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Regulations governing the use of agricultural pesticides

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Regulations governing the use of agricultural pesticides pesticide impact and assessment project manual no. 3
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Bulletin Florida Cooperative Extension Service
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Pesticide impact and assessment project manual no. 3
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Olexa, Michael T
McMichael, Alan E ( Alan Emerson )
Daniels, Alan H
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Gainesville Fla
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Food and Resource Economics Department, Institute of Food and Agricultural Sciences, University of Florida
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iv, [34] p. : ; 28 cm.

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Pesticides -- Law and legislation -- United States ( lcsh )
Pesticides -- Government policy -- United States ( lcsh )
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Michael T. Olexa, Alan E. McMichael, and Alan H. Daniels.

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Full Text
Bulletin 212
Regulations Governing the Use of Agricultural Pesticides
Pesticide Impact and Assessment Project Manual No. 3
M. T. Olexa A. E. McMichael A. H. Daniels
Fr
Florida Cooperative Extension Service / Institute of Food and Agricultural Sciences I University of Florida / John T. Woeste, Dean




REGULATIONS GOVERNING THE USE OF AGRICULTURAL PESTICIDES
Pesticide Impact and Assessment Project Manual No. 3
Michael T. Olexa, Alan E. McMichael, and Alan H. Daniels
Co-Principal Investigators:
Professor James S. Wershow Agricultural Law
Department of Food and Resource Economics
Professor Grover C. Smart, Jr. Nematologist
Department of Entomology and Nematology
Supported in Part by a Grant from the National Agricultural Pesticide Impact Assessment Program Extension Service, USDA
Food and Resource Economics Department Institute of Food and Agricultural Sciences University of Florida
Gainesville, Florida




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and court decisions on which they are based are subject to constant revision, portions of this publication could become outdated at any time.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 authors are 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.
Michael T. Olexa. is a plant pathologist/entomologist, attorney and project director of the joint USDA/NAPIAP/University of Florida Agricultural Law Program, WFAS. Alan E. McMichael and Alan H. Daniels were J.D. candidates and research assistants, University of Florida College of Law, Gainesville, 32611.
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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-NAPIAP, U.S. Department of Agriculture. The main purpose of the grant was to develop educational materials for agricultural scientists on the legal aspects of Pesticide Impact and Assessment Reports. This document is one of three dealing with impact and assessment reports and pesticide user liability.
Principal Investigators on the grant project are James S. Wershow, J.D., L.L.M. Professor of Agricultural Law, Food and Resource Economics Department, University of Florida; and Grover C. Smart, Ph.D., Professor of Nematology, Department of Entomology and Nematology, University of Florida.
The authors are indebted to the principal investigators and to Melvin L. Upchurch, Ph.D., Consultant, for review and consultation on this paper. Appreciation is extended especially to Paul W. Bergman, Ph.D., National Agricultural Pesticide Impact Assessment Program, Extension Service, USDA for making the grant available and reviewing the work; and John T. Woeste, Ph.D., Dean of Extension, University of Florida, for constructive input and support.
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TABLE OF CONTENTS
Page
PR.EFALCE ................................... ii
CHAPTER 1. FEDERAL AND COMMON LAW GOVERNING PESTICIDE USE ...........1
Primary Federal Laws ................................................... 1
The Federal Insecticide, Fungicide and Rodenticide Act...................... 1
FIFRA Regulations for Pesticide Applicators ............................... 2
Penalties for Private Applicators...................................... 3
Penalties for Commercial Applicators.................................. 3
The Resource Conservation and Recovery Act .............................. 3
Common Law Actions.................................................... 4
Trespass ............................................................ 4
Intentional Trespass ................................................ 4
Unintentional Trespass .............................................. 4
Nuisance ............................................................ 5
Public Nuisance.................................................... 5
Private Nuisance................................................... 5
Negligence........................................................... 6
Strict Liabililty....................................................... 6
Citations .............................................................. 7
CHAPTER 2. STORAGE AND DISPOSAL OF PESTICIDES
AND PESTICIDE CONTAINERS ........................................... 9
Labeling Instructions .................................................... 9
EPA Recommended Procedures for Storage and Disposal........................ 9
Hazardous Waste Regulations Relating to Pesticides and Containers ...............9
Exceptions for Farmers ............................................... 10
Exceptions for Small Generators of Hazardous Wastes....................... 10
Special Regulations for Commercial Applicators ............................. 10
Maintenance of Records and Official Inspection............................ 10
Hazardous Waste Regulations........................................... 11
Penalties for Hazardous Waste Violations ................................. 11
Other Statutes Affecting Pesticide Storage and Disposal....................... 12
Water and Air Pollution Laws........................................... 12
Transporation of Hazardous Materials.................................... 12
Common Law Liability for Pesticide Storage and Disposal ......................13
Citations ............................................................. 14
CHAPTER 3. WATER POLLUTION BY PESTICIDES ............................. 16
Significance To Agriculture .............................................. 16
Point Source ........................................................ 16
Statutory Standards ............................................... 16
Enf orcement ..................................................... 17
N on-Point Source .................................................... 17
The Safe Drinking Water Act............................................. 18
Enforcement........................................................ 18
Citizen Suits........................................................ 18
Chemigation .......................................................... 19
Future Prospects....................................................... 19
Citations ............................................................. 20
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Page
CHAPTER 4. PESTICIDE USAGE AND FARM EMPLOYEE SAFETY .................. 21
OSHA Requirements ........................................................ 21
Inspection and Investigation ................................................ 22
Penalties for Violations ................................................... 23
The Citation .......................................................... 23
Monetary Payments ................................................... 23
Criminal Penalties .................................................... 23
Injunctions ........................................................... 24
Other Bases Of Liability For Injuries To Workers ............................... 24
Common Law and OSHA .................................................. 24
Violation as Negligence Per Se ............................................ 24
Violation as a Presumption of Negligence .................................... 24
Violation as Evidence of Negligence ........................................ 24
Other Statutes ........................................................... 25
Citations .................................................................. 26
CHAPTER 5. PESTICIDE DRIFT AND RESULTANT LIABILITY ...................... 27
Common Law Theories Of Liability ........................................... 27
Negligence .............................................................. 27
Negligent Application of Pesticides ......................................... 28
Nuisance ................................................................ 28
Trespass ................................................................ 28
Strict Liability ........................................................... 29
Statutory Liability ....................................................... 29
Citations .................................................................. 31
CHAPTER 6. TREATED SEED ................................................... 32
The Federal Seed Act And Regulation Of Treated Seed .......................... 32
Labeling and Record-keeping Requirements for Treated Seed ................... 32
Labeling ............................................................. 32
Records .................................... ............... 33
FDA Regulations For Treated Seed ................. ............... 33
Citations .................................................................. 34
iv




CHAPTER 1
FEDERAL AND COMMON LAW GOVERNING PESTICIDE USE
Agricultural pesticide use is subject to extensive governmental regulation at the federal level particularly, but also by state and municipal governments. Several federal statutes and countless administrative regulations address every aspect of pesticide use, from manufacture and distribution to application, storage and disposal. This chapter summarizes the major federal statutes governing the application, handling and disposal of pesticides. Pesticide applicators must also comply with any pertinent state and local laws or regulations. The last section of this chapter introduces common law actions which may be brought against any applicator for improper pesticide use.
Primary Federal Laws
The Federal Insecticide, Fungicide and Rodenticide Act
Government control over pesticides began with the Insecticide Act of 1910 in which
Congress attempted to protect farmers from adulterated or misbranded products. Control was broadened by the original Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) of 1947, in which Congress charged the Department of Agriculture with the task of registering all pesticides before they could be introduced into interstate commerce. A 1964 amendment authorized the Secretary of Agriculture to refuse registration or to remove from the market pesticides that were unsafe or ineffective.
The administration of FIFRA was transferred to the Environmental Protection Agency (EPA) when that agency was created in 1970, marking a shift in policy from the control of pesticides for reasonably safe use in agricultural production to control of pesticides for reducing the risks to man and the environment. This shift in policy was strengthened by the Federal Environmental Pesticide Control Act (FEPCA) of 1972 which specified methods and standards of control in greater detail. Subsequent amendments have clarified the duties and responsibilities of EPA.
Under FIFRA 1 no one may sell, distribute, offer to sell, hold for sale, ship, deliver for shipment or use a pesticide unless it is registered by EPA. Registration includes approval by EPA of the label on which the use and limitations of the material are specified. EPA must also classify pesticides as "restricted" or "general use" and only certified applicators may acquire and use restricted products. EPA has established rules and procedures for certifying applicators. Requirements for certification are more stringent for commercial applicators than for individual farmers who apply restricted pesticides for their own use.
In general, all pesticides must be registered by EPA. FIFRA and related legislation, together with the rules promulgated by EPA, set forth the requirements for pesticide registration. These requirements are quite complex and need not be elaborated here other than to point out that EPA will not register a pesticide unless it is satisfied that its use as specified by the label will not cause undue harm to man or the environment. Pesticides must be reregistered periodically and EPA must make the same kind of judgment on a reregistration that it does on an original registration. EPA may cancel the registration of a pesticide if information becomes available to show that the material poses an undue risk to man or the environment.
There are some exceptions to the registration requirement, but they do not generally affect the availability or use of a pesticide in agriculture. An unregistered pesticide may be made available for experimental use by a temporary permit, especially if the experimental use




is needed to develop information needed to support an application for registration. An unregistered pesticide may be made available to combat some emergency upon application by a state agency, usually the state commissioner of agriculture.
