges of agricultural chemicals. Al-

though many states already have non-point source water pollution regulations, the new federal law may

require that these be strengthened.
The state non-point source management programs are to include assessment reports which:

identify waters in the state which require control of non-point sources of pollution in order to

attain or maintain applicable water quality standards or the goals and requirements of the Clean

Water Act;

identify categories and subcategories of non-point sources of pollution which add significant

pollution to state waters (the act also gives the states authority to include individual polluters
in the assessment report);

describe the processes the state intends to follow to identify Best Management Practices (BMPs)

and other measures to control and reduce non-point source pollution;

identify and describe state and local programs for controlling pollution from non- point sources.15

In addition to an assessment report, each state must submit to the Administrator of the EPA a
management program for control of non-point source pollution. Each program is required to:
identify measures to be taken by the state to reduce non-point source pollution;

identify the programs the state intends to utilize to implement non-point pollution control

measures;

contain a schedule governing implementation of state programs;

identify all sources of funding, including federal funding, available to the state.'"'










This section of the Clean Water Act also provides for a federal grant program for implementing non-

point source pollution control programs.

Because runoff and leaching of fertilizers and pesticides is a major source of non-point source water
pollution, the state management programs probably, when completed, may closely regulate farmers and

pesticide applicators. Familiarity with the new state programs is therefore mandatory to avoid state

penalties. The states were required to submit their reports to the Administrator of EPA by October,

1988. For details about state programs, farmers and agricultural chemical applicators should contact
their state departments of agriculture and environmental regulation.


DREDGE AND FILL PERMITS

The Army Corps of Engineers is responsible for enforcing the dredge and fill provisions of the Clean

Water Act.152 Activities that result in the discharge of dredged or fill material into the waters of the
United States is prohibited unless a permit is obtained from the Corps.153 The construction or mainte-
nance of farm or stock ponds, irrigation and drainage ditches, as well as "normal" agricultural activities
are exempted from the dredge and fill permit requirements.154 Normal agricultural activities for the

purposes of the Act include plowing, planting, harvesting, minor drainage, and upland soil and water

conservation practices.1"5


THE RURAL CLEAN WATER PROGRAM
The Rural Clean Water Program (RCWP) is a Federal program designed to assist farmers in imple-

menting erosion control practices. The goal of the program is to improve water quality in rural areas

through reducing non-point source pollution from agricultural operations.156 Participation in the pro-

gram is voluntary.

Rural areas with critical water pollution problems are identified by the states, who assist the USDA
and the EPA in organizing and implementing RCWP projects. Eligibility for federal funds for the pro-
gram is limited to those areas determined to have the most critical water pollution problems based on

type, amount, and extent of pollution, the impact of the pollution on human health and on the environ-
ment, the uses to which the polluted waters are put, and the feasibility of correcting the pollution

through the use ofBest Management Practices (BMPs).'57 BMPs are erosion and runoff control measures
recommended for the various areas of the country by the EPA and the U. S. Soil Conservation Service.










An area is more likely to be selected if state and local officials are committed to assisting the project
through cost-sharing or technical assistance.'58
Once an area is deemed eligible, landowners contributing to the pollution are offered long term
contracts for financial and technical assistance in installing appropriate BMPs on their property. Private

landowners are eligible for up to $50,000 in assistance,'59 while public corporations (corporations with

publicly traded stock) are eligible if they can demonstrate that installing BMPs without federal assis-
tance would constitute an "inappropriate burden" on the corporation.160 However, federal assistance is
limited to fifty percent of the total cost of installing the BMPs unless a variance is granted.'61 Variances
are more likely to be granted where the lack of erosion or runoff control results in serious pollution at
a location removed from the site.162


THE SAFE DRINKING WATER ACT
The Safe Drinking Water Act'63 may also affect a farmer's use of pesticides. Under the Act, the EPA
establishes national drinking water standards, called maximum containment levels (MCL). Public water
systems may not deliver water exceeding the MCL.'6 While the law is intended to control the operations

of the public water systems and not the activities of potential polluters, it can and has been so applied.'65

In particular, states must control and monitor activities posing a threat to public drinking water
sources.166 Any activity that introduces pollutants into a source of drinking water, not necessarily just
into a well, is within the scope of the Safe Drinking Water Act.'67 This means that applying pesticides
may fall within the purview of state control if drinking water sources are threatened.

An irrigation back-flow may constitute underground injection and thus fall within the Act if it results
in the subsurface introduction of pesticides or other pollutants.'68 If water pollutants are passed back into
the water source and subsequently pose a threat to a public drinking water source, the irrigation op-
eration may be shut down. This would be true even if the Safe Drinking Water Act did not apply to back-
flow. Authority to halt any operation posing a danger to public health and safety lies with each state and
the EPA.


ENFORCEMENT
Civil fines can be as high as $25,000 per day for a non-willful or willful violations.'69 Administrative
penalties can be as high as $125,000. Furthermore, willful violators can be subject to as much as three
years imprisonment.'70










CITIZEN SUITS

Any person may commence a civil action against another who violates any requirement imposed by

the Act or by enforcement officials.7' However, before violators may be sued, they must be given 60 days

in which to correct the violation. If the violation is corrected within this period, no court action by private

citizens is allowed.172 The state, however, can still impose civil fines for each day the violation remains

or remained uncorrected.173


CHEMIGATION
Chemigation refers to the application of fertilizers or pesticides through irrigation systems. If such

systems are not carefully designed and safely managed, the process can result in serious groundwater

contamination and legal consequences of significant magnitude.

Safety equipment is available that, when properly installed, can prevent back-flow and subsequent

groundwater contamination. Farmers should consult state laws and local ordinances which may

mandate the installation of equipment for back-flow prevention. Farmers seeking information on the

installation and maintenance of back-flow preventers should contact their respective state extension

agents. Back-flow preventers are relatively inexpensive and can prevent serious contamination of

groundwater.

Although the farmer cannot be completely shielded against exposure to legal liability, the installation

of safety equipment will reduce exposure. It is estimated that the expense of such installation is

somewhat less than the total cost of the irrigation system. Additional safeguards may include the re-

quirement that employees obtain and maintain certified applicator status; prechemigation water

analysis at the water source and locations near the water source; consideration of run-off direction;

knowledge of potential plant toxicity in the preparation of chemical application schedules and dosage

rates; close attention to calculated and recommended dosage rates; sound soil conservation techniques;

consultation with legal counsel on the advisability of purchasing worker's compensation insurance

coverage and purchase of chemical liability insurance."74

EPA has established chemigation labeling requirements for all pesticides released for shipment by a

registrant afterApril 30,1988. Ifthe registrant intends that a pesticide be used through irrigation systems,

the registrant must provide specific instructions for such use on the pesticide label. If the registrant does

not intend for the pesticide to be used through irrigation systems, the pesticide label must prohibit such

use.175










WETLAND REGULATION
FEDERAL REGULATION

The development of wetlands is regulated by both the U. S. Army Corps of Engineers176 and the EPA177
at the federal level. The Corps has broad authority to regulate activities affecting the course, location or
capacity of navigable waters.17 The Corps also has power to regulate nonnavigable rivers and streams
and adjacent wetlands. Because actual connection to navigable waters is not required, the Corp's
jurisdiction extends to virtually any body of water, plus adjacent wetlands, in the United States.179

Activities involving the discharge of dredged or fill material require a permit from the Corps. The criteria
for permitting involves the application of a public interest test adopted by the Corps180 and a set of
guidelines adopted by EPA'8 in consultation with the Corps. The public interest criteria involves a
balancing of the various factors affecting the public interest, such as the preservation of wetlands and

associated wildlife. The Corps almost always grants such permits, suggesting that, to them, dredge and

fill activity is beneficial.

The guidelines adopted by the EPA are used to evaluate discharges of dredged or fill materials. The
EPA can enforce these guidelines by "vetoing" Corps issued permits, which is very rare.'82 The EPA's
guidelines prohibit the discharge of dredged or fill material unless the effects on water quality, wildlife
and other resource values associated with wetlands are not adverse. If there is a practical alternative that

would be less damaging, the discharge is prohibited, and if the activity is not water dependent, practical

alternatives are presumed to be available.


STATE REGULATION

Many states have enacted strict legislation to control the use and development of wetlands. An ex-
ample of comprehensive state wetland legislation is Florida's Warren S. Henderson Wetlands Protection

Act.18' The Wetlands Protection Act applies to construction, dredge, or fill activities conducted in waters
of the state.184 In all instances, water quality standards must be maintained.'85 Generally, a permit must
be issued if it is "not contrary to the public interest."'86 The public interest determination consists of a
balancing of factors including the project's effects on the general health, safety and welfare, the property
of others, fish and wildlife, navigation, the flow of water, erosion, shoaling, fishing, recreation, marine

productivity and significant historical and archeological resources."'7 Cumulative impacts must also be
considered." 8 If the applicant is unable to otherwise meet the public interest test, proposals to mitigate









the adverse effects of the project must be considered.189 Stricter permitting criteria may be adopted for
certain sensitive areas such as Outstanding Florida Waters and Areas of Critical State Concern.









CHAPTER III


REGULATION OF HAZARDOUS WASTES
AND USE OF HAZARDOUS CHEMICALS


STORAGE AND DISPOSAL OF PESTICIDES AND PESTICIDE CONTAINERS:
FIFRA AND THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)
Farmers and commercial pesticide applicators are subject to penalties if they fail to store or dispose
of pesticides and pesticide containers properly. The two principal Federal statutes applicable in this area
are FIFRA and the Resource Conservation and Recovery Act (RCRA).190 The EPA has the primary re-
sponsibility for enforcement of these statutes.


LABEL REQUIREMENTS UNDER FIFRA
Each registered pesticide product, whether general or restricted use, contains brief instructions re-
garding storage and disposal in its labeling. The applicator must follow these instructions carefully and
ensure that employees follow them as well.'19


EPA RECOMMENDED PROCEDURES FOR STORAGE AND DISPOSAL
In addition to the mandatory procedures contained within the labeling of each pesticide product, EPA
has published recommended procedures for storage and disposal of pesticides and containers in the Code
of Federal Regulations.192 These procedures are not mandatory, but are recommended as extremely
useful guidelines for safe storage and disposal."9 The procedures recommended apply to both general and
restricted use pesticides, and address the needs of both private and commercial applicators.194 The
recommended procedures do not apply to the disposal of single containers of pesticides registered for use
in the home and garden, which may be disposed of during municipal waste collection if wrapped according
to recommendations.195 Nor do they apply to single containers used on farms and ranches which may be
disposed of by open-field burial with due regard for the protection of surface and subsurface waters.19"
Many states have, however, banned the burying of containers.
The EPA guidelines provide that in general, persons in possession of excess pesticides should either
store them for future use or attempt to return them to the manufacturer for relabeling or reprocessing.
Only if these two options are unavailable should the user attempt to dispose of them.197










guidelines detailed within this chapter is necessary to avoid contamination of water, soil or persons and

minimize exposure to legal liability. Local regulations may be more stringent.


EXCEPTIONS FOR SMALL GENERATORS OF HAZARDOUS WASTES

Notwithstanding the farmer exception, a person disposing of pesticide containers or residues is ex-

empt from the hazardous waste regulations if he generates less than 1 kilogram (2.2 lbs.) per month of
the hazardous wastes described in parts 261.31-33 of the EPA's regulations, or 100 kilograms (220 lbs.)

of residue or contaminated debris resulting from cleanup or a spill.220 Since it would not take long to

generate 2.2 lbs. of waste chemical products, residues or unrinsed containers, the small quantity gen-
erators exemption offers little protection for a farmer who ignores the triple rinse provisions of the farmer

exemption.

Even if an applicator falls within the small quantity generator exception, he must still make a de-
termination of the hazardous nature of the waste as per 40 C.F.R. 262.11, and follow certain procedures

for storage and disposal. Hazardous waste that is being legitimately recycled, reused, or reclaimed is not
subject to the hazardous waste management regulations.221


SPECIAL REGULATIONS FOR COMMERCIAL APPLICATORS AND
OPERATORS OF STORAGE, TREATMENT, OR DISPOSAL FACILITIES

Commercial applicators are hazardous waste generators under the regulations whenever they

generate or discard commercial chemical products, containers, or spill residues as described in 40 C.F.R.

part 261.33 or any other hazardous waste as defined in the regulations. The exemption for farmers who

use pesticides on their own land does not apply to commercial applicators. Nor are commercial appli-
cators likely to qualify for the small quantity generator exemption. Commercial applicators storing or

disposing of pesticides or containers are, therefore, subject to the standards for generators, transporters,

and disposers of hazardous waste listed in 40 C.F.R. 122-4, and 262-7.
The major elements of RCRA hazardous waste provisions are 1) notification, 2) permitting, and 3)
standards for handling hazardous wastes. Section 6930 of RCRA requires any person who generates or

transports hazardous wastes, or owns or operates a facility for the storage, treatment, or disposal of

hazardous waste, to notify the EPA of the identity of the hazardous waste involved and the nature of the

activity. Transporting, storing, or disposing of hazardous waste before filing the notice is unlawful.222










Additionally, each person owning or operating a facility for the storage, treatment or disposal of hazard-
ous wastes must have a permit from the EPA. The permitting procedures are published at 40 C.F.R. parts
122-4.
Extensive regulations regarding record-keeping and reporting, storage, transportation and disposal,
both off-site and on-site, are contained in 40 C.F.R. parts 262-4. A major feature of these regulations is

a manifest system that allows the EPA to follow hazardous waste from generator, to transporter, to

disposer. Upon request of the EPA or designated state officials, the generator must permit the officials
to inspect the facility, inspect and reproduce records, and inspect and obtain samples of wastes, con-
tainers, or labeling.223


PENALTIES FOR HAZARDOUS WASTE VIOLATIONS

When EPA determines that a person is in violation of any provisions of RCRA, the violator is first
notified.224 If the violations continue beyond 30 days after notification, EPA may commence a civil action
for appropriate relief, including a temporary or permanent injunction, or the agency may issue an order
requiring compliance within a specified time.225 If the violator fails to comply within the specified time,

he will be liable for a civil penalty of not more than $25,000 per violation for each day of continued non-

compliance and the EPA or state official may revoke or suspend any permit issued to the violator.226 Upon
suspension or revocation of a permit, the violator may request a public hearing.227 In determining the
amount of the civil penalty, the EPA considers the seriousness of the violation, and any good faith efforts
to comply with the applicable requirements.228
Criminal penalties are imposed on any person who knowingly:
transports hazardous waste to a facility that does not have a permit,

treats, stores or disposes of any hazardous waste without having obtained a permit, or
makes any false statement or representation on any application, label, manifest, record, report,
permit, or document required by the statute.229
Upon conviction, the violator is subject to a fine of not more than $25,000 for each day that each

violation continues, to a year in prison, or both. Subsequent violations are punishable by fines of not more
than $50,000 a day, two years imprisonment, or both.230
Unlike FIFRA, RCRA allows citizen suits for violations of the statute. The plaintiff must notify the









RCRA requires that the state or local government be notified of the existence of an underground
storage tank.257 Furthermore, state and local authorities must also be notified of any leaks. While RCRA
provides the basis for the regulation of underground storage tanks, state and local governments can and
do regulate these tanks as well. The more specific state and local regulations are more stringent than
the minimum RCRA requirements, thus they should always be consulted.










CHAPTER IV


AGRICULTURAL CHEMICALS AND WORKER SAFETY


FIFRA AND EPA REGULATIONS
Under FIFRA, the EPA has general authority to regulate pesticide use in order to minimize risks to
human health and the environment. This authority extends to the protection of farm workers exposed
to pesticides. Under FIFRA, all employers must comply with any pesticide labeling instructions con-
cerning worker safety or be subject to penalties. Labels may include, for example, instructions requiring
the wearing of protective clothing, handling instructions, and instructions setting a period of time before
workers are allowed to re-enter fields after the application of pesticides.258
Employers should also read EPA's proposed regulations governing the use of and exposure to pesti-
cides.259 The proposed rule sets forth minimum standards for the protection of farm workers and pesticide
handlers that must be followed. The proposed regulations include standards requiring oral warnings and
posting of areas where dangerous pesticides have been used, training for all handlers and early re-entry
workers, personal protective equipment, emergency transportation, and decontamination equipment.
The proposed regulations also contain special standards for greenhouses and nurseries. The EPAintends
to require manufacturers of chemicals to place the regulation's applicable worker protection standards
on the product's label before registration of the pesticide will be allowed.2o
The EPA proposed regulations would hold the landowner (or lessee) ultimately responsible for
compliance with the worker safety standards. This means that the landowner must ensure compliance
by all employees and by all independent contractors working on the property. Contractors and employees
may also be held responsible for failure to follow the regulations.261


THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA)
The federal government also regulates farm employee safety under the Occupational Safety and Health
Act (OSHA).262 Under OSHA, the states may develop enforcement plans which, if approved, become the
enforcement mechanisms of the Act.263 OSHA is effective in all states,264 and is intended to prevent harm
rather than compensate for injuries.265 OSHA does not require that a workplace be absolutely safe, but
that employers take reasonable steps to assure employee safety and prevent avoidable accidents.266










Have in their possession "material safety data sheets" for each hazardous chemical which they

use.289 Manufacturers and importers of hazardous chemicals are required to develop these sheets

for each chemical that they sell and provide them to their distributors and customers. Material

safety data sheets are required to contain descriptions of the chemical, all hazards associated

with it, proper procedures for using the chemical, instructions for emergency measures, and the
manufacturer or importer's address and telephone number for further information about either

the chemical or emergency procedures. The material safety data sheets must be readily acces-

sible to employees.

Provide employees with information and training on hazardous chemicals when they are hired

or reassigned, and when a new chemical is introduced.290 Employers must provide employees with,
at least, information about the hazard communication standard and its requirements,291 any

operations conducted where hazardous chemicals are present, and the location and availability
of the written communications program and the material safety data sheets and how they are

used. Training must include, at least, methods for detecting the release of hazardous chemicals
(such as the appearance or odor of the chemical), the physical and health hazards of the chemical

to the workers, measures that the workers should take to protect themselves from hazards,
including techniques for proper use, emergency measures, and the use of protective equipment

or clothing.292
The Occupational Safety and Health Administration suggests that employees be included in the
process of designing both the written hazard communication program and training programs to take

advantage of employee experience and to help ensure a better understanding by everyone of the haz-

ardous chemicals used and respect for their dangers. Further, the Occupational Safety and Health

Administration provides a free on-site consultation service to help recognize hazards and help design

hazard control and communication programs. Information about the consulting service is available from
the Administration's regional offices.


RECORDKEEPING

Farm employers (except those with 10 or less employees) must make and preserve records of their

activities relating to OSHA.293 These records must be available to OSHA enforcement officials upon
request.294 Basically, records must contain information on any farm-related accidents (other than minor










injuries not requiring medical treatment), loss of consciousness, restriction of work, or transfer to

anotherjob.295 Causes and preventative steps (if any) must also be incorporated within the records. Other

requirements include an annual summary, supplementary records and the reporting of fatality or

multiple hospitalization accidents.296 Additionally, farm employers may be required to maintain records

of farm employee exposure to potentially toxic materials, which may include pesticides, or to harmful

physical agents. Employers must also have on hand the materials required by the hazard communication

standard.297

Farm employers must report within 48 hours the occurrence of fatal accidents or those involving the

hospitalization of five or more employees.298 "Small" employers (those with ten or less employees) must

maintain a log of occupational injuries and illnesses and also must report within 48 hours fatal accidents

and accidents involving the hospitalization of five or more employees.299 This is the only recordkeeping

requirement with which "small" employers must comply.300


INSPECTIONS AND INVESTIGATIONS
To ensure compliance with OSHA, the Secretary of Labor, his representatives, or state enforcement

officials are authorized to enter farms and inspect and investigate farming operations.301 These officials

may write citations for observed violations of OSHA.302

The right of entry and inspection is not, however, unlimited. The entry and inspection must be rea-

sonable with respect to time and place.303 Courts have stated that administrative enforcement officials

must have compulsory process, for example, a search warrant or inspection warrant for an entry to be
"reasonable."304

Employees can request inspection by giving notice to the OSHA enforcement authorities.306 Notice of

this request must be given to the employer at or before inspection.306 A federal district court case has held

that,
... in certain situations employee complaints may be so pervasive as to justify issuance of a search
warrant, but a search warrant issued based on complaints relating to relatively minor alleged violations
[of OSHA] would violate the employer's constitutional rights against unlawful searches.307

Federal regulations outline procedures which enforcement officials must follow in deciding whether

or not to act on an employee complaint.










PART II: COMMON LAW
CHAPTER I


COMMON LAW STANDARDS OF CONDUCT
AND THEORIES OF LIABILITY1


The common law of torts imposes society-wide standards of behavior designed to deter wrongful,
negligent or unreasonable dangerous conduct and compensate victims of such conduct. A tort is an act
or omission that is deemed blameworthy, because the act or omission is either careless, shortsighted,
unreasonably dangerous, or against a law or a public policy. Unlike statutes and regulations, which often
provide specific, technical guidelines on how agricultural chemicals should be used, the common law is
much broader, addressing the reasonableness of all aspects of the use of agricultural chemicals. This
section is designed to familiarize users of agricultural chemicals with the basics of common law liability
for misuse of agricultural chemicals.