FIFRA Regulations for Pesticide Applicators
The heart of the FIFRA regulatory scheme for pesticide application, storage and disposal is the provision for detailed instructions contained within the labeling of each registered pesticide product. Labeling instr ytions are considered by the courts to be legislative regulations with the force of law. Th Y s, it is unlawful "1... to use any registered pesticide in a manner inconsistent with its labeling." "Labeling" refers not only to the label printed on or attached to the pesticide product or its container, but also to any literature referred to on the label or in accompanying literature. It is unlawful ;to detach, alter, deface or destroy the pesticide labeling.
The ter 91 "to use any registered pesticide in a manner inconsistent with its labeling"
means to use any registered pesticide in a manner not permitted by the labeling. However, there are uses that, while not explicitly permitted by the labeling, are not considered to be inconsistent with the labeling. These uses include:
-Application of a registered pesticide at a dosage, concentration, or frequency less than that specified on the labeling.
-Applying a pesticide against a target pest not specified on the labeling as long as the application to the crop, animal or site is permitted by the labeling.
-Employing any method of application not prohibited by the labeling.6
-Mixing a pesticide with a fertilizer when the mixture is not prohibited by the labeling.6
The labeling of each registered pesticide product, whether for general or restricted use, contains brief but explicit directions for proper application, storage and disposal of the container. The applicator must ensure that these instructions are followed carefully.
FIFRA directs the EPA to establih different standards for private and commergial applicators in regard to record keeping and provides for civil and criminal penalties. A private applicator is a certified applicator who uses, or supervises the use of, restricted use pesticides for purposes of producing any agricultural commodity on property owned or rented by him or his employer, or on the property of another person provided the application is not for compensation. The exchange of personal services between producers of agricultural commodities is not considered "compensation.? Thus if a farmer treats a neighbor's field and is repaid by some pern8nal service performed by the neighbor, the farmer is still considered a private applicator.
A commercial applicator is a certified applicator who uses, or supervises the use of, restricted use pesticides for any purpose or on any property other than that described for private applicators. Generally, any application on the property oflothers for compensation other than personal services constitutes commercial application.
IIn addition, agency regulations for pesticide storage and container dispoif provide special provisions and expectations for fmers applying pesticides for their own use, persons storing or disposing of single containers, and "small quantity generators? of hazardous waste.4 A general distinction exists through FIFRA and related statutes between private applicators and commercial applicators, based on either the quantity of pesticides or containers involved or whether the application is private or for compensation. The private applicator should be aware, however, that he may become subject to regulations aimed at commercial ap1licators by virtue of exceeding the specified quantities of stored or discarded hazardoutewaste or by applying registered pesticides for other than his own use or for compensation.
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Penalties for Private Applicators. Private applicators who use a pesticide in a manner inconsistent with its labeling are subject to receiving a written warning or citation from the EPA. Subsequent violations are punishable by a civil penalty of not more than $1,000 for each offense. Private applicators or other persons who provide a service of pesticide application for others, but who are not commercial applicators, registrants, dealers, or distributors, may be assessed a civil penalty of not more than $500 f or the f irst of fense instead of a written warning or citation. Subsequent violations are punishable by civil penalties of not more than $1,000 for each offense. Before any civil penalty is assessed, the person charged is given notice and an opportunity for a hearing on the charge in the county or city where the person resides. In determining the amount of the penalty, EPA considers the appropriateness of the penalty to:
-The size of the business of the person charged,
-The ef fect on the person's ability to continue in business,
-The gravity of the situation.
If the agency finds that the violation occurred despite the exercise of due care or did not cause significapg harm to health or the environment, EPA may issue a warning instead of assessing a penalty.
Private applicators arr8liable under FIFRA for the acts or omissions of persons acting for them or employed by them. This means that if a person acting for or employed by a farmer violates the provision of the statute, the farmer, as well as the person who violates the statute, is subject to assessment of a penalty.
Private applicators 1W e also subject to criminal penalties for knowingly violating any
provisions of the statute. Knowingly violating the statute is a misdemeanor, punishable upon convi~hion by a fine of not more than $1,000, or imprisonment for not more than 30 days, or both. Private applicators are also subject to criminal penalties for the knowing violation of persons acting for or employed by them.
Penalties for 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. A person charged with violation of the act must be given notice and an opportunity for a hearing before assessment of the penalty. In determining the amount of the penalty, the EPA will consider:
-The appropriateness of the penalty to the size of the business of the person charged;
-The effect on the person's ab~jity to continue in business, and;
-The gravity of the violation.
Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who knowingly violates a provision of FIFRA shall be guilty of a misdemeanor and shall on conviction be fined not more than $25,000, or imprisoned for not more than one year, or both. The act or omission of anyone acting 19r or employed by the applicator will be considered to be the act or omission of the applicator.
No provision exists for the private citizen to bring suits for violation of FIFRA; thus suits by other than the EPA for improper pesticide application, storage or disposal must be brought under common law theories of liablilty. These common law theories are discussed later in this chapter.
The Resource Conservation and Recovery Act
The storage, transportation and disposal of hazardous wastes is governed by the hamrdous waste management provisions of the Resource Conservation and Recovery Act (RORA). Pesticides and pesticide containers containing residues are considered hazardous wastes.
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Although the hazardous waste regulations provide some exceptions for farmers using pesticides on their own land and for very small quantities of hazardous wastes, there are nevertheless circumstances in which a pesticide applicator will be subject to the regulations. Generally, a commercial applicator or a private applicator using large quantities of pesticides must comply with the hazardous waste regulations of RCRA. The hazardous waste regulations are discussed in greater detail in Chapter 2, which deals with the storage and disposal of pesticides and pesticide containers. Other federal statutes of potential relevance to pesticide use are introduced in the following chapters dealing with aspects of pesticide handling and application.
Common Law Actions
In addition to statutory or regulatory violations, a farmer or commercial pesticide
applicator may be held liable for improper pesticide use in a common law action, or "lawsuit" as it is commonly known. These actions are for civil wrongs, or torts, and are initiated by the person (the plaintiff) who has suffered some injury to person or property as a result of the acts or omissions of another (the defendant).
Common law actions do not depend upon the statutes for their authority. The common law derives from centuries of Anglo-American customs and traditions that have been incorporated into judicial rules for settling disputes. The common law varies somewhat from state to state and thus can be discussed only in general terms. This section briefly characterizes the four principal common law areas under which a farmer or commercial applicator may become liable for improper pesticide use. Specific examples demonstrating the applicability of these principals are developed throughout the text.
Trespass
Trespass is any unauthorized entry onto the property of another by some physical, tangible agency, either person or thing. Trespass actions serve to protect the interest of possessors in the exclusive possession of land. To constitute trespass, the entry must be either intentional or, if unintentional, caused by the defendant's recklessrTis or negligence or the result of the defendant's carrying on an ultra-hazardous activity.
Intentional Trespass. If the unauthorized entry is intentional, the defendant is strictly
liable regardless of whether the trespass actually caused any harm and almost regardless of the defendant's reason or justification for the entry. The plaintiff is entitled to at least nominal money damages for intentional trespass and may obtain an injunction against any threatened or continuing trespass onto his land.
Entry by anything tangible can constitute trespass; fine particulate matter, water
droplets, even gases. Moreover, the courts are quite willing to enjoin the defendant from future trespassory acts if continued injury to land is threatened, regardless of how beneficial the defendant's activity or how slight the plaintiff's injury.
Pestici e use could result in liability for trespass if the pesticides, 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 trespassory agent enter onto the plaintiff's land. It is enough if the actions that result in the trespass are intentional. Thus, intentional disposal in a manner that eventually results in trespass constitutes trespass.
Unintentional Trespass. If the trespass is unintentional the defendant is liable only for
harm caused by his reckless, negligent or ultra-hazardous acts. Ultra-hazardous activities are
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those considered by the courts to present such unwarranted and exceptional risks that the defendant is strictly liable for any injury resulting from the activity regardless of whether he was negligent or at fault in any way. Examples are activities involving wild animals, explosives, and dangerous chemicals including, in some states, pesticides.
An example of unintentional trespass would be where theft, vandalism, or a natural disaster caused the pesticides to become deposited on another's land. In such a case, the defendant would be liable only if his negligent or reckless acts or omissions led to the intentional trespass, for example failing to provide reasonable protection against such an occurrence. If the courts of the state have characterized pesticide handling as an ultrahazardous activity, then the defendant is strictly liable for the trespass regardless of whether he was negligent, reckless or at fault in any way.
Nuisance
While trespass involves a violation of another's property rights, nuisance can be
distinguished from trespass in that it consists of a use of one's own property so as to cause injury to others. The term nuisance includes two somewhat different common law actions. Nuisances are categorized as either private or public, depending upon whether the nuisance af fects the rights of the public or the rights of an individual exclusively.Y
Public Nuisance. A public nuisance is an unreasonable interference with a right common to the general public. Factors considered in determining that an interference is unreasonable include whether the conduct involves a significant interference with the public health, safety, peace, or comfort and convenience; whether the activity is proscribed by a law or regulation; or whether the conduct has continuing or long-lasting significant effects on the public right and the defendant knows or has reason to know of the significance of the effects. Because public nuisance protects the public right, only the "public", in the form of a public official or individuals joined in a class action, may obtain an injunction against the nuisance. An individual can recover money damages f rom the def endant if his injury is diff erent in kind f rom that suffered by the public. An example of a public nuisance involving pesticides would be where storage, use or disposal had a significant effect upon water quality, thereby interfering with the public right to safe drinking water. A public official or individuals joined in a class action would then obtain an injunction against the activity creating a nuisance. An adjacent landowner may recover damages from the def endant if, in addition to the interference with his right to safe drinking water, the landowner suffered the loss of his livestock from the defendant's actions.