THE LEGAL PROCESS
A person injured in some way by the acts or omissions of another must file a lawsuit in order to be
awarded compensation by a court. The person filing such a lawsuit is called the plaintiff. The plaintiff
must do several things before a court will consider the lawsuit. First, he must allege that the person being
sued (the defendant) harmed him in some manner. The lawsuit must also state a principle of law and
allege that the defendant violated that principle. The principle may be one or more of the common law
theories of liability that will be discussed in greater depth below or may be a statute which states that
the defendant's conduct was unlawful.2 The lawsuit must also allege facts which, if proven, would
conclusively demonstrate that the defendant acted wrongfully or unlawfully and that the plaintiff
suffered harm as a result. The plaintiff will win if he can convince the judge or the jury of the truth of
these essential facts. In civil cases the standard of proof will be whether the facts necessary to support
a recovery were proven by a preponderance of the evidence presented in court.
Following are the common law theories of liability most relevant to users of agricultural chemicals.
The statements below are generalizations about the law, and the reader should understand that the law
may differ from state to state. Any questions about the law in the reader's jurisdiction and any doubts
that the reader may have as to how the law affects his operations should be addressed to an attorney.









NEGLIGENCE
Negligence is the theory most widely used to impose liability for unintentional acts. Any unintentional
act or omission that creates an unreasonable risk of harm to another constitutes negligence, and if the
act results in harm to another, a court will award damages to the injured party.


ELEMENTS OF THE CLAIM

The plaintiff must prove four things to prevail in a lawsuit: duty, breach, causation and damages.
Duty: First, the plaintiff must show that the defendant owes a duty of care toward the plaintiff. A duty
of care exists whenever the defendant ought to foresee that there is a risk of harm to another person or
to property. For example, if a reasonable person could foresee that the use of an agricultural chemical

could result in damage to a neighbor's crops, then the user has a duty to avoid the risk by taking all
reasonable precautions.
Breach: When a duty of care exists, the defendant must act reasonably in light of the foreseeable risk.
If the defendant does not act reasonably, the duty of care is breached. The test to determine whether the
defendant's actions were a breach of an existing duty is to ask what a reasonable, prudent person would
have done under the circumstances. This determination is made by a jury, or, if the case is tried without
a jury, by the judge. In the above example, if a reasonable person would have acted to prevent the risk
in the pesticide's use, then the defendant breached his duty by failing to do so.
The reasonable person standard becomes more strict if the defendant has special expertise. For ex-
ample, a plant pathologist recommending a pesticide might be held to the standard of care of a reasonably
prudent plant pathologist of similar training and in a similar locality. The determination of how a similar
expert might act under the circumstances is still made by the jury or by the judge; however, in this
instance, the jury is aided by expert testimony from others in the field.
Cause: To recover damages from the defendant in a negligence action, the plaintiff must have suffered
some actual injury to person or property that was caused by the defendant's breach of the duty to exercise
reasonable care. Often causation is a simple determination. An example of an easy case would be where
the pilot of a crop dusting aircraft is observed treating the wrong field. The more remote the harm from
the negligent act, the more difficult it is to prove causation. Cases that involve tracing chemical
pollutants to their source often present highly technical causation problems.
Another causation issue arises when there is more than one contributing cause to an injury. The key

to whether liability will be imposed in these circumstances is foreseeability. If harm is readily foreseeable










from the defendant's act, but there are other intervening acts contributing to the injury, the defendant
is still liable if the intervening acts themselves are foreseeable. However, the original act must still

directly contribute to the injury. For example, if a farmer knows or reasonably should be expected to know

that a certain chemical is unreasonably dangerous to neighboring crops and is likely to drift if applied

by air, the farmer will probably not be relieved of liability if a contractor negligently applied the pesticide,

compounding the damage. The damage was foreseeable to the farmer. In this situation, the plaintiff could
sue both the farmer and the contractor for their respective responsibility for the damage, or might sue

either one individually for the entire amount.3

Damages: Finally, the plaintiff must prove actual damages occurred as a result of the defendant's acts

or omissions. In other words, if someone's admittedly negligent behavior harms no one, then there is no

claim for negligence. These concepts of duty of care, breach of duty, causation, and damages will be

developed further in following chapters discussing specific cases.


NEGLIGENCE PER SE
In a case where an action that results in a lawsuit also violates a statute, the court will usually regard

the violation as evidence of wrongful conduct constituting negligence in itself. This doctrine is known as
negligence per se. Negligence per se is applied, however, only if the damage complained of in the lawsuit
is of the type intended to be prevented by the statute and the plaintiff is a member of the class of persons

intended to be protected.

The usual rationale for applying the doctrine of negligence per se is that courts will view the statute

as setting a standard of conduct for those affected, and deviation from the standard is viewed as a
negligent act in itself. The doctrine of negligence per se will thus relieve the plaintiff of having to offer
specific evidence of negligence if a violation of a statute can be shown.
The converse, however, is not true. Evidence of compliance with a statute or evidence that no laws were

broken is not proof that the defendant was not negligent unless the statute so provides. Thus, if you

violate the statute, you will be deemed negligent, whereas if you follow it, you may still be deemed
negligent. In the heavily regulated field of agricultural chemical use, farmers and applicators seeking
to avoid liability must therefore be certain that no statutes are being violated, and further, must not
believe that compliance with regulations relieves them from taking further precautionary steps when

warranted by the circumstances.










DEFENSES
Several defenses are available to a defendant in a negligence suit. In most states, if the defendant can
establish that the plaintiff was also negligent and that his negligence contributed to the plaintiffs harm,
then the plaintiffs award will be reduced by the degree of the plaintiffs negligence. This doctrine is
known as comparative negligence.
Similarly, if the defendant can show that a third person's negligence contributed to the plaintiffs injury,
the defendant should seek to join the third person in the lawsuit. In most states, the original defendant's
liability will be reduced by the percentage by which the third person's negligence contributed to the
plaintiffs harm.
The defense of assumption of risk is available in all states. The defendant may show that the plaintiff
knew of the risks and voluntarily went ahead with the act. An example of assumption of risk might be
where a seller of a pesticide application device can establish that the plaintiff knew and understood the
risks inherent in an application device yet used that device, causing injury to himself or others.


DAMAGES
Those injured by negligent acts are entitled to recover not only actual damages the cost to the
plaintiff of the harm actually suffered but also damages for lost wages, pain and suffering, loss of the
companionship of a spouse, etc. Punitive damages are available if the defendant acted willfully or in
reckless disregard of the plaintiffs interests.


NEGLIGENCE AS AN ELEMENT OF OTHER CAUSES OF ACTION
Negligence is also an element in other types of lawsuits. For example, courts will often say that the
plaintiff must prove negligence in an unintentional trespass action. This aspect of negligence is discussed
below.


RESPONDEAT SUPERIOR
The legal doctrine ofrespondeat superior holds an employer liable for the torts of employees conducted
within the scope of employment.4 Generally, an employee's activities are within the scope of employment
if the actions are of the type which the employee is hired to perform, occur when and where the employee
is supposed to be working, and the purpose of which are to benefit the employer.5 An important exception










to this doctrine is that as a general rule, the employer is not responsible for the torts of an independent

contractor. An exception to this exception, however, is that the person who hires an independent

contractor to perform an inherently dangerous activity may still be held liable. Numerous courts have
held that crop dusting is such an "inherently dangerous" activity.6


STRICT LIABILITY
Strict liability imposes the highest standard of care, holding persons for damages resulting from their

actions without proof of fault. Unlike negligence, in a strict liability suit the court will not consider
whether the defendant acted reasonably, only whether the activity caused the harm complained of. The
basis of strict liability is a policy decision by the courts or by the legislature that the person conducting

the dangerous activity should be responsible for harm caused to innocent persons by that activity,

regardless of fault.

Courts of most states will apply strict liability if the activity being conducted by the defendant is
"abnormally dangerous" or "ultra-hazardous." The most widely accepted definition of an "abnormally

dangerous" activity is that of the American Law Institute's Restatement of the Law of Torts, 2d. The
Restatement sets forth a multi-factor test for courts to apply:

In determining whether an activity is abnormally dangerous, the following factors are to be consid-
ered:

(a) existence of a high degree of risk of some harm to the person, land, or chattels of others;
(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.7
The common law of the various states differs with respect to which activities are considered
abnormally dangerous and subject to strict liability. Generally, generators, stores, and transporters of

hazardous wastes are strictly liable for injury resulting from handling the waste. In Oklahoma,

Washington and Oregon, aerial application of pesticides and herbicides is subject to strict liability. In

Louisiana, courts will apply strict liability to both aerial and ground application.

An important limitation on the doctrine of strict liability is that the defendant is liable only for injury










caused by those aspects of the activity that are abnormally dangerous. Therefore, a person engaged in
an abnormally dangerous activity will not be strictly liable for any and all harm resulting from the
operation, but only those injuries caused by the danger inherent in the activity. For example, a trans-
porter of hazardous waste would not be held strictly liable for striking a pedestrian, but might be for
damage caused by a spill.
Strict liability may be imposed in other ways. The legislature, in regulating an activity, may decide

that strict liability is warranted in its enforcement. For example, some state groundwater pollution

regulations provide that a polluter is subject to penalties whether or not the polluter was at fault in any
way. In a lawsuit for damages arising from the same incident, the court may look at the violation of the
regulation as negligence per se, and in effect hold the polluter strictly liable.8 Strict liability can be also
imposed in nuisance and trespass cases, as discussed below.


TRESPASS
Trespass has traditionally been the most widely used theory for recovery for damage to property.
Trespass is an unauthorized entry onto the property of another by any physical, tangible agency. This
can include fine particulate matter, liquid droplets, even gases. The courts have divided trespass into two
categories, intentional and unintentional.


INTENTIONAL TRESPASS
If the authorized entry is intentional, the defendant is liable regardless of whether the trespass ac-

tually caused any harm and almost regardless of the defendant's reason or justification for the entry. The
plaintiff is entitled to at least nominal monetary damages for intentional trespass and may obtain an
injunction against any threatened or continuing trespass.
Agricultural chemical use could result in liability for trespass if the chemicals, their residues, or

containers become deposited on another's land through dumping, drift, runoff, incineration or other means.
To constitute intentional trespass, it is not necessary for the defendant to intend that the chemical enter
onto the plaintiffs land, only that the actions that result in the trespass are intentional. For example,
intentional disposal of chemicals or their containers in a manner that eventually results in trespass
constitutes intentional trespass.










UNINTENTIONAL TRESPASS

If the trespass is unintentional the defendant is liable only for harm caused by negligent or reckless

acts or in some cases by abnormally dangerous activities. If the defendant is involved in an abnormally
dangerous activity, the courts of many states will apply strict liability and the plaintiff will not be
required to prove negligence in order to recover.9
Examples of unintentional trespass involving agricultural chemicals would be where theft, vandal-

ism, or a natural disaster cause chemicals to become deposited on another's land. In this case, the de-

fendant will be liable only ifhe failed to take reasonable precautions to guard against such an occurrence.
However, if the courts of the states have characterized pesticide handling as an abnormally dangerous
activity, then the defendant would be liable for the trespass regardless of whether the defendant was at
fault in any way.


NUISANCE
While trespass involves violation of another's property rights, nuisance consists of use of one's own

property in a manner that causes injury to others. Nuisance has traditionally been the most widely used
theory in environmental pollution actions. Nuisances are categorized as either public or private, de-
pending on whether the nuisance affects the rights of the public or the rights of an individual exclusively.

The practical difference between public and private nuisances is that public nuisance actions can be

brought by a public official on behalf of the public at large and that certain defenses, such as delay on
the part of the plaintiff in bringing the action, are not available to the defendant.10 In many states, certain
types of public nuisances are considered criminal acts.
An example ofa public nuisance involving agricultural chemicals would be where storage, use, or disposal

has a significant effect upon the water quality of a public water source, thereby interfering with the public

right to safe drinking water. A public official or individuals joined in a class action would be able to obtain
an injunction against the activity creating the nuisance. An adjacent landowner may recover damages
from the defendant if, in addition to the interference with his right to safe drinking water, the landowner
suffered the loss of livestock from the defendant's actions.


ELEMENTS OF A NUISANCE ACTION
A private nuisance is a substantial interference with another's use and enjoyment of land. No physical










invasion is required as in trespass, only a substantial interference with the possessor's enjoyment of land,
such as exposing the landowner to undue noise or an unsightly appearance. To constitute private
nuisance, the invasion must be wrongful. An invasion may be wrongful in two ways. First, it may be

intentional and unreasonable. The unreasonable element, absent in the more strict trespass action,
allows the courts to balance the social value of the offending activity against injury to the plaintiff.

Second, the invasion may be wrongful because it results from negligence, recklessness, or abnormally
dangerous activities. However, in many states the requirement that the nuisance must be wrongful is
not strictly followed. Many courts will find a nuisance from the mere fact that damage occurred.

A possessor of land who has suffered a substantial interference with his use and enjoyment may obtain
both monetary damages and an injunction against the defendant. In determining a remedy, the court
may consider both the value of the offending activity to society and the gravity of the interests that have
been invaded. Because this balancing test allows a court to consider the worth of the defendant's activity,
a plaintiff will normally prefer to bring a trespass action. Nuisance actions are usually brought in cases
where a trespassory physical entry cannot be established.
For example, ifimproper pesticide use resulted in potentially dangerous odors being carried onto adjacent
property, the possessor could sue in trespass charging that the odors, which consist of molecules of the
odor-producing substance, constitute a physical entry. If there is any doubt that the court will consider
the odor a physical entry, the plaintiff will also sue for a private nuisance, charging that the odors
constitute an invasion of the plaintiffs right to use and enjoyment of the land. In a nuisance case, the

court will also weigh the reasonableness of the defendant's spraying. Again, however, this rule will differ
if the court determines that the defendant is engaged in an abnormally dangerous activity or the
condition causing the nuisance is abnormally dangerous."


RIGHT-TO-FARM LAWS
In almost all states,12 limited protection from nuisance actions is given to farmers by state "right-to-
farm" statutes. The effect of most of these statutes is to allow farmers to assert as a defense to a nuisance
action the fact that the farm was in operation and the conditions complained about were in existence prior
to the plaintiffs coming to the area. This defense, however, is limited. Most right-to-farm statutes have
no effect on the enforceability of federal or state anti-pollution laws or are conditional on compliance with

those laws. In states where the defense is conditional on compliance with anti-pollution laws, the










existence of a law forbidding air or water pollution will render the defense inapplicable in cases where
the nuisance consists of air or water pollution. Further, the defense is limited to nuisance actions and

has no effect on other causes of action such as trespass or negligence. It is important to recognize that
the statutes are directed primarily as a defense to complaints about odor, noise and other common
annoyances resulting from the conduct of agricultural activities, and have little or no application in cases

where actual harm or pollution is caused by agricultural chemicals.


INJUNCTIONS AND OTHER FORMS OF EQUITABLE RELIEF
Equitable relief means a remedy imposed by a court to compensate a plaintiff when money damages

are inappropriate or insufficient. Usually equitable relief will consist of an order to the defendant to stop

an activity an injunction although it may also consist of an order to undertake an activity to correct

or compensate for a previous harm. Equitable relief is most common in nuisance and trespass actions.
Before a court will grant equitable relief, it must determine that money damages are inadequate or
unavailable to compensate the plaintiff for the type of harm suffered. Situations where money damages
may be inadequate include where the nuisance will cause irreparable harm if continued, or if there is

cause to believe that the harm will continue or reoccur after the award of money damages, resulting in
future lawsuits.
In order for a court to grant injunctive relief the plaintiff must show that the defendant's activity is
unreasonable at the time and place that the injunction is sought. In making this determination a court
will balance the hardship that granting an injunction would have on the defendant, along with broader

societal issues such as the value of the activity to the community or the harm posed by the activity to the
community." Thus, for example, an ongoing agricultural operation that pollutes groundwater might be

shut down by a court if it finds that the harm that it causes outweighs the potential hardships on the
defendant.
Factors that could be considered in weighing the hardships on the defendant include whether the land
has value for other uses and the extent of the defendant's investment. A court, however, will not balance
the hardships if it determines that the defendant's actions were willful or against an assertion of right
by the plaintiff. An example of an action against an assertion of right would be where the plaintiff advises
the defendant that his activities must not trespass on the plaintiffs property yet the trespass neverthe-
less occurs.









STRICT PRODUCTS LIABILITY
Other causes of action exist to enable a person harmed by an agricultural chemical to recover from the
manufacturer, distributors, or sellers of the product. Although a manufacturer can always be sued for
negligent acts, American courts, in order to protect consumers, have adopted other theories allowing
recovery for defective or ineffective products without the need to demonstrate a specific negligent act. The
doctrine of strict products liability is the most widely used.

The courts ofmost states have adopted the rule of strict product liability set forth by the American Law
Institute's Restatement of the Law of Torts, 2d.14 Under the restatement, if a product is "defective" and
"unreasonably dangerous," a party injured by the product can recover without showing proof of negli-

gence. In actions for damages where a farm chemical has caused physical harm, the case often turns on

the meaning of the term "defective" and "unreasonably dangerous." The American Law Institute's com-
ments to the Restatement of the Law of Torts, 2d15 state that a product is defective if it is one that is
"unreasonably dangerous" to the consumer at the time that it leaves the seller's hand. The comments go

on to say that in order to prevent the product from being unreasonably dangerous, "the seller may be
required to give directions or warning, on the container, as to its use."16 The comment further states
that manufacturers, distributors or sellers have a duty to warn of dangerous ingredients whose danger
is not generally known if they know or reasonably should know of its presence in the product and of its

dangerous characteristics.17
The theory of strict products liability is similar to the theory of negligence in that there is a duty to
warn against foreseeable dangers, and the injured party has the burden of proving that the seller was,
in effect, negligent in failing to warn. The practical difference is that the defense that the user of an
agricultural chemical was also negligent is not available to the defendant. The theory of strict products

liability has often been used in cases where agricultural chemicals damage crops or are ineffective,
causing the crops to be lost or reduced.


BREACH OF WARRANTY
An alternative to strict products liability in cases where agricultural chemicals are harmful to crops
or ineffective is an action for breach of warranty. An action for breach of warranty is based on the failure
of a product to perform as promised. As such, it is an action for breach of contract rather than an action
based on a civil wrong or "tort," although a wrongful act may be involved. Recovery is limited to damage









to the product itself, lost profit, and consequential economic losses arising from the failure of the product
to perform. Further, every person in the marketing chain from the manufacturer to the ultimate seller
is liable, whether or not negligence is proven against them.










CHAPTER II


LIABILITY FOR DAMAGE CAUSED BY
AGRICULTURAL CHEMICAL DRIFT


Aerial application of pesticides, while easily the most efficient and effective available manner of ap-
plying chemicals to large areas, is also particularly dangerous to surrounding property and crops. This
is so for two reasons: 1) chemicals which are beneficial when applied to one crop may be poisonous to
another crop, animals or human beings, and 2) chemicals in spray or dust form, deposited in the air, have
a tendency to drift and land in unintended locations. When present in combination, these factors account
for most of the damage and litigation arising from crop dusting operations.
Although courts have recognized that crop dusting is a necessary and beneficial activity, they have
also recognized its high potential for causing damage. Courts have imposed liability on applicators and
landowners under theories of trespass, negligence and strict liability.
The following precautions have been recommended to avoid damage through the aerial application of
dangerous chemicals:
The label instructions must be followed.'" That is the law.
The output level of the application equipment should be checked frequently to prevent over
application or uneven application.19
The applicator must have all protective clothing and equipment suggested by the label.20
Times or intervals for application and interval between application and harvesting or feeding
specified by the label should be followed closely.21
No more than the recommended amount of pesticides should be applied.22
Pesticides must not be sprayed on a breezy day (the pesticide label should specify maximum wind
speed for safe application).23
Insecticides must not be used when bees or other pollinating insects are visiting crops being
treated.24
The applicator should make a careful aerial survey of the area to be sprayed immediately prior
to application to ensure that no persons are in or very near the area. Pesticides should be applied
so as to minimize the possibility of drift, i.e. using buffer zones, checking wind direction, ad -










justing droplet size, and being certain to cut off spray before reaching the boundaries of the area
to be sprayed.25

All neighbors should be given 48 hours notice of intent to spray and of chemicals to be used.26
Workers must not be allowed to enter treated fields prior to the re-entry time specified on the
label or by state law.27