Private Nuisance. A private nuisance is a non-trespassory invasion of another's interest in the private use and enjoyment of land. No physical invasion is required as in trespass, only a substantial interference with the possessor's enjoyment of his land, such as undue noise or an unsightly appearance. To constitute private nuisance, the invasion must be wrongful. An invasion may be wrongful in one of 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 the injury to the plaintiff. Second, the invasion may be wrongful because it results from negligence, recklessness, or extra-hazardous activitives, the same as in trespass actions.
A possessor of land who has suffered a substantial interference with his right of use and enjoyment may obtain both money damages and an injunction against the defendant. The private nuisance action is not as strict as trespass. Here, the court may consider both the value of the offending activity and the substantiality of the interests that have been invaded. For this reason, a plaintiff will normally prefer to bring a trespass action. Nuisande actions are usually brought in cases where a trespassory physical entry cannot be established. if, for example,. improper pesticide use resulted in potentially dangerous odors being carried onto adjacent
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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 his rights to the use and enjoyment of the land.
Negligence
Negligence is perhaps the most important common law action in use today. Any act or omission that creates an unreasonable risk of harm to another constitutes negligence. In order to establish a cause of action for negligence, three elements must be demonstrated. First, the defendant must have a duty of care toward the plaintiff. A duty of care exists whenever it is foreseeable that there is a risk of harm to the plaintiff. Thus if a reasonable person could foresee that pesticide usage could result in harm to anyone, then the defendant has a duty to avoid the risk. Second, if a duty of care does exist, the defendant must breach his duty by acting unreasonably in light of the foreseeable risk. The test to determine whether the defendant's actions were a breach of duty is to ask what a reasonable, prudent person would have done under the same circumstances. This determination is made by a jury. In the above example, if a reasonable person would have acted t V prevent the risk in the pesticide's use, then the defendant breached his duty by failing to do so.
In order to recover damages from the defendant, the plaintiff must have suffered some actual injury to person or property that was caused by the defendant's breach. Causation need not be direct. The breach may be the indirect cause of the injury as long as the chain of causation is not so attenuated that it is unforeseeable that the injury would result. This principal of liability for indirect but foreseeable injury is known as "proximate cause". These concepts of duty of care, breach of duty, causation, injury and damages will be developed further in examples used throughout the text.
Strict Liability
The common law doctrine of strict liability was briefly addressed above in the discussion of ultra-hazardous activities. Certain activities are considered so exceptional, non-natural or abnormally dangerous that the actors must be held strictly liable for a Y resulting injury, regardless of whether the actors were negligent or exercised due care. Examples of activities that have incurred strict liability are keeping of wild animals, carrying or storing explosives or dangerous chemicals, and conducting certain types of mining or industrial activity that, because of the circumstances of location or methods, are abnormal.
An important limitation to the doctrine of strict liability is that the defendant is liable only for injury caused by those aspects of his activity that make the activity ultra-hazardous. Therefore, an operator of an abnormal activity will not be strictly liable for any and all harm resulting from his operation, but only those injuries caused by the inherent danger in the activity.
The common law of the various states varies with respect to which activities are
considered abnormally dangerous and subject to strict liability. Generally, generators, stores, and transporters of hazardous waste are strictly liable for injury resulting from handling the waste. In some states, pesticide use is subject to strict liability.
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CITATIONS
1. 7 U.S.C. 136 (1982).
2. U.S. v. Corbin Farm Service 444 F.Supp. 510 (E. D. CA 1978);
George's Pest Control Service v. EPA 572 F.2d 204 (9th Cir. 1977).
3. 7 U.S.C. 136j(2)(G).
4. Id. at 136j(2)(A).
5. The term "to use" has been defined by regulation to include any application, storage, or
disposal of pesticide products. 40 C.F.R. 162.3 (oo).
6. 7 U.S.C. 136(ee).
7. Id. at 136i. 8. Id at 1361.
9. Id. at 136(e)(2). 10. Id. See S. Rep. No. 146, 96th Cong., 1st Sess. 7. 11. 7 U.S.C. 136(e)(3). 12. 40 C.F.R. 262.51. 13. 50 C.F.R. 165.2 (c)-(e). 14. 40 C.F.C.R. 261.5. 15. Id.
16. 7 U.S.C. 136(e)(2)-(3). 17. Id. at 1361. 18. 7 U.S.C. 1361(b)(4) provides "When construing and enforcing the provisions of this
subchapter, the act, omission, or failure of any officer, agent, or other person acting for or
employed by any person shall in every case be also deemed to be the act, omission or
failure of such person as well as that of the person employed."
19. Id., "Knowingly" has been defined as intending to do the actions constituting the violation; a
specific intent to violate the law or a knowledge of the regulation is not a necessary
element of the crime. U.S. v. Corbin Farm Service supra n. 2. 20. 7 U.S.C. 1361(b)(2). 21. Id. at 1361(a)(4). 22. 1361(a)(5). 23. 42 U.S.C. 6901.
-7-




24. See generally Prosser. The Law of Torts, 63-75 (4th ed., 1971). 25. Id. at 571-614. 26. Id. at 205-491. 27. Id. at 492-540.
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CHAPTER 2
STORAGE AND DISPOSAL OF PESTICIDES AND PESTICIDE CONTAINERS
Farmers and commercial pesticide applicators are subject to specific legal responsibilities for the proper storage and disposal of pesticides and pesticide containers. Statutory and regulatory requirements enacted by Congress and Federal regulatory agencies play a major role in this area of pesticide regulation. The EPA has the primary responsibility for enforcement.
The E A has published regulations concerning pesticide storage and disposal in accordance with FIFRA the primary statute governing the distribution and use of pesticides. Additional regulations concerning the disposal of waste pesticides and containers have been established under the hazardous waste management provisions of the RCRA.
Labeling Instructions
Each registered pesticide product, whether general or restricted use, contain3 brief but explicit instructions in its labeling regarding storage and disposal. The applicator must follow these instructions carefully and insure that all persons working for him follow them as well.
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. These procedures are not mandatory, but are recommended as extremely useful guides for safe storage and disposal. The procedures recommended apply to all pesticides, both general use and restricted use products, and address the needs of both private and commercial applicators. 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. Nor do they apply to single containers of pesticides used on farms and ranches which may be disposed of by open field burial with due regard for the protection of surface and sub-surf ace waters.
Hazardous Waste Regulations Relating to Pesticides and Containers
Although FIFRA controls federal regulation of pesticide use, including application,
storage, and disposal, there are circumstances whereby the disposal of pesticides and pesticide containers comes under the purview of the hazardous waste management regulations pursuant to RCRA.
Waste pesticides and containers constitute solid waste under RCRA.5 Individual pesticide products and their containers and residues constitute hazardous solid waste by virtue of meeting the characteristics of hazardous waste specified in 4%C.F.R. 261 Subpart C or appearing on th~ lists of hazardous wastes in 40 C.F.R. 261 Subpart D. It is the responsibility of the generator of the solid waste to determine whether the waste constitutes a hazardous waste under the regulations. A generator has the opportunity under 40 C.F.R. 260.22 to petition the EPA for exclusion of a particular waste from the hazardous waste regulations.
Most registered pesticides, containers and residues come within the hazardous waste category of Subpart D, section 261.33 "Discarded commercial chemical products, offspecification species, containers, and spill residues thereof.! Pesticide containers, inner liners, and any residues are subject to the hazardous waste regulatory provisions unless the containers
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or liners are empty.8 A container or liner that has held a commercial chemical product identified in 40 C.F.R. 261.33(a) is empty if:
-The container or liner has been triple rinsed using a solvent capable of removing the commercial chemical product or manufacturing chemical intermediate;
-The container or liner has been cleaned by another method that has been shown in the
scientific literature, or by tests conducted by the generator, to achieve equivalent removal, or;
-In the case of a container, the inner liner that prevented contact of the commercial chemical ? roduct or manufacturing chemical intermediate with the container, has been removed.
Once emptied by one of these methods, the container is no longer subject to the hazardous waste regulations. Impropeij disposal of containers noltthus emptied subjects the generator to civil and criminal penalties, as well as citizen suits for violating the provisions of RC RA.
Exceptions for Farmers
The regulations allow exceptions and provisions for farmers and generators of small
quantities of hazardous waste. A farmer disposing of waste pesticides from his own use which are hazardous wastes is not required to comply with the hazardous waste regulations of 40 C.F.R. Parts 122,264, or 265 provided he triple rinses each container as described above and disposes of the resi Y es on his own farm in a manner consistent with the disposal instructions on the pesticide label.
Upon following the triple rinse procedure, the containers are then "empty" and the farmer can discard them without regard to the hazardous waste regulations. Note, however, that the empty containers are still subject to any disposal instructions contained within the labeling of the product and disposal in a manner "inconsistent with the labeling" instructions is a violation of FIFRA.13
Exceptions for Small Generators of Hazarous Wastes
Notwithstanding the farmer exception, a person disposing of pesticide containers or
residues is exempt from the hazardous waste regulations if he generates less than 1 kilogram (2.2 pounds) per month of the hazardous wastes described in 40 C.F.R. 261.33, or 1400 kilograms (220 pounds) of residue or contaminated debris resulting from clean up of a spill. Since it would not take long to generate 2.2 pounds of waste commercial chemical products, residues or unrinsed containers, the small quantity generator exception of f eyt little protection f or a farmer who ignores the triple rinse procedures of the farmer exception.