STRICT LIABILITY
In four states Louisiana, Oklahoma, Oregon, and Washington courts have labeled crop dusting
an "ultrahazardous" or "abnormally dangerous" activity, and imposed strict liability for damage done
without requiring proof of fault.28
Louisiana, applying a provision of its civil code, was the first state to impose strict liability for damages
caused by the aerial application of pesticides. In Gottreax v. Gary,29 the defendant sprayed his rice crop

with 2,4-D. The herbicide drifted onto the plaintiffs cotton and pea crops located over three miles away
and destroyed them. The court recognized the necessity of applying pesticides, but held that the plaintiff
could not be unreasonably inconvenienced or denied the right to enjoy his property. The court summed
up the effect of the application of strict liability:
Negligence of fault, in these instances, is not a requisite to liability, irrespective of the fact that
the activities resulting in damages are conducted with... reasonable care and in accordance
with modern and accepted methods.30
The Washington State Supreme Court imposed strict liability on crop spraying operations in Langan
v. Valicopters.31 In this case the plaintiffs were organic farmers, and the defendant helicopter operator
was spraying the neighboring farm with the pesticides Thiodan and Guthion. The plaintiffs sought damages
for pesticides which drifted onto their crop of organically grown vegetables, rendering them unsalable
as certified organic produce. Plaintiffs proceeded to destroy their crop, and filed a claim for full damages.
In upholding a verdict in the plaintiffs favor, the court applied the test for imposition of strict liability

suggested by the Restatement of Torts, 2d,32 and concluded that crop spraying was an abnormally
dangerous activity, justifying the imposition of strict liability.
In reaching this conclusion, the court stressed that there was no proof to suggest that it is possible to
eliminate the risk of drift by the exercise of reasonable care. The court added that while crop dusting was
prevalent in the area, it was carried out by a relatively small number of people. In justifying its decision
to impose strict liability, the court states that "useful but dangerous activities must pay their own way."33










The Oregon Supreme Court, in Loe v. Lenhardt,34 imposed strict liability in an unintentional trespass
suit, finding that there was no need to prove fault or negligence where the defendants were engaged in
an "extrahazardous" activity. There, defendants were using a mixture of dinitro and diesel oil as an
herbicide. The spray drifted, having, in the court's words, a "swift and drastic effect" on the plaintiffs

crops. The court, noting "the high degree of risk inherent in the spraying of agricultural chemicals from
aircraft" determined that strict liability should attach to the activity.35 The court stated the usual jus-
tification for the imposition of strict liability rather than a negligence standard: "The element of fault,
if it can be called that, lies in the deliberate choice by the defendant to inflict a high degree of risk upon
his neighbor, even though utmost care is observed in doing so."36


NEGLIGENCE
Other states which have considered cases involving damage caused by pesticide drift have applied a
negligence standard, both in negligence actions and unintentional trespass actions. A negligence
standard requires proof of fault before a plaintiff can recover. However, users of agricultural chemicals
should be warned that courts have been willing to assign liability on very slight evidence of negligence.

The courts of at least twelve states have held that the aerial application of pesticides is an "inherently
dangerous" activity, allowing a plaintiff seeking damages to recover upon a lesser showing of negligence
than if the activity which caused the harm were a less dangerous one. Often in these jurisdictions the
court will seemingly imply negligence from the fact that damage occurs, making this theory of recovery,

in essence, close to strict liability.

The Kansas case of Binder v. Perkins37 required such a higher standard of care, but also found a specific
instance of negligence. In this case the defendant's application of a 2,4-D/diesel oil mixture to a wheat
crop seriously damaged the plaintiffs alfalfa crop. There was no evidence of drift of the chemical onto the
plaintiffs crop, but instead, fumes from the treated field caused the damage.
The court found that the herbicide was carefully applied when the wind was blowing away from the
plaintiffs crop in order to minimize danger to the plaintiffs alfalfa. Nevertheless, the defendant was

negligent in applying an overly strong mixture which extended the evaporation time for the 2,4-D. When
the wind shifted, the fumes entered the plaintiffs field. The court characterized the handling of 2,4-D
as a hazardous activity, and stated that "a particular hazard calls for increased care; and the greater the
risk, the more imperative the obligation."38









There are other cases where negligence has clearly been established. These often involve situations
where chemicals were negligently released in excessive winds or over the wrong property, causing
damage to crops or livestock. In a few cases, crop dusters have been held liable for failure to properly clean
storage tanks or otherwise properly maintain their equipment where this failure resulted in damage
from misapplication. One case imposed liability where the pilot of the plane negligently doused a worker
with a pesticide, causing severe illness. Other more unusual cases have involved the death of a flagman
in the field struck by the landing gear of the airplane and the imposition of liability for the loss of turkeys
frightened to death by a low flying plane.


RESPECTIVE LIABILITY OF APPLICATORS AND LANDOWNERS
Almost all aerial applicators of agricultural chemicals in the United States are independent con-
tractors hired by farmers to treat their fields. This raises the issue of whether farmers should be liable
for damages caused by an independent applicator. The general rule is that a person is not liable for the
torts of an independent contractor. However, many states have held that because crop dusting or
spraying involves a heavy risk that damage to others may result, a farmer may not escape liability simply
by havingthe work done by an independent contractor. Thus, in Boroughs v. Joiner,39 the Alabama Supreme
Court ruled that a farmer who hired an aerial applicator to spray his crops with Endrin was liable in
damages for the resulting pollution of a nearby fish pond.
As the court in Boroughs points out, however, a farmer is generally not strictly liable for damage caused
by the aerial spraying of his property by an independent contractor: "The test is one of reasonableness.
Liability ... is imposed on the contractor for failure to exercise due care."40 Thus, while the applicator
is liable for his own negligence, the farmer also has a duty to take steps to ensure that third parties are
not harmed by the operation. Therefore, to reduce exposure to liability, a farmer should take precautions
such as warning the applicator of nearby crops, farm ponds, or livestock that could be damaged by the
chemical being applied, giving notice of intent to spray to all neighbors, supervising the spraying
operation to ensure that all application instructions on the label are followed closely, and inspecting the
applicator's equipment.41 Conversely, an applicator who fails to heed the instructions of the farmer hiring
him may lose the opportunity to hold the farmer jointly liable.
A different case is presented in those jurisdictions that have held aerial application of agricultural
chemicals to be an activity subject to strict liability. Because negligence is not necessary to impose li-
ability, the question arises as to which of two non-negligent actors should pay. In Loe v. Lenhardt, the










Oregon Supreme Court placed the burden on the landowner. The court noted that it was the farmer who
made the decision to apply pesticides by air, and thus it was the farmer who was responsible for exposing

his neighbors to the risk posed by an extrahazardous activity. This fact rendered the risk, in the court's

words, "non-delegable."42

Because the farmer may be held liable for the torts of the applicator, the farmer should choose the

applicator carefully. The farmer should also be certain to obtain sufficient liability insurance to cover

potential damage or ensure that the applicator has a policy that will indemnify the farmer for damages

caused.43









CHAPTER III


AGRICULTURAL CHEMICAL USE AND
LIABILITY FOR WATER POLLUTION


SIGNIFICANCE OF WATER POLLUTION TO AGRICULTURE
Recently, protection of both groundwater and surface water has received a great deal of attention as
knowledge of the scope of growing contamination has increased.
The United States relies on groundwater for more than half of its drinking water and for more than
a quarter of its total fresh water needs.4 The Environmental Protection Agency estimated that 1% of the
nation's groundwater supply is already contaminated, and that the percentage of contaminated water
is rapidly increasing.45
Farmers generally rely heavily on groundwater for their own consumption as well as for irrigating
crops and watering livestock. Pollution of a well can endanger the health of the farmer and his family,
and subsequent tort liability can put him out of business. Groundwater pollution is also relevant to
farmers because the use of pesticides and fertilizers is increasingly being cited as a major source of
groundwater pollution. Thus, a farmer who pollutes his neighbor's well or contributes to the pollution
of a community's drinking water supply may be subject to heavy liability.
The misuse of agricultural chemicals can degrade groundwater in several ways. Irrigation back-flow
where chemicals are mixed with the irrigation water, can cause serious groundwater pollution, although
installation ofback-flow prevention equipment is an effective deterrent to this problem. Over-application
can cause excess chemicals to leach or percolate into the water table. Careful adherence to the pesticide's
label such as following proper dosage instructions can greatly reduce the likelihood of groundwater
contamination. However, there have been many instances where pesticides have been applied at labeled
rates and because of a combination of chemical properties, soil characteristics, geohydrology or manage-
ment practices, these pesticides have leached into groundwater. These factors must also be taken into
consideration to minimize the potential for groundwater contamination.
Where groundwater is interconnected with surface water, as is often the case, runoff and erosion can
cause groundwater pollution by agricultural chemicals.46 As nitrate is a highly soluble compound and can
leach into the groundwater, pollution from fertilizer use is also an increasing problem, particularly in









the Midwest.47 Careful adherence to local, state, and federal erosion control regulations and recom-

mendations can greatly reduce the chances ofgroundwater contamination as well as preserve soil quality

and fertility.

Improper disposal or cleaning of containers as well as mixing and loading ofpesticides in an area where

residues are likely to reach groundwater is another potential source of contamination. Some pesticide
product labels and some state statutes note the distances from well heads for safe mixing and loading

of pesticides. Again, close attention to labeling instructions and state statutes or local ordinances can

reduce or eliminate the potential to pollute groundwater.

Agricultural chemicals also have high potential for polluting surface water through accidents, erosion,

irrigation return flow and runoff. As with groundwater, a farmer can be held liable for surface water

pollution resulting from the use of agricultural chemicals. To help avoid surface well pollution, farmers

should consider pesticide and soil characteristics and site characteristics such as geohydrology and

climate. Best Management Practices developed by the states and by the Federal government pursuant

to the Federal Clean Water Act should be closely followed not only to avoid violating the Act, but also to

reduce the chance of tort liability for surface water pollution. Best Management Practices place a heavy

emphasis on erosion control, storm and irrigation water management and Integrated Pest Management

Techniques.48

The growing attention to ground and surface water is reflected in the attitudes of the courts and state

legislatures toward polluters. Violations ofwater protection laws and regulations increasingly lead to the
imposition of harsh legal doctrines, especially strict liability and negligence per se, against polluters.49
In states where strict liability is unavailable, a plaintiff may still find a cause of action in nuisance,
trespass or negligence. Also, users of agricultural chemicals are becoming increasingly subject to non-

point source pollution regulations, which many states are currently implementing to meet the re-

quirements of the Clean Water Act.50

This trend is also bolstered by an increasing number of state statutes which criminal penalties for
water pollution. For instance, a Hawaii statute allows the state to impose a fine for using pesticides in
a manner which allows them to reach a drinking water source."5 Also, a recent California law prohibits

the knowing discharge or release to a source of drinking water of a chemical known to cause cancer or

reproductive toxicity. California's list of chemicals includes many pesticide ingredients.52

The remainder of this chapter is devoted to legal principles of particular importance because of their

growing significance in the litigation of water pollution issues closely tied to agricultural chemicals.










NUISANCE
Traditionally, plaintiffs damaged by water pollution have brought actions under the law of nuisance.
Nuisance suits are often easier for plaintiffs to win, since they need not prove that the defendant took
any particular action to harm them, only that some offending condition exists because of the defendant,
and the offending condition is unreasonable. Actions for private and public nuisance may be distin-
guished by determining who is harmed by the pollution at issue.
A private nuisance action might arise, for example, where a plaintiffs private well is contaminated
by chemicals applied to the land of a neighboring farmer or group of farmers. The plaintiff in this action
must prove that the pollution has interfered with his right of enjoyment of his property and must also
prove that the interference was substantial. In addition, the plaintiff must convince the court that the
interference is unreasonable; that is, the harm suffered by the plaintiff outweighs the overall utility of
the defendant's conduct to society. In making this final determination, the court will take the nature of
the area and the nature of the action into account.

A public nuisance action, on the other hand, might follow if the chemicals contaminated a public water
supply. In this event, the plaintiff (often a state or local official), must show that the defendant is con-
ducting an activity which constitutes a substantial and unreasonable interference with a right common
to the general public rather than an individual right. In determining whether the activity is unreason-
able, the court must consider any statute or regulation relating to the activity, whether the activity is,
by nature, continuing, and whether the activity will have a permanent or long-lasting effect.


STRICT LIABILITY
In Branch v. Western Petroleum,53 the Utah Supreme Court upheld the application of strict liability
as grounds for recovery of damages caused by the pollution of groundwater with salt water used in
drilling operations. The court held that storing salt water brine in ponds where it could contaminate
groundwater was an "abnormally dangerous activity" and the imposition of strict liability was justified.54
Courts have also applied strict liability in cases involving seepage of mine wastes and leakage from oil
and gasoline pipelines and storage tanks."


JOINT AND SEVERAL LIABILITY
Because water, especially groundwater, has many sources and may be vulnerable to contamination
at many points, it may be difficult or impossible for a plaintiff to determine the origin of pollutants and,










consequently, difficult to determine in what degree each of several defendants is responsible for the harm

resulting from these pollutants.56 If the court applies the principle ofjoint and several liability, however,

each defendant may be held responsible for the entire damage if the plaintiff can show that defendant's

activities were a "substantial factor" in the creation of the condition that caused injury to the plaintiff.

The court may impose joint and several liability in two situations: 1) where defendants acted together
in the commission of a wrongful act, or 2) where the independent wrongful actions of the group produced

a single, indivisible harm.

In pollution action, then, the plaintiff might recover simply by showing that a defendant contributed

to the contamination, as illustrated by D. & W.Jones v. Collier.57 In this case, the defendants had sprayed

their crops with a pesticide which had poisoned the plaintiffs fish ponds, killing the fish. The court states
the general rule:
Where the separate and independent acts of several tortfeasors... combine to produce a single injury,
each is responsible for the entire result, even though his act alone, without the concurrence of the other
tort, would not have caused the injury; and it is not necessary that they be acting together or in concert
if their concurring torts occasioned the injury... Each tortfeasor is responsible for the entire injury..."

If the court finds more than one defendant jointly and severally liable for the plaintiffs injury, the
plaintiff may recover from one or all of them. If one of the defendants pays more than his rightful share

of the damages, he is entitled to contribution from the other defendants.


DAMAGES AVAILABLE TO PLAINTIFFS
ACTUAL DAMAGES

In tort suits, plaintiffs may recover an amount equal to the actual damage they suffered as a result
of the defendant's actions. In cases where a single, privately owned water source is permanently con-
taminated by a single polluter, determining the amount of damages is simply a matter of determining

the loss in value of the property as a result of the pollution.

This formula may be complicated by a number of variables, however, including situations where the
water supply for a great number of people is contaminated, where there are many possible sources for
the contamination, or where the plaintiff suffers physical harm as a result of the contamination. In fixing
the amount of actual damages, the court will look to such considerations as the nature and degree of the

contamination and the resulting harm, the proportional responsibility of each individual defendant, the










availability of measures to correct the contamination, and degree to which each defendant acted
intentionally or recklessly in creating the harm.


PUNITIVE DAMAGES
Several courts have allowed the recovery of punitive damage against defendants who knowingly
committed harmful pollution or whose conduct otherwise showed a blatant disregard for the rights of
others and the consequences of the pollution." In Miller v. Cudahy Company, Inc.,60 involving extensive
pollution of an aquifer, the court imposed an award of over $4 million in actual damages and $10 million

in punitive damages. The court gave the defendant the option to either clean the pollution or pay the
punitive damage award.61 Traditionally, the rule has been that defendants cannot force their insurance
companies to pay punitive damages and, therefore, must bear the burden themselves.


OTHER RELIEF

The courts may also impose other types of relief where appropriate. The court may issue injunctions,

for instance, to prevent a continuing nuisance or pollution.










PART I: CITATIONS

1. Pub. L. No. 61-152, 1-13, 36 Stat 335 (1910).
2. 7 U.S.C. 135 135y as amended by 7 U.S.C. 136 et seq.
3. 7 U.S.C. 136a (1988).
4. Id.
5. 7 U.S.C. 136(b) (1989).
6. Federal Environmental Pesticide Control Act, Pub. L. No. 92-516, 86 Stat 973 (1972).
7. 7 U.S.C. 136a(a) (1989).
8. 7 U.S.C. 136a(c)(1)(C) (1989).
9. 7 U.S.C. 136a(d) (1989).
10. 7 U.S.C. 136i(a)(1) (1989).
11. 7 U.S.C. 136i(a)(2) (1989).
12. 7 U.S.C. 136(e)(2) [private];(e)(3) [commercial].
13. 40 C.F.R. part 171 (1989).
14. 40 C.F.R. 171.5(b) (1989).
15. Id.
16. 40 C.F.R. 171.4(a) & (b) (1989).
17. 40 C.F.R. 171.4(b) (1989).
18. Fla. Admin. Code 5E-9.007 (1989).
19. 40 C.F.R. 171.4(c) (1989).
20. 40 C.F.R. 171.4(a) (1989).
21. Fla. Admin. Code 5E-9.010 (1989).
22. The F.A.A. regulations are codified at 14 C.F.R. part 137 et seq. (1989).
23. "Agricultural aircraft operations" are defined in the regulations as "the operation of an aircraft for the purpose
of(l) dispensing any economic poison, (2) dispensing any other substance intended for plant nourishment, soil
treatment, propagation of plant life, or pest control, or (3) engaging in dispensing activities directly affecting
agriculture, horticulture or forest preservation, but not including the dispensing of live insects."
14 C.F.R. 137.3 (1989).
24. 14 C.F.R. 137.15 (1989).
25. 14 C.F.R. 137.19(b)-(c) (1989).
26. 14 C.F.R. 137.35 (1989).
27. 14 C.F.R. 137.51 (1989).
28. 14 C.F.R. 137.51(b)(2) (1989). Notice to the public must be given by "some effective means, such as daily
newspapers, radio, television, or door-to-door notice."
29. 14 C.F.R. 137.19(b) (1989).
30. 14 C.F.R. 137.19(c) (1989).
31. 14 C.F.R. 137.19(e) (1989).
32. Id.
33. 14 C.F.R. 137.21 (1989).
34. 7 U.S.C. part 136 (1989).
35. 7 U.S.C. 136(p)(2) (1988).
36. 7 U.S.C, 136j(a)(2)(G) (1988).
37. See United States v. Carbon Farm Service, 444 F. Supp. 510, 516 (D.C. Cal, 1978), affd, 578 F. 2d 159.
38. 49 Fed. Reg. 37,960 (Sept. 26,1984). EPA's current labeling requirements are published in the Code of Federal
Regulations at 40 C.F.R. part 156. The EPA redesignated the labeling requirements as part 156 in May 1988.
53 Fed. Reg. 15,952 (May 3, 1988). The labeling requirements were previously designated at 40 C.F.R. part
162 (1987).
39. Id. see also 53 Fed Reg. 25,970 (July 8, 1988) "EPA proposed Worker Protection Standards for Agricultural
Pesticides" discussed below at pp. 53-54. The proposed worker protection standards include proposed labeling
requirements.
40. FIFRA Amendments, 401 (7 U.S.C. 136q) Public Law 100-532 (1988).
41. 7 U.S.C. 136q(b) (1988).










42. 7 U.S.C. 136q(b)(4)(D) (1988).
43. 7 U.S.C. 136m (1988); see also 7 U.S.C. 136d(c)(2) (1988).
44. 7 U.S.C. 136m(a)(4) (1988).
45. 7 U.S.C. 136m(a)(3) (1988).
46. 7 U.S.C. 1361(1988).
47. 7 U.S.C. 1361(a)(2) (1988).
48. Id.
49. Id.
50. Id.
51. 7 U.S.C. 1361(a)(3) (1989).
52. 7 U.S.C. 1361(a)(4) (1989).
53. Id.
54. 7 U.S.C. 1361(b)(4) (1988).
55. 7 U.S.C. 1361(b)(2) (1988).
56. Id.
57. 7 U.S.C. 1361(b)(4) (1988).
58. 7 U.S.C. 1361(a)(1) (1988).
59. 7 U.S.C. 1361(a)(3) (1988).
60. 7 U.S.C. 1361(a)(4) (1988).
61. 7 U.S.C. 136f (1988); 40 C.F.R. part 169 (1989).
62. 40 C.F.R. 169.3(a) (1989).
63. 7 U.S.C. 136g(a)(2) (1988).
64. 7 U.S.C. 136g(a)-(b) (1988).
65. Id.
66. 21 U.S.C. 301 et seq. (1988).
67. 21 U.S.C. 331(a) (1988).
68. 21 U.S.C. 346a(a)(1) (1988).
69. Id.
70. 21 U.S.C. 436a(c) (1987).
71. Id. See also the pesticide tolerances for agricultural chemicals listed at 40 C.F.R. part 180 (1989).
72. 21 U.S.C. 342 (1987).
73. 21 U.S.C. 331-334 (1987).
74. "Processing" is described in the Act as including canning, cooking, freezing, dehydrating, or milling.
7 U.S.C. 2(a) (1987).
75. Id.
76. See National Research Council, Regulating Pesticides in Food 28 (1987).
77. Id. at 25-27.
78. 21 U.S.C. 348(c)(3)(a) (1987).
79. Id.
80. See National Research Council, Regulating Pesticides in Food Chapter 2 (1987).
81. 21 U.S.C. 601 et seq. (1988).
82. 21 U.S.C. 451 et seq. (1988).
83. 21 U.S.C. 610 (1988) [Meat]; 21 U.S.C. 458 (1988) [Poultry].
84. 21 U.S.C. 601(m) [Meat]; 21 U.S.C. 453(g) [Poultry]. See also 9 C.F.R. 301.2(c). The USDA's inspection
regulations are published at 9 C.F.R. parts 300-390.
85. 7 U.S.C. 1551 et seq. (1988).
86. Id. at 1561(a)(3)-(4) (1988). According to the statutory definition, seeds are in interstate commerce not only
when they cross state lines but whenever they are introduced into the "current of commerce" usual for "the
transportation and/or merchandising ofseeds, whereby such seeds are sent from one state with the expectation
that they will end up in another." This means that seeds may be considered to be in interstate commerce, even
if they have never crossed state lines, if they are handled or transported in the manner usual for interstate
transportation of seeds. If, for example, a seed producer sells a lot of seeds to a wholesaler in the same state
and hires a commercial carrier to transport the seeds to a buyer by truck, the seeds have entered the interstate
"current of commerce" where they are delivered to the carrier for transportation. Mere transportation on a