Even if an applicator falls within the small quantity generator exception, he must still
make a determination of the hazardous natulj%of the waste as per 40 C.F.R. 262.11, and follow certain procedures for storage and disposal.1 Hazardous waste that is being legitimately 1 reused, reclaimed or recycled is not subject to the hazardous waste management regulations.1
Special Regulations for Commercial Applicators
Maintenance of Records and Official Inspection
Commercial pesticide applicators may be required to maintain records of the delivery,
movement, or holding of pesticides or pesticide devices. This would include storage and disposal of pesticides and containers. Upon request by EPA or designated state officials these records must be produced for inspection. Prior to inspection, officials must present to the applicator a written st *ment indicating the reasons for the inspection and whether a violation of the law is suspected.
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EPA or designated state officials are also authorized to inspect any establishment or other place where pesticides or devices are held for distribution or sale for the purpose of inspecting and obtaining samples of any containers or labeling for such pesticides or devices. Officials must present a written statement to the applicator indicating the reasons for the inspection, and whether a violation of 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 reproduyion of records and the seizure of any pesticide or device which is in violation of the statute.
Hazardous Waste Regulations
Commercial pesticide applicators are hazardous waste generators under the regulations
whenever they generate discarded commercial chemical products, containers or spill residues as described in 40 C.F.R. 261.33 or any other hazardous waste as defined in the regulations. The farmer exception, 40 C.F.R. 262.51, exempting farmers who use pesticides on their own land, does not apply to cornmergal applicators. Nor are commercial applicators likely to qualify as small quantity generators and thus be exempt from the regulations. Commercial applicators storing or disposing of pesticides or containers are, therefore, subject to the standards for generators, transporters, and disposers of hazardous waste in 40 C.F.R. Parts 122-124, and 262267. The major elements of the RORA 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 waste, or who owns or operates a facility for the treatment, storage or disposal of hazardous waste, to notify EPA of the identity of the hazardous waste involved and the nature of the activltj. Transporting, storing, or disposing of hazardous waste before filing this notice is unlawful. Additionally, each person owning or operating a facility for the treatment, storage or disposal of hazardous waste must have a permit from EPA. The permitting procedures are published at 40 C.F.R. Parts 122-124.
Extensive regulations regarding record keeping and recording, storage, transportation and disposal, both on-site and off-site, are contained in 40 C.F.R. Parts 262-264. A major feature of these regulations is a manifest system that allows EPA to follow hazardous waste from generator to transporter to disposer. Upon request of EPA or designated state officials, the generator must permit the officials to inspect the facility, insect and reproduce records, and inspect and obtain samples of wastes, containers, or labeling.
The states may implement their own hazardous waste management programs to operate in lieu of the federal system after authorization by EPA. Any action taken by a statsy~nder an authorized hazardous waste program has the same force and effect as EPA action.
Penalties for Hazardous Waste Violations
When EPA determines that a person is in violation of any provisions of RCRA, the violator is first notified. 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. If the violator fails to comply within the specified time, he shall be liable for a civil penalty of not more than $25,000 for each day of continued noncompliance and the Agency may revoke or suspend any permit issued to the violator. Upon suspension or revocation of a permit, the violator may request a public hearing. In determining the amount of the civil penalty, EPA considers the seriousness of 2Ve violation, and any good faith ef forts to comply with the applicable requirements.
Criminal penalties are imposed upon any person who knowingly:
-Transports any hazardous waste to a facility which does not have a permit,
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-Treats, stores, or disposes of any hazardous waste without having obtained a permit, or -Makes any false statement or representation in any application, label, manifest, record, report, permit or document used in compliance with the statute.
Upon convictions, the violator is subject to a fine of not more than $25,000 for each day of violation, or to imprisonment not to exceed one year, or both. Violations by a person previously convicted under the statute are punishable by fines of n ? more than $50,000 per day of violation, or imprisonment for not more than two years or both.
Unlike FIFRA, RC RA allows citizen suits for violation of the statute. The plantif f must notify the alleged violator, the EPA and the appropriate state authorities at least 60 days prior to bringing suit and may not bring suit against any person who i the subject of EPA or state civil or criminal action to require compliance with the statute.6
Other Statutes Affecting Pesticide Storage and Disposal
Water and Air Pollution Laws
In certain situations, improper pesticide storage or container disposal may constitute a violation of the Clean Water Act or the Clean Air Act. Both of these statutes are discussed in greater detail in subsequent chapters; they are mentioned here only to the extent that they may apply to pesticide storage and disposal.
The Clean Water Act27 establishes limitations on discharge into navigable waters of
pollutants through "point sources"t. Point sources are discrete, discernable conveyances such as drainage pipes or ditches. It is conceivable that a discharge from improper storage or container disposal at an agricultural or industrial facility may constitute a point source under the act. The Clean Water Act directs EPA to establish regulations covering "non-point" sources of water pollution, specifically including agricultural activities. To date, however, these regulations have not been established. See Chapter 3.
The Clean Air Act29 directs the states to develop implementation plans for attaining
national air quality standards. The state implementation plans prohibit any "stationary source" usually an industrial facility, from operating in such a way as to prevent attainment of the air quality standard applicable to the region. An example of the way in which this might affect a commercial applicator would be if an incinerator facility disposing of waste pesticides or containers would be construed a stationary source for purposes of the statute.
Transportation of Hazardous Materials
The Transporation Safety Act of 197430 vests in the U.S. Department of Transportation (DOT) the authority to regulate the movement of all hazardous materials by any mode of transportation. Most, if not al V~esticides fall within materials characterized as hazardous in the regulations issued by DOT.
The extensive DOT regulations govern the packing, abeling and handling of pesticides for transportation by common, contract or private carriers. A commerical pesticide applicator transporting pesticides for application under contract would constitute either a contract or private carrier and thus be subject to the regulations. Under certain circumstances, a private pesticide applicator transporting pesticides for his own use may be considered a private carrier subject to the regulations. Activities which may constitute private carriage of hazardous materials include crossing state lines while transporting pesticides and transporting pesticides for another person under an agreement to provide such transportation (with or without compensation).
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Motor carriers transporting hazardous materials, including pesticides, across state lines must have special insurance coverage. Private carriers transporting purely within the borders of a single state are exempted from this requirement provided the transport vehicle has a gross vehicle weight of less than 10,000 lbs. If the vehicle is a tank truck it must have a tank capacity of less than 3,500 water gallons capacity (regardless -of the actual quantity of material transported) to be exempted from the insurance requirement.3
Common Law Liability for Pesticide Storage and Disposal
In addition to statutory or regulatory violations, a farmer or rancher may become liable for improper pesticide storage and disposal in a suit for trespass, nuisance, negligence, or strict liability. These common law actions are discussed in Chapter 1.
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Citations
1. 7 U.S.C. 136 (1982).
2. 42 U.S.C. 6901 (1976). 3. 40 C.F.R. 165 (1983).
4. 42 U.S.C. 6901. 5. Id. at 6903 (5).
6. 40 C.F.R. 261.3.
7. A generator is any person by whose act or process produces hazardous waste or whose act
first causes a hazardous waste to become subject to regulation. 40 C.F.R. 260.10.
8. Id. at 261.7 (a). 9. Id. at 261.7 (b). 10. 42 U.S.C. 6928. 11. Id. at 6972. 12. 40 C.F.R. 262.51. 13. The EPA has initiated action to eliminate any inconsistencies between the disposal
procedures indicated on product labeling and the disposal procedures required by the
hazardous waste management regulations. See EPA Proposed Regulation Notice 83-3,
March 29, 1983. After 1984 the labeling instructions will indicate disposal procedures that
comply with both FIFRA an RCRA. Until then it is recommended that the applicator
follow the container disposal procedures indicated on the product labeling, regardless of
whether the container has been emptied in accordance with the hazardous waste
regulations.
14. 40 C.F.R 261.5. 15. Id. at 262.51. 16. Id. at 262.5 (g). 17. Id. at 261.5 (c). 18. 7 U.S.C. 136f (b). 19. Id. at 136g. 20. 40 C.F.R. 261.5 (e). 21. 42 U.S.C. 6928 (d). 22. Id. at 6927 (a).
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23. Id. at 6926. 24. Id. at 6928. 25. Id.
26. Id. at 6972. 27. 33 U.S.C. 1251 (1976). 28. Id. at 1268 (b) (2) (f); 1314 (f). 29. 42 U.S.C. 7401 (Supp. V 1981). 30. 49 U.S.C. 1801 (1976). 31. 49 C.F.R. 171 (1982). 32. These terms are not defined in the Act or it's 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 (1) transporting property that they own, lease or hold under a 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)
(1982).
33. 49 C.F.R. 387 (1982).
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CHAPTER 3
WATER POLLUTION BY PESTICIDES
Through the Federal Water Pollution Control Amendments (FWPCA) of 1972, 1 the federal government established a strategy to end water pollution. As stated in the declaration of goals and policy, the objective of the law was that of restoring and maintaining the chemical, physical, and biological integrity I~ the nation's water. FWPCA was later broadened by the Clean Water Amendment of 1977. This Act gave the federal government the authority to regulate discharges of pollutants into the nation's waters in an effort to eliminate all such discharges by 1985. The EPA was delegated broad authority over the surface and subsurface waters of the United States, extending to the oceans, tidal creeks, and even dry spillstreams that flow only during heavy rainfalls.
- Significance to Agriculture
Pesticides entering into a body of water are considered to be a pollutant. FWPCA categorizes sources of water pollution as point and non-point.
Point Source
A point source is defined as any discernible, confined and discrete conveyance.4 For example, a pipe carrying wastes which discharges such wastes directly into a river is a point source of pollution.
Agricultural operations designated as point sources of pollution include dairy product processing, grain mills, processing canned and preserved fruits and vegetables, feedlots, processing timber products and fertilizer manufacturing. Operators of these and other point sources of pollution must apply for an EPA Pollution Discharge permit and comply with its terms, and additionally, conform to applicable national standards of performances However, only those operations initiated after publication of the federal regulations which set the performance standards need comply. TI 4e applicable regulations and their dates of enactment are in the Code of Federal Regulations. All point source operations, new or old, must apply for a discharge permit before any point source can legally discharge a pollutant. Application is generally made through the appropriate state's Department of Enviromental Regulation if that state has an approved permit program. If not, the application must be made through the EPA. Under tI~p 1977 amendments, return flows from irrigated agriculture are not by definition point sources.
Statutory Stan~ards. Two standards, differing in rigidity, can be imposed on point sources of water pollution.
-Best Available Demonstrated Control Technology or Operating Method. This is the
standard applicable to agricultural point source pollutants. It is not a rigid standard. It can vary depending upon the particular facts peculiar to a given farm operation. Exemptions may be granted upon application to the EPA or state enforcement body. All agricultural operations that constitute point sources of pollution must adopt the required method or technology.
-Best Available Technology Economically Achievable. This is the initial standard applied to those operations which discharge toxic pollutants. Eventually, these pollution sources must adopt the Best Conventional Pollutant Technology. These standards cannot be defined. Rather, the EPA proposes standards which they feel meet these definitions and those disagreeing may submit their comments. The EPA is also authorized to ban outright discharges of a class of toxic pollutants.
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Enforcement. The states, upon approval by the EPA, become the primary enforcement body. In the event a state fails to act, the federal government enforces the Clean Water Act provisions.
Operators of point sources are required to: maintain operational records, make reports, install, use, and maintain certain monitoring equipment or methods, and take samples. As may be required by the enforcement agency, those enforcing this Act have the right to enter and inspect any point source operation. The enforcement officials have the option to bring a civil suit against a violator or issue an order to seek compliance. Civil fines can range up to $10,000 per day for a willful or negligent violation. Fines range from $2,500 to $25,000 per day plus up to one year imprisonment. The courts also have Te right to halt immediately any operations which cause pollutants to be illegally discharged.
Non-point source.
A non-point source is an operation w i6h discharges pollutants into waterways without
having an identifiable "point" of discharge. For example, all agricultural activities producing run-of f entering into waterways are non-point sources. A farmer who sprays his fields with a pesticide will be operating a non-point source of pollution, if when it rains, run-off containing pesticide residue enters a stream, creek, river or lake.
At this time, however, there are no federal standards controlling the discharge of
pollutants by these sources, nor are there applicable national performance standards if the pollutant discharges are not considered to be toxic. Exceptions may exist within the states, and the reader is encouraged to consult appropriate state laws.
Certain pollutants are designated as toxic by the EPA. The standards applicable to toxic pollutant discharge are more stringent than those applicable to non-toxic substances. A lifl of all substances currently designated as toxic are listed in the Code of Federal Regulations.
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The Safe Drinking Water Act
The Safe Drinking Water Act12 may also affect a farmer's use of pesticides. In general, this Act allows states to issue regulations designed to protect the pollution of public water systems. 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.
In particular, states must control and monitor activities posing a threat to public drinking water sources. Any activity that introduces pollutants subsurface, not necessarily just into a well, is within the scope of the Safe Drinking Water Act. This means that applying pesticides subsurface 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 jurisdiction of the Safe Drinking Water Act if it results in the subsurface introduction of pesticides or other pollutants. If water pollutants are passed back into the water source and subsequently pose a threat to a public drinking water source, the irrigation operation 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.
Enforcement
Civil fines can be as higl gs $5,000 per day for a non-willful violation and up to $10,000 per day for a willful violation.
Citizen Suits. Any person may commence a civil action against another who violates any requirement imposed by the Act or by the enforcement officials. However, before a violator may be sued, he or she 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. The state, however, canlitill impose civil fines for each day the violation remains or remained uncorrected.
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Chemigation
ChTgigation refers to the application of crop management materials through irrigation systems. Injection of crop management materials such as fertilizers and agrichemicals into an irrigation system which is not carefully designed and safely managed can result in serious groundwater contamination and legal consequences of significant magnitude.
Application of safety equipment in preventing back-flow will substantially reduce the problems of contamination and subsequently the risks of exposure to liability.
Safety equipment is available that, when properly installed, can prevent back-flow and subsequent groundwater contamination. Presently, federal law has not specifically mandated the use of these safety devices. Addj1onally, few states have adequate laws, if any, requiring the installation of safety equipment. Nevertheless, agriculturalists should consult state laws and local ordinances which in some instances may mandate the installation of equipment for back-flow prevention. Farmers seeking information on the installation and nlyntenance of back-flow preventors should contact their respective state extension agents.
Although the farmer cannot be completely shielded against exposure to legal liability, the installation of safety equipment will reduce such exposure. It is presently estimated that the averagelxpense of such installation is less than one percent of the total cost of the irrigation system. Additional safeguards may include: the requirement 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 phytotoxicity in the preparation of chemical application schedules and dosage rates; following explicity, calculated and recommended dosage rates; sound soil conservation; consultation with legal counsel on the advisability of purchiing workman's compensation insurance coverage and purchase of chemical liability insurance.
By definition, chemigation woqlg arguably be categorized as a point source of pollution and subject to the Clean Water Act. Additionally, the common law actions of trespass, negligence, nuisance and strict liablity as described in Chapter 1, may be levied against farmers for contaminating groundwater via chemigation.
Future Prospects
Due to expansive federal jurisdiction over the nation's water-ways, agricultural operations which entail the application of fertilizers and pesticides would likely be classified as non-point water pollution sources as defined by the Clean Water Act. "Water-ways" is so broadly defined as to include almost every potential depression in which water is or may be carried.
As noted, agricultural operations classified as non-point sources of pollution are generally not yet under the rigid standards imposed by the Clean Water Act. The EPA, however, does retain the authority to develop and impose standards on non-point source operations. Farmers should stay abreast of any new developments through county extension agents or by contacting their state Environmental Regulatory Agency.
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Citations
1. Pub. L. 92-500, 86 Stat. 816 (1972), now codified as 33 U.S.C. 1251 et seq. (Supp. V. 1982).
2. 33 U.S.C. 1251.
3. Pub. L. 95-217 (1977), 91 Stat. 1566 et seq.
4. 33 U.S.C. 1362 (14).
5. 33 U.S.C. 1342. Enforcement is mandated through the National Pollution Discharge
Elimination System (NPDES).
6. 40 C.F.R. Part 400-460 (1983).
7. 33 U.S.C. 1362 (14) as amended by Pub. L. 95-217 Section 33 (b), 91 Stat. 1577 (1977).
8. 33 U.S.C. 1311.
9. Id. at 1364.
10. Montgomery, Control of Agricultural Water Pollution: A Continuing Regulatory Dilemma.
1976 U. Ill. L.F. 535-541 (1976). 11. 40 C.F.R. 129.4 (1983). 12. 42 U.S.C. 300f et seq. (Supp. V 1982). 13. Id. at 300h-3 (c).
14. Id. at 300j-8 (e).
15. Chalfant, R. B. and J. R. Young, Chemigation, or Application of Insecticide Through
Overhead Sprinkler Systems, to Manage Insect Pests Infesting Vegetable and Agronomic
Crops. 75 J. Econ. Entomol. 237-241 (1982).
16. Georgia is one of a few exceptions. Rules of Georgia Department of Agriculture.
Prevention of Ground and Surface Water Contamination. CH. 40-23-2 "Anti-Syphon
Device".
17. Smajstrla, A. and D.S. Harrison, Chemigation Safety, Agricultural Engineering Fact Sheet.
AE-28 Florida Cooperative Extension Service, IFAS, University of Florida, Gainesville,
Florida.
18. Interview with D. S. Harrison, Agricultural Engineering Department, University of Florida,
Gainesville, Florida (September, 1983).
19. Davis, C. L. 1981. "Liability Considerations In Chemigation." National Symposium on
Chemigation p. 114.
20. Since many labels call for the installation of back-flow preventors prior to application of
the respective agrichemical, the reader should also follow label instructions. Failure to do
so is in violation of FIFRA Secton 12 (a) (2) (G) "use inconsistent with the labeling."
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CHAPTER 4
PESTICIDE USAGE AND FARM EMPLOYEE SAFETY
Under FIFRA, the EPA has general authority to regulate pesticide use in order to
minimize risks to human health and safety. This authority extends to the protection of farm workers exposed to pesticides. All employers must comply with any pesticide labeling instructions concerning employee safety, for example protective clothing, handling instructions, etc. The EPA may also issue regulations governing the use of and exposure to pesticides by employees, for example the regulations concerning worker reentry into fields after pesticide application.
In addition to any applicable requirements imposed by pesticide labeling instructions or EPA regulations, employers have other statutory and common law responsibilities to minimize the risks posed by pesticides to health and safety of their employees. The primary federal law governing farm employee safety is the Occupational Safety and Health Act, hereinafter referred to as OSHA or "the Act."1 Under OSHA and related regulations states may develop enforcement plans which, if approved, become the enforcing mechanism. OSHA is effective in all states, and is intended to prevent harm rather than compensate for injuries. It does not seek to impose absolute safety, but rather, is designed to require a good faith effort to balance employee safety against the employer's interest to function without undue interference.
OSHA applies to all persons (employers) engaged in a business affecting commerce. How then does an individual know whether a particular farm operation affects commerce? Courts are responsible for determining which businesses are subject to OSHA. Once a court determines that a particular business operation affects interstate commerce, all employers engaged in that particular buisness activity are subject to OSHA's requirements. Courts have construed OSHA liberally. Even business activities remotely connected with interstate commerce have been found to affect interstate commerce. In past cases, a home garden has been found to affect commerce if it provided food or fiber to be introduced into the stream of commerce. The garden would thus fall within the ambit of OSHA regulations. In view of OSHA's liberal construction and court cases establishing the right of Congress to regulate farming operations, the Act can and does apply to farm and ranch operations. The Act's rules and standards, however, need not be followed where all workers are independent contractors as opposed to employees.
OSHA Requirements
In general, every employer covered by OSHA must provide his employees with an
employment environment~free from recognized hazards that are causing or likely to cause death or serious physical harm. This does not mean that all hazards must be eliminated. The employer must eliminate only feasibly preventable hazards. Additionally, the hazard to be minimized must be a "recognized hazard". "Recogniz-ed"1 is used both objectively and subjectively. Subjectively, if an employer knows about a particular hazard which generally is not present or recognized, he will be held accountable under OSHA. Objectively, an employer will be held accountable if an injury arises from a hazard which he did not recognize but which generaly is recognized by most individuals within the farm industry. While OSHA addresses the prevention of hazards which cause death or serious physical injuries, an employer's duty under OSHA can also extend to preventing non life-threatening injuries.
It is important to note that while OSHA provides criminal and civil sanctions to enforce the duty of employers to supply safe working conditions, the injured party cannot sue the employer merely based on a violation of OSHA. This is discussed further in the section "Other Bases of Liability for injuries to Workers."
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Even if an employee's injury arises from his own negligence, the employer can still be held responsible for violating OSHA where the employee's negligence is forseeable by the employer either because of the employer's prior experience or knowledge of special facts and where demonstrably feasible measures existed to prevent such employee injury. In previous cases, employers have been found in violation of OSHA where an employee's death could result from lack of adequate training and supervision in the safe operation of unique heavy machinery. Under this reasoning, farm employers can be in violation of OSHA if they fail to train employees in the proper handling of pesticides, even if an injury as not yet resulted. The employer in this situation also may be in violation of the FIFRA.
In addition to, and in conjunction with, the general duty of care, each employer covered by OSHA must comply with any and all relevant and applicable safety and health standards issued under OSHA's authority. Federal regulations promulgated under OSHA set forth a wide range of safety and health standards.
There are not a wide variety of standards applicable to agricultural operators or
specifically to pesticide related operations. There are no standards on the use of protective clothing. The duty of farm employer's in these uncovered areas will be set by the general duty of care mandated by the Act. This means that farm employers when engaged in certain farming practices need not follow a set series of steps to comply with OSHA. Instead, farm employers in these circumstances are bound by a reasonableness standard-did the employer take all reasonable steps necessary and feasible in eliminating or minimizing recognizable hazards? This question as framed by a court of law would ask: Did the employer do what a reasonably prudent person would do under similar circumstances?
Any employer may apply to the Secretary of Labor for a variance from a standard if compliance with such standard is Po burdensome due to the unavailability of professional or technical personnel or equipment.
Farm employers must make and preserve records of their activities relating to OSHA. These records must be available to the OSHA enforcement officials upon request. Basically, records must contain information on any farm related accidents or existing or potential hazardous conditions other than minor injuries not requiring medical treatment, loss of consciousness, restriction of work, or transfer to another job. Causes and preventative steps (if any taken) must also be incorporated within the records. Other requirements include an annual summary, supplementary records and the reporting of fatality or multiple hospitalization accidents. 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.
Farm employers with ten or fewer employees at anytime during the prior calendar year, need only report within 48 hours after occurrence of fatal accidents and/or those involving hospitalization of five or more employees. These "small" employers must also maintain a log of occupational injuries and illnesses.
Inspection and Investigation.
To ensure compliance with OSHA, the Secretary of Labor, his representative or state enforcement officials are authorized to enter farms and inspect and investigate farming operations. These officials may write citations for observed violations of OSHA (see Penalities; for Violation).
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The right of entry and inspection is not, however, unlimited. Basically, the entry and inspection must be reasonable with respect to time and place. Courts have stated that administrative enforcement officials must have a search warrant or its equivalent for an entry to be "reasonable".
Employees can request an inspection by giving notice to the OSHA enforcement
authorities. Notice of this request must be given to the employer at or before inspection. A federal district court case has held that, "1... 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 (ot OSHA) would violate the employer's Constitutional rights against unlawful searches"1. Federal regulations outline procedures which enforcement officials must follow in deciding whether or not to act on an employee complaint.
Penalties for Violations
The Citation. OSHA enforces its provisions through criminal and civil sanctions.'0 When an OSHA provision is not satisfied by an employer, for example if an employer fails to prevent a feasibly preventable hazard, the violator is issued a citation. A citation for an OSHA violation can be issued only if, after an inspff tion or investigation, an enforcement official believes that a violation of OSHA has occurred. The~ citation must be in writing and must describe specifically the nature of the violation." The citation must also give an employer a reasonable time to~~ate the violation and cannot be issued more than six months after a violation occurs. It is possible that a violation of OSHA may be ongoing in that continually hazardous work conditions exist. Under such circumstances, the six month statute of limitations is never applicable. This limit applies to citation procedures W~ does not limit the time in which criminal prosecution for OSHA violations must begin.
The employer may contest a citation by notifying the enforcement official within 15 days from receipt of the notice of penalty. If timely requested, an administrative hearing is held to decide if the penalty is warranted or not. idicial review in a court of law may be inititated following an adverse administrative ruling.
If the cited employer fails to abate the OSHA violation timely, a new penalty can be
imposed. ISthe employer can show a good faith effort to comply, the abatement order can be modif ied.'
For violation of OSHA there are three potential consequences: monetary payments, imprisonment, and shutdown of the employer's operations.
Monetary Payments. For willful (intentional disregard of, or plain indifference to) or repeated violations of any OSHA provision, a $10,000 fine per violation can be imposed. Additionally, a $1,000 fine per violation must be imposed for serious violations. If the violation was not of a serious nature (it did not threaten serious physical harm), a $1,000 fine per violation may be imposed. For failing to timely abate a violation, a fine of $1,000 for each day such violations continues can be levied. Failure to post notices can result in a fine of up to $1,000.
Criminal Penalties. If convicted of a willful violation of any OSHA provision which
violation caused an employee's death, up to a $10,000 fine or up to 6 months imprisonment or both must be imposed. For convictions for such violations committed after a prior conviction by such person, a fine up to $20,000 and imprisonment up to one year or both are authorized.
For falsifying records, reports, statements, and other documents required to be kept and compiled by OSHA, a $10,000 fine plus up to 6 months in prison may be imposed.
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Injunctions. Upon a petition by the enforcement officials, courts may order immediately the shut down of all or part of any operation which poses a danger which may be reasonably expected to cause death or serious injury. This injunction will remain in force until the outcome of any enforcement hearing (if one was timely requested).
Other Bases of Liability for Injuries To Workers
Common Law and OSHA
OSHA expressly states that it in no yy enlarges or diminishes any "common-law statutory rights, duties or liabilities of employers".
Violation of OSHA's general duty provision can subject the violator to a negligence suit. Failure to take reasonable precautionary steps to-reduce a preventable recognized hazard can be both negligent and in violation of OSHA's general duty provision requiring the employer to take reasonable steps to eliminate or reduce hazardous conditions. Consider again the example of sending farm employees without adequate protection into fields immediately after application of a potentially harmful pesticide.
An employer owes a duty of care to those in his employ. What then is the legal duty of care expected of an employer? The answer is twofold. In general, the level of care expected would be the care which a reasonably prudent person would exercise under similar conditions. Merely because everyone in an industry follows certain procedures does not make that procedure reasonable. The legal duty of care required can go beyond that of normal industry practices.
The level of care can also be set by statute. For example, OSHA sets out standards to be followed in agricultural operations. These standards can set the level of care expected of the employer in fulfilling their duty to their employees. Here, the employer must a least do those things required by the standards. Merely fulfilling a statutory requirement will not always disprove negligence. As previously noted, the level of care expected under given circumstances can be greater. In each particular agricultural situation, the behavior required by statute may not take into consideration all potential hazards. Therefore, in those situations where the agriculturalist has performed as required by law, he or she should consider whether danger still exists. If so, additional precautions should be taken to eliminate or minimize the hazard.
State law varies according to the manner in which violations of OSHA are considered in negligence cases. The various state doctrines may be classified as follows.
Violation as Negligence Per Se. If an employer violates an OSHA regulation intended to protect employees and as a result an employee is injured, the employer will be held negligent regardless of how reasonably he or she acted. The only defense would be that there was no actual OSHA violation.
Violation as a Presumption of Negligence. Proven violations of OSHA only create a rebuttable presumption of negligence. Evidence which shows that under the particular circumstances a reasonably prudent person would have acted as did the defendant-employer rebuts the presumption.
Violation as Evidence of Negligence. Proven violations of OSHA amount to some evidence of negligence. Without additional evidence demonstrating that the employer's actions or inactions were unreasonable, it is not likely that liability will be imposed.
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Since OSHA does not provide a private legal remedy to injured employees, negligence is the legal theory that these injured parties would use to recover monetary damages.
Strict liability (see Chapteri) can be used in some states to seek compensation for
injuries. Not all states will use this theory for imposing liability. Check your state's position.
Other Statutes.
More than one statute may be violated by a single act. For example, an injury to an employee arising from the improper handlinrdsoa fpsiie eutn h
contamination of water could violate FIFRA as well as the Clean Water Act. Additionally, state laws covering a myriad of topics from pesticides to farm labor standards can be violated in the employer/employee relationship addressed by OSHA.
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Citations
1. 29 U.S.C. 651 et seq. (1976).
2. Wickard v. Filburn, 317 U.S. 111 (1942).
3. 29 U.S.C. 654.
4. Arkansas-Best Freight Systems, Inc. V. Occupational Safety and Health Rev. Comm.,529 F.
2d 649 (8th Cir. 1976); cf. Babcock & Wilcox Co. V. Occupational Safety and Health Rev.
Cmm., 622 F. 2d 1160 (3rd Cir. 1980).
5. 7 U.S.C. 136 (1982).
6. The standards applicable to agricultural operators cover 1) labor camps, 2) storage and
handling of anhydrous ammonia, 3) pulpwood logging, 4) slow-moving vehicles, 5) rollover protective structures for tractors, 6) protective frames and, 7) enclosures for wheel type
agricultural tractors, and protective guards for farm field equipment, farmstead equipment
and cotton gins. 29 C.F.R. 1928 (1982). 7. 29 U.S.C. 655 (d); 29 C.F.R. 1905 (1982).
8. 29 C.F.R. 1914 (1982).
9. Marshall v. North American Car Co., 467 F. Supp. 698 (M.D. Pa. 2979). 10. 29 U.S.C. 666. 11. 29 U.S.C. 658 (a). 12. Id.
13. Id.
14. U.S. v. Dye Const. Co., 510 F. 2d (10th Cir. 1975). 15. 29 U.S.C. 660. 16. 29 U.S.C. 659 (c). 17. 29 U.S.C. 653 (b) (9). 18. 7 U.S.C. 136 (1982). 19. 33 U.S.C. 1251 (Supp. v 1983).
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CHAPTER 5
PESTICIDE DRIFT AND RESULTANT LIABILITY
The use of pesticides on the farms and ranches of America has given rise to a myriad of lawsuits against applicators, those employing the applicators and even those recommending the use of pesticides.
Liability has been imposed even when the label instructions have been followed to the
letter. While liability has been imposed under a variety of legal theories, a common denominator in most cases has been damage caused by pesticide drift. Other situations such as direct application to the wrong crop and injuries to farm workers due to exposure too soon after application have also given rise to many lawsuits.
While it may not be possible in every situation to anticipate a potential liability, the
following materials are intended to make those persons subject to potential liability aware of those activities that may result in a lawsuit. The common law theories addressed in this chapter are introduced and discussed in Chapter 1.
Each state, generally through its courts, determines which theory of liability will apply for a given act, who may sue or be sued and the extent of the financial liability imposed. The law applicable in a particular state must be ascertained by referring to local statutes and court decisions or to attorneys licensed to practice law in that state.
Common Law Theories of Liability
Negligence. One is negligent if one neglects to do something that a reasonable person would do under like circumstances, or does something that a reasonable person would not do.
In general, the acting party has a duty to avoid creating situations which pose an
unreasonable risk of harm. In other words, if it is foreseeable that harm to person or property could result if due care isn't taken in carrying out a particular act or activity, then the acting party has a legal duty to perform that act with that level of care which a reasonably prudent person would exercise. This legal duty of care is owed to all who foreseeable may be harmed by a failure to exercise due care.
As noted in Chapter 4, the minimum level of care required of the actor can also be set by statute. Laws regulating the disposal of pesticide containers are used here again to demonstrate these statutory categories of negligence.
In some states, failure to comply with the disposal laws is treated as negligence per se The acting party will be found liable to those injured by the actor's failure to dispose of the containers as required by law whether or not that party proves that 100 other reasonable people would have disposed of the containers in the same manner under similar conditions. The only defense available is in proving that the containers were disposed of as required by the statute(s). Some states, however, treat the violation of such a statute as a presumption of negligence. In these states, if it can be demonstrated that the containers were disposed of in a reasonable manner, i. e., a reasonably prudent person would dispose of the containers in the same way under similar circumstances, then liability can be avoided. Still other states treat a violation of a statute as merely some evidence of negligence. Absent additional evidence demonstrating that the acting party in fact disposed of the containers in an unreasonable manner, liability probably would not be imposed.
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Negligent Applieation of Pesticides. In one case 1 the pesticide 2, 4-D was applied to a farmer's crop. Targeted crops were in close proximity to the crops of a neighboring landowner. Pesticide drift occurred, and the neighboring farmer's crops were extensively damaged.
Here, the court found both the applicator and the person directing the applicator (the
farmer) negligent. The court reasoned that the spraying, in light of the nature of the chemical applied, the method of application, and the weather factors present, caused an unreasonable risk of harm to the neighboring crops. In its decision the court found extensive crop damage foreseeable. Certain procedures could have been taken which, when coupled with common sense would have minimized the risk of negligence.
Nuisance. As discussed in Chapter 1, a nuisance is an unreasonable interference with the use and enjoyment of another's property interest in land. Before a court will rule that an individual committed a "legal nuisance", proof that the interference was done intentionally and was also unreasonable must be demonstrated.
Frequently, the act causing the interference needs to be more than a single occurrence. This is so, because duration is usually necessary to establish intent and the requisite degree of harm necessary to maintain an action for a nuisance. However, some states do not require duration (a nuisance action may be maintained for a single occurrence) if the harm suffered is substantial. Generally, if the interference results in actual damage to property as opposed to merely interfering with its use and enjoyment, an action for a nuisance maybe maintained regardless of the duration of the act causing the harm. An Arizona 2 case represents one court's treatment of a pesticide drift situation giving rise to such liability. There, an herbicide aerially sprayed for 25 minutes on a landowner's corn field drifted onto a neighbor's adjacent field and destroyed several bee hives.
The court found the applicator and the farmer hiring the applicator liable for the damages based on a combination of theories-including nuisance. Three factors influenced the court's findings:
1. Aerial spraying in Arizona of a potent herbicide was considered ultra-hazardous.
2. The pesticide was applied negligently.
3. The damage suf f ered as a result of the drift was substantial.
The court found the requisite intent necessary to impose liability under the nuisance theory. In its decision, the court stated that because the harm (suffered) was a foreseeable consequence of negligently spraying the herbicide and because the activity giving rise to the harm was extra-hazardous, those involved knew or should have known that an unreasonable interference was substantially certain to occur if due care was not taken. (The defendants knew, from past experience, that drift and damage would occur).
Notice how the facts can be interpreted to find liability under a particular theory. In general, if substantial harm results to a party not at fault for such harm, courts can always interpret facts to find liability under this or under another theory.
Trespass. Basically, a trespass is a typical invasion of another's property. In general, the trespass must be intentional to be actionable. Situations giving rise to liability under this theory would include:
-Applying chemicals or causing them to be applied directly to the land of someone not
giving permission for such an act regardless of whether the acting party believed the land was their own or that the land belonged to someone who had given such permission.
-Applying or causing or aiding an application of chemicals to crops so close to another's
adjoining property, or under such conditions that the acting party knows, or should know, that a trespass would occur or was substantially certain to occur.
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While the general rule for imposing liability for a trespass required the trespass to be
intentional, some states impose liability for unintentional trespasses if the trespass is a result of an ultra-hazardous activity. In past cases in some states, the aerial application of a toxic pesticide has been held an ultra-hazardous activity.
In the cases holding these activities to be ultra- or extra-hazardous, liability for
unintentional trespasses has been imposed on those actually applying the chemicals as well as those directing its use (i.e., farmers or ranchers who employ the applicators). To date, only applicators and landowners directing the use of toxic pesticides have been found liable.
One key factor that a court may examine in determining if liability will be imposed is in questioning how much responsibility an individual had in directing or in establishing the ultrahazardous activity.
Liability imposed for unintentional trespass arising from an ultra-hazardous activity is similar to the liability imposed by the Arizona court under nuisance; liability was imposed because an ultra-hazardous activity gave rise to an injury.
Strict Liability. As was noted in Chapter 1, liability under this theory is imposed strictly from the undertaking of an ultra-hazardous (high risk) act which as a result of this act, a foreseeable injury results.
Certain factors are used to judge whether a particular act should be classified as an ultrahazardous act. States may consider some or all of the following factors:
1. Whether the activity involves a high degree of risk of some harm to any persons or
land or property of others.
2. Whether the harm which may result is likely to be great.
3. Whether the risk of harm cannot be eliminated by the exercise of due care.
4. The value of the activity to the community.
5. Whether the activity is a matter of common usage.
For an activity to be held ultra-hazardous, some combination of the above factors must indicate that, while the activity is one which society does not want to ban overnight, the activity poses risks which cannot be eliminated or substantially minimized through the exercise of due care. As mentioned, among those activities previously found to be ultra-hazardous are the aerial application of toxic pesticides and, in some states, the mere use of toxic pesticides regardless of the method of application. Note, however, that as technology improves, some acts previously found to be ultra-hazardous may be judged subsequently not ultra-hazardous. In such cases, injuries resulting from these acts will have to be based on one of the other liability theories.
Oklahoma is an example of a state using this theory of liability when an injury results
from the undertaking of an ultra-hazardous act vity. In Oklahoma the mere use of an herbicide is considered to be an ultra-hazardous activity. Oklahoma courts have imposed liability on an individual using or directing the use of an herbicide when such use has resulted in foreseeable injury to third parties (injuries to persons or property). The foreseeable injuries in these cases were the destruction of crops on property adjoining the targeted property.
Statutory Liability.
Farmers, applicators, and those recommending use of a pesticide are subject to both civil and criminal liability under the provisions of FIFRA (see Chapter 1). While some penalties for certain violations are excluded from applying to public employees who commit these violations during the course of their employment, other penalties for certain violations will apply even to publicly employed persons.
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State laws generally govern liability for violations of state pesticide regulatory provisions. To ascertain liability in your state, local and state acts must be examined.
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Citations
1. Burke v. Thomas, 313 P. 2d 1082 (Okla. 1957).
2. S. A. Gerraro Company v. Fricker, 27 P. 2d 678 (Ariz. 1933).
3. Young v. Darter, 363 P. 2d 829 (Okla. 1961).
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CHAPTER 6
TREATED SEED
The use of pesticide treatments on seed for fungicidal and other purposes has increased in recent years. This chapter addresses the federal statutes and regulations controlling the movement of treated seed in commerce, as well as the common law liabilities that may arise from the improper handling or disposition of treated seed.
The Federal Seed Act and Regulation of Treated Seed
The Federal Seed Act 1 governs interstate and foreign commerce in agricultural or
vegetable seeds for seeding purpos!1. Through the broad definition given "interstate commerce" by both the Federal Seed Act itself as well as by the courts, almost any commercial transaction can be construed as interstate. Thus the Federal Seed Act can for all practical purposes be considered as regulating (with certain exceptions noted below) all transportation and marketing of agricultural and vegetable seed for seeding purposes, regardless of whether the activity actually crosses state lines.
The Federal Seed Act establishes requirements for the labeling and record-keeping of seed products with the intent of providing consumers with complete information on the kind, variety, quantity, treatment and quality of the seeds and to prevent the introduction of misbranded or adulterated seed into commerce.
The labeling and record-keeping provisions of the Act do not apply to carriers merely
transporting seed and not themselves engaged in seed processing or merchandising. Neither do the provisions apply to seeds produced by farmers on their own premises and sold by them directly to consuls ers, provided the farmer is not engaged in the business of selling seed not produced by him.
The labeling provisions of the Act do not apply to seeds not intended for seeding purposes when those seeds are transported in ordinary channels of commerce usual for such seed or grain intended for manufacture or for feeding. Seed not intended for seeding purposes may, however, come under the regulation of the Federal Food, Drug and Cosmetic Act if it has been treated, as discussed below.
Seeds transported in bulk are excepted from the labeling requirements of the Federal Seed Act provided the required information is contained in the invoice. If seed is transported in containers and in quantities of 20,000 pounds or more, the individual containers need not contain the required information as long as sucq information is recorded in the invoice and each container is marked with a lot number.
Violation of the Act or its regulations subjects the violator to a civil penalty of not less than $25 or more than $500 for each violation. Any person who knowingly, or as a result either of gross negligence or of a failure to make a reasonable effort to inform himself of the pertinent facts, violates any provision of the Act or its regulations, shall be deemed guilty of a misdemeanor and, upon conviction, subject to a fine of not more than $1,000 for 5 the first offense, and upon conviction for each subsequent offense not more than $2,000.
Labeling and Record-keeping Requirements for Treated Seed
Labeling. As defined by the Act, treated seed means seed given an application of a
substance or subjected to a process designed to reduce, control, or repel disease organisms,
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insects or other pests which attack seeds or seedlings growing therefrom. Any agricultural or vegetable seed, for seeding purposes, that has been treated must be labeled according to the provisions of 7 C.F.R. Part 201.
Records. The Federal Seed Act requires all persons transporting or delivering for
transportation, in interstate commerce, agricultural seeds to keep a complete record for three years of the origin, treatment, germination, and purity of each lot of seeds. All persons transporting, or delivering for transportation, in interstate commerce, vegetable seeds must keep for three years a complete record of treatment, germination and variety of such vegetable seeds. USDA officials havg the authority to inspect these records in the enforcement and administration of the Act.
The complete record for any lot consisting of or containing treated seed must include: (1) records necessary to disclose the name of any substance or substances used in the treatment of such seed, (including a label or invoice or other document received from any person establishing the name of any substance or substances uspd in the treatment to be as stated), and (2) a representative sample of the treated seed.
FDA Regulations for 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 destined for use in human or animal food of ten with disastrous results. 8Perhaps the best known case is First National Bank v. Nor-Am Agricultural Products, Inc.8 There, a farmer buying seed for hogs from a distributor asked for and was given without charge a quantity of surplus seed that had been treated with a highly toxic mercuric fungicide. The mercury accumulated in the body of the hog which was then slaughtered and eaten by family members resulting in serious permanent 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 means used to communicate the warning (i.e., the tag and label) were inadequate. The manuaf acturer was held liable for the injuries.
In response to such accidents, the Food and Drug Administration (FDA) issued regulaIvons bringing certain food seeds under the control of the, federal Food, Drug and Cosmetic Act. Regulations issued under this Act and under FIWVA1 specify tolerances for certain pesticide residues on food and agricultural commodities.,L Any food not meeting the pesticide tolerances or any other standails established by the Federal Food, Drug and Cosmetic Act constitutes an "adulterated foodit. 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 itself through civil proceedings.
The FDA regulations addressing treated seed governs food seeds such as wheat, corn, oats, rye, barley, and sorghum that have been treated with any poisonous substance in excess of the tolerances recognized in 40 C.F.R. Part 180 or a treatment for which no tolerance or exemption from tolerance is recognized. Seeds so treated must be stained or otherwise colored so as to make them readily apparent if they are nff ~ed with untreated seeds. A suitable color for staining is one that is not easily removed and is in sufficient contrast to the natural color of the food seed so as to make the treated seeds readily distinguishable from untreated seeds.
Any interstate shipment of treated seeds not stained as required by these provisions
constitutes adulterated food and subjects the persons responsible to the penalties of the Food, Drug and Cosmetic Act. The regulations also note that treated seeds packaged for household use require additional labeling precautions as provided by the Hazardous Substances Act.'t,
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Citations
1. 7 U.S.C. 1551 (1982).
2. Id. at 1561 (a) (3)-(4). 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 merchandizing of seeds,
whereby such seeds are sent from one State with the expectation that they will end their
transit 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 the 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.
3. 7 U.S.C. 1573 (a). 4. Id. at 1573 (b) (2).
5. Id. at 1596. 6. Id. at 1572.
7. 7 C.F.R. 201.7a (1983).
8. 88NM 74, 537 P. 2d 682 (N. M. Ct. App. 1975), cert. denied, 88 NM 29, 536 P. 2d 1085 (N.
M. 1975).
9. 21 U.S.C. 301 (1976). 10. 7 U.S.C. 136 (1982). 11. 40 C.F.R. Part 180 (1983). 12. 21 U.S.C. 342 (1976). 13. 21 C.F.E 2.25 (1983). 14. 15 U.S.C. 1251 (1982).
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NOTES
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NOTES
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NOTES
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This public document was promulgated at a cost of $2,641 .00, or 88 cents per copy, to provide information about regulation of agricultural pesticides. 1 1-3M-84
COOPERATIVE EXTENSION SERVICE, UNIVERSITY OF FLORIDA, INSTITUTE OF FOOD AND AGRICULTURAL SCIENCES, K. R. Tefertilier, director, In cooperation with the United States Department of Agriculture, publishes this Information to further the purpose of the May 8 and June 30, 1914 Acts of Congress; and Is authorized to provide research. educational Information and other services only to Individuals and Institutions that function without regard to race, color, sex or national origin. Single copies of Extension publications (excluding 4-H and Youth publications) are available free to Florida residents from County Extension Offices. Information on bulk rates or copies for out-of-state purchasers Is available from C. M. Hinton, Publications Distribution Center, WFAS Building 664, University of Florida, Gainesville, Florida 32611. Before publicizing this
pulction, editors should contact this address to determine availability.




Full Text

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REGULATIONS GOVERNING THE USE OF AGRICULTURAL PESTICIDES Pesticide Impact and Assessment Project Manual No. 3 Michael T. Olexa, Alan E. McMichael, and Alan H. Daniels Co-Principal Investigators: Professor James S. Wershow Agricultural Law Department of Food and Resource Economics Professor Grover C. Smart, Jr. Nematologist Department of Entomology and Nematology Supported in Part by a Grant from the National Agricultural Pesticide Impact Assessment Program Extension Service, USDA Food and Resource Economics Department Institute of Food and Agricultural Sciences University of Florida Gainesville, Florida



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CHAPTER 3 WATER POLLUTION BY PESTICIDES Through the Federal Water Pollution Control Amendments (FWPCA) of 1972, 1 the federal government established a strategy to end water pollution. As stated in the declaration of goals and policy, the objective of the law was that of restoring and maintaining the chemical, physical, and biological integrity