public road may constitute interstate commerce.
87. See. eg., Katzenbach v. McClung, 379 U.S. 294 (1964), (Operation of a restaurant near an interstate highway
means food sold there is in interstate commerce.)
88. 7 U.S.C. part 1572 (1988).
89. 7 U.S.C. 1571(a) (1988).
90. 7 U.S.C. part 1562 (1988).
91. 7 U.S.C. 1573(a) (1988).
92. Id.
93. 7 U.S.C. 1573(b) (1988).
94. 7 U.S.C. 1573(b)(2)(a) (1988).
95. 7 U.S.C. 1573(b)(2)(c) (1988).
96. 7 U.S.C. 1596(b) (1988).
97. 7 U.S.C. 1596(a) (1988).
98. 7 U.S.C. 1561(23) (1988).
99. 7 U.S.C. 1571(i) (1988); 7 C.F.R. 201.7a (1989).
100. 7 U.S.C. 1572 (1988).
101. Id.
102. Id.
103. Id.
104. 7 C.F.R. 201.7(a) (1989).
105. 88 N.M. 74, 537 P.2d 682 (N.M.Ct. App. 1975), cert. denied, 88 N.M. 29, 536 P.2d 1085 (N.M. 1975).
106. Id. at 692.
107. 21 U.S.C. part 342 (1988).
108. Tolerance levels for individual pesticides are listed at 40 C.F.R. part 180 (1989).
109. 21 C.F.R. 2.25 (1989).
110. 15 U.S.C. 1261 et seq. (1988).
111. 16 U.S.C. 1531 et seq. (1989).
112. 16 U.S.C. 1538(a)(1)(B) (1989).
113. 16 U.S.C. 1532(19) (1989).
114. 50 C.F.R. 17.3 (1989).
115. Id.
116. The United States Fish and Wildlife Service listing of endangered species and their habitats is located at 50
C.F.R. 17.11-12 (1989).
117. See 49 Fed. Reg. 37,965 (1984).
118. 15 U.S.C. 1540(b)(1) [criminal]; 15) [ U.S.C. 1540(a)(1) (1989) [civil].
119. 16 U.S.C. 1540(g) (1989).
120. See Council on Environmental Quality, Integrated Pest Management (1979).
121. Id. at 51-53.
122. Id.
123. 7 U.S.C. 136i(c) (1989).
124. 33 U.S.C. 1251 et seq. (1988).
125. See Id., at 1251(a), (a)(1).
126. 33 U.S.C. 1341 1345 (1988).
127. 33 U.S.C. part 1319 (1988).
128. See Harl, Agricultural Law, 14.
129. 33 U.S.C. 1362(14) (1987).
130. Id.
131. Id.
132. 33 U.S.C. 1342(a)(1) (1988).
133. 33 U.S.C 1362(6) (1988).
134. 33 U.S.C. 1362(7) (1988) and 40 C.F.R. 122.2 (1987). See United States v. Phelps Dodge Corp., 391 F. Supp.
1181 (D. Ariz. 1975) and United States v. Riverside Bayview Homes, Inc., 106 S. Ct. 455.
135. 33 U.S.C. 1362(14) (1988).
136. For the EPA regulations governing these and other facilities see 40 C.F.R. parts 400-460 (1989).










137. 33 U.S.C. 1341 1345 (1988).
138. 40 C.F.R. 131.10 (1989).
139. 40 C.F.R. 131.11 (1989).
140. Id.
141. See generally 40 C.F.R. 125.1 et seq. (1989).
142. 40 C.F.R. 125.3(1) (1989).
143. 33 U.S.C. part 1318 (1988).
144. See generally 33 U.S.C. 1319 (1988).
145. 33 U.S.C. 1319(d) (1989).
146. 33 U.S.C. 1319(c) (1988).
147. 33 U.S.C. part 1365 (1988).
148. See Rogers, Environmental Law: Air and Water (West 1986); J. Battle, Environmental Law 213, Vol. 2.
149. 33 U.S.C. part 1329 (1989).
150. 33 U.S.C. 1329(a)(1) (1988).
151. 33 U.S.C. 1329(b)(2) (1988).
152. 33 U.S.C. 1344(d) (1988).
153. 33 U.S.C. 1344(f) (1988).
154. Id.
155. 33 U.S.C. 1344(f)(A)-(C) (1988).
156. 33 U.S.C. part 1268 (1988); 7 C.F.R. 634.14 (1988).
157. 7 C.F.R. 634.14 (1989).
158. Id.
159. 7 C.F.R. 634.27(b) (1989).
160. 7 C.F.R. 634.20 (1989).
161. 7 C.F.R. 634.24 (1989).
162. Id.
163. 42 U.S.C. 300fet seq. (1988).
164. 42 U.S.C. 300g-1 (1988).
165. See, e.g., National Resources Defense Council Inc. v. United States Environmental Protection Agency, 824 F.
2d 1258 (1st Cir. 1977).
166. 42 U.S.C. 300g-2 (1988).
167. 42 U.S.C. 300g (1988).
168. 42 U.S.C. 300h(d) (1988).
169. 42 U.S.C. 300h-2(b)(1) (1988).
170. 42 U.S.C. 300h-2(b)(2) (1988).
171. 42 U.S.C. 300j-8 (1988).
172. 42 U.S.C. 300j-8(b)(2) (1988).
173. 42 U.S.C. 300j-8(e) (1988).
174. Davis, C. L., Liability Considerations In Chemigation, National Symposium on Chemigation p. 117 (1981).
175. Pesticide Registration Notice 87-1 (1987). EPA, Office of Pesticide Programs,Registration Division.
176. 33 C.F.R. 320.2 (1989).
177. 40 C.F.R. part 230 (1989).
178. 33 C.F.R. 320.2(b) (1989).
179. Rohan, Zoning and Land Use Controls, v. 4, 26-A37.
180. 33 C.F.R. 320.4 (1989).
181. 40 C.F.R. part 230 (1989).
182. Id.
183. Fla. Stat. 403.91-403.938; Fla. Admin. Code 17-312 (1989).
184. Fla. Stat. 403.817 (1987).
185. Ld. at 403.918(1) (1987).
186. Fla. Admin. Code 17-312.080(2) (1989).
187. Fla. Stat. 403.918(2)(a) (1987).
188. Fla. Stat. 403.919 (1987).
189. Fla. Admin. Code 17-312 (1989).
190. 42 U.S.C. Ch. 82 (1988).











191. See generally 7 U.S.C. 136q (1989).
192. 40 C.F.R. part 165 (1989).
193. 40 C.F.R. 165.2(a) et seq. (1989).
194. 40 C.F.R. 165.2 (1989).
195. 40 C.F.R. 165.2(c), (e) (1989).
196. Id.
197. 40 C.F.R. 165.2(f) (1989).
198. 40 C.F.R. 165.10(b) (1989).
199. 40 C.F.R. 165.10(c) (1989).
200. 40 C.F.R. 165.10(d) (1989).
201. 40 C.F.R. 165.10(f) (1989).
202. 40 C.F.R. 165.8, 165.10 (1989).
203. 40 C.F.R. 165.8 (1989).
204. 40 C.F.R. 165.8(a) (1989).
205. 40 C.F.R. 165.8(b), (c) (1989).
206. 40 C.F.R. 165.8(b), (5) (1989).
207. The guidelines define "encapsulate" as "to seal a pesticide, and its container if appropriate, in an impervious
container made of plastic, glass, or other suitable material which will not be chemically degraded by the
contents. This container should then be sealed within a durable container made from steel, plastic, concrete,
or other suitable material ofsufficient thickness and strength to resist physical damage during and subsequent
to burial or storage. 40 C.F.R. 165.1(j) (1989).
208. 40 C.F.R. 165.8 (1989).
209. 42 U.S.C. 6901 et seq. (1988).
210. 42 U.S.C. 6903(5) (1988).
211. 40 C.F.R. part 261 subpart C (1989).
212. 40 C.F.R. part 261 subpart D (1989).
213. 40 C.F.R. 260.22 (1989).
214. 40 C.F.R. 261.7(a)(1) (1989).
215. 40 C.F.R. 261.7(b) (1989).
216. 42 U.S.C. 6928 (1988).
217. 42 U.S.C. 6972 (1988).
218. 40 C.F.R. 262.70 (1989).
219. The EPA has acted to eliminate any inconsistencies between the disposal procedures indicated on the product
labeling and the disposal procedures required by the hazardous waste management regulations. See 40 C.F.R.
262. 70 noting "in a manner consistent with the disposal instructions on the pesticide label."
220. 42 U.S.C. 6921(d) (1989); 40 C.F.R. 661.5 (1989).
221. 40 C.F.R. 261.5 (1989).
222. 42 U.S.C. 6928(d) (1988).
223. 42 U.S.C. part 6926 (1988).
224. 42 U.S.C. 6928(a)(1). Similarly, if the violation is under state authority, the state must notify the violator.
42 U.S.C. 6928(a)(2).
225. 42 U.S.C. 6928(a)(3) (1988).
226. 42 U.S.C. 6928(g) (1988).
227. 42 U.S.C. 6928(b) (1988).
228. 42 U.S.C. 6928(f) (1988).
229. 42 U.S.C. 6928(d) (1988).
230. 42 U.S.C. 6928(f) (1988).
231. 42 U.S.C. part 6972 (1988).
232. 100 Stat. 1728 (1986), codified at 42 U.S.C. 11001 et seq. (1989).
233. 42 U.S.C. 11001(d) (1989).
234. 42 U.S.C. 11001(b) (1989).
235. 42 U.S.C. 11001(c) (1989).
236. 42 U.S.C. part 11002 (1989).
237. 40 C.F.R. part 335 (1989). This list of extremely hazardous substances appears as "Appendix A" to part 355.
238. 40 C.F.R. 335.30 (1989).











239. 40 C.F.R. 335.30(e) (1989).
240. 40 C.F.R. 335.40 (1989).
241. 40 C.F.R. 335.40(2) (1989).
242. 42 U.S.C. part 11201 (1989).
243. 49 U.S.C. part 1801 (1988).
244. DOT's regulations are published at 49 C.F.R. part 171 et seq.
245. The terms "common," "contract" and "private" carriers are not defined by the Act or its regulations. DOT
apparently employs the definitions provided by the Federal Motor Carrier Act, as Amended by the Interstate
Commerce Act 49 U.S.C. 10101 (1982). Common carriers are those carriers transporting persons or property
for the general public for compensation. Contract carriers transport only under continuing agreements with
a limited number of parties. Private carriers are any persons that transport property (1) that they own,lease,
or hold under bailment, (2) across state lines or on a public highway, (3) when the property is being transported
for sale, lease, rent or bailment, or to further a commercial enterprise. 49 U.S.C. 10102(15) (1988).
246. 49 U.S.C. part 10521 (1989).
247. 49 C.F.R. part 387 (1989).
248. 49 C.F.R. 387.3(c) (1989).
249. 49 C.F.R. part 387 (1989).
250. 49 C.F.R. 172.200(a) (1989).
251. 49 C.F.R. 172.205(b) (1989).
252. 49 C.F.R. 171.15 (1989). Releases of hazardous substances must also be reported under EPA hazardous
substance regulations. See 40 C.F.R. 302.6 (1989). The EPA, however, exempts the application of pesticides
from its reporting requirements for release of hazardous substances. Id.
253. 42 U.S.C. part 6991 (1989).
254. 42 U.S.C. 6991(1) (1989).
255. Id.
256. Id.
257. 42 U.S.C. 6991a(a)l (1989).
258. See 7 U.S.C. 136(a), 136j(a)(1)(g); 136e(e) (1988).
259. 53 Fed. Reg. 25,971.
260. 53 Fed. Reg. 1,592.
261. 53 Fed. Reg. 26,013.
262. 29 U.S.C. 651 et seq. (1988).
263. 29 U.S.C. part 667 (1988).
264. 29 U.S.C. part 653 (1988).
265. 29 U.S.C. 651(b) (1988).
266. Id. See also 29 U.S.C. 654(a) (1988); Empire-Detroit Steel Division v. Occupational Safety and Health Review
Commission, (6th Cir. 1978) ["capable of achievement"]. 579 F. 2d 378.
267. 29 C.F.R. 1910.101 et seq. (1989); 29 C.F.R. part 1928 (1989).
268. 29 U.S.C. part 653 (1988).
269. See Goodwin v. Occupational Safety and Health Review Commission, 540 F. 2d 1013 (9th Cir. 1976) [Clearing
land to grow grapes affects commerce.].
270. 29 U.S.C. 652(6) (1988).
271. 29 C.F.R. 1928(C)(iii) (1989).
272. 29 U.S.C. 654(a)(1) (1988).
273. See International Union ofAuto and Aerospace Workers v. General Dynamics, 815 F. 2d 1570 (D.C. Cir., 1987),
cert. denied, 108 S. Ct. 485 (1987).
274. 29 U.S.C. 654(a)(1) (1988).
275. Pennsylvania Power and Light Co. v. Occupational Safety and Health Review Commission, 737 F. 2d 350 (3rd
Cir.1984).
276. General Dynamics Co. v. Occupational Safety and Health Review Commission, 599 F. 2d 453 (1st Cir. 1979).
277. 29 U.S.C. part 655 (1988).
278. See 29 C.F.R. part 1928 et seq. (1989).
279. 29 U.S.C. 654(a)(1) (1988).
280. Id.











281. 29 U.S.C. part 665 (1988).
282. 29 C.F.R. 1910.1200 (1989).
283. 29 C.F.R. 1910.1200(a) (1989).
284. 29 C.F.R. 1910.1200(d)(1) (1989). "Hazardous chemical" is defined by the standard as "any chemical which
is a physical hazard or a health hazard." "Health hazard" is defined to include chemicals() for which there is
statistically significant evidence based on at least one study conducted in accordance with established scien-
tific principles that acute or chronic health effects may occur in exposed employees." "Physical hazard" is
defined as "a chemical for which there is scientifically valid evidence that it is a combustible liquid, a com-
pressed gas, explosive, flammable, an organic peroxide, an oxidizer, pyrophoric, unstable (reactive) or water-
reactive." See also 52 Fed. Reg. 31,879. Identification of a farm chemical as a health hazard or as a physical
hazard within these definitions should be possible by reading the label, or is obtainable from the manufacturer
or the manufacturer's representative.
285. 29 C.F.R. 1910.1200(e) (1989).
286. Id.
287. 29 C.F.R. 1910.1200(e)(1)(i) (1989).
288. 29 C.F.R. 1910.1200(e)(1)(ii) (1989).
289. 29 C.F.R. 1910.1200(g)(11) (1989).
290. 29 C.F.R. 1910.1200(h) (1989).
291. 29 C.F.R. 1910.1200(h)(1) (1989).
292. 29 C.F.R. 1910.1200(h)(2) (1989).
293. 29 U.S.C. 657(c) (1988).
294. Id.
295. Id.
296. Id.
297. 29 C.F.R. 1910.1200 (1989).
298. 29 C.F.R. 1904.8 (1989).
299. 29 C.F.R. 1904.15 (1989).
300. Id.
301. 29 U.S.C. 657(a) (1988).
302. 29 U.S.C. part 658 (1988).
303. 29 U.S.C. 657(a)(1) (1988).
304. See Donavan v. Haffines, 645 F. 2d. 288 (7th Cir. 1981).
305. 29 U.S.C. 657(f)(1) (1988).
306. Id.
307. Marshall v. North American Car Co., 476 F. Supp. 698 (M.D. Pa. 1979).
308. 29 U.S.C. part 658 (1988).
309. 29 U.S.C. 658(a) (1988).
310. Id.
311. Id.
312. 29 U.S.C. 659(c) (1988).
313. 29 U.S.C. 666(c) (1988).
314. 29 U.S.C. part 666 (1988).
315. 29 U.S.C. 666(a) (1988).
316. 29 U.S.C. 666(b) (1988).
317. 29 U.S.C. 666(c) (1988).
318. 29 U.S.C. 666(d) (1988).
319. 29 U.S.C. 666(i) (1988).
320. 29 U.S.C. 666(e) (1988).
321. Id.
322. 29 U.S.C. 666(g) (1988).
323. 29 U.S.C. 662(a) (1988).
324. 29 U.S.C. 662(b) (1988).
325. 29 U.S.C. 653(b)(9) (1988).











PART II: CITATIONS

1. The general discussion of the law of torts that follows can be found in greater detail in Prosser and Keeton,
TORTS, 5th Ed. (1984). Because most of the propositions of law contained in this section are so generally
accepted, authority will not be cited unless necessary.
2. See discussions at pages 67-70, 75 & 76 below.
3. See discussion of joint and several liability below at page 95.
4. See Prosser and Keeton, supra note 1, at 502.
5. See Prosser and Keeton, supra note 1, at 502.
6. Prosser and Keeton, supra note 1, at 512 513. See discussion below at page 78.
7. American Law Institute, Restatement of Torts, 2d.
8. See Prosser and Keeton, supra note 1, at 227.
9. See Loe v. Lenhardt, 363 P. 2d 312, 316 (Ore. 1961).
10. Rogers, William H., Jr., Environmental Law: Air and Water West Publishing Co., 1986 at 34.
11. Section 822 of the American Law Institute's Restatement of Torts. 2d, followed in many jurisdictions: One is
subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's
interest in the private use and enjoyment of land, and the invasion is either:
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless
conduct, or for abnormally dangerous conditions or activities.
12. The exceptions are West Virginia and South Dakota.
13. Prosser and Keeton, supra n. 1, 631-2.
14. Restatement of Torts. 2d., supra vol. 2.
15. Id.
16. Id.
17. Id.
18. See Harl, Agricultural Law, 15.01 n. 47.
19. Id.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. See Holt v. Dept. of Food and Agriculture, 171 Cal. App. 3d 427 (1985) at 435-6. [Failure to make certain
that no persons were in the area by conducting an aerial survey constituted negligence when persons working
near the field were sprayed, regardless of the fact that such a survey was not a common practice.]
26. See Harl, Agricultural Law, 15.01 n. 47.
27. 53 Fed. Reg. 25,971 (1971) [EPA worker protection standards.].
28. See discussion above at page 72.
29. 94 So. 2d 293 (La. 1957).
30. Id. at 295.
31. 368 P. 2d 218 (Wash. 1977).
32. See pages 72-73 above.
33. 367 P. 2d 218, 223.
34. 362 P. 2d 312 (Ore. 1961).
35. Id. at 317, 318.
36. Id. at 317.
37. 516 P. 2d 1012 (Kans. 1977).
38. Id. at 1016.
39. 337 So. 2d 340 (Ala. 1976).
40. Id. at 343.
41. See Jurgensmeyer and Wadley, Agricultural Law, Vol II at 66-68.
42. 362 P. 2d 312, 318.











43. See Harl, Agricultural Law, 15.01(3)(c).
44. Henderson, et. al. Groundwater: Strategies for State Action, Environmental Law Institute, 1985.
45. Id.at 17.
46. Glickman and Coggins, Groundwater Pollution: The Problem and the Law 35 Kans. L.R. 75, 82 (1986).
47. The U. S. Geological Service found that 20% of more than a thousand wells tested in Kansas had nitrate/
nitrogen concentrations in excess of EPA criteria for drinking water. Id., p. 88.
48. See Part One, Pages 33-34 on BMP.
49. Rogers, supra n. 10, at 96.
50. See discussion of non-point source pollution in Part One, pages 29-31.
51. H.S. 149A-32.5 (1986).
52. 25249.5 Cal. Health & Safety Code.
53. 657 P. 2d 267 (Utah, 1982).
54. Id. at 273.
55. See generally, Davis, Groundwater Pollution: Case Law Theories for Relief, 39 Mo. Law Review 117.
56. Often the source of contamination is obvious. For example, if an oil company injects salt brine into an ex-
ploratory oil well in order to bring oil to the surface, and the farmer who lives downhill from the company's
salt water holding ponds discovers that his well has been contaminated by salt water, the easy assumption
is that the oil company is responsible for the pollution, and this is easily proven. See Branch v. Western
Petroleum, 657 F. 2d 267, (Utah 1982), and City Services Oil Company v. Merritt 332 P. 2d 677 (Oklahoma,
1958). Most reported lawsuits for groundwater pollution are of this type, where the source of pollution is clear.
But see Magnolia Petroleum Co. v. Williams, 76 So. 2d 365 (Mississippi, 1954), where several possible polluters
were located in the area and the court ruled that causation was not proven with sufficient definiteness.
57. 372 So. 2d 288 (Miss. 1979).
58. See also 86 C.J.S. TORTS 85, adopted by the court.
59. See City Services Oil Company v. Merritt, 332 P. 2d 677 (Oklahoma, 1958), and Branch v. Western Pe-
troleum, Id. at 56.
60. 592 F. Supp 976 (D. Kan., 1984).
61. Id.






































































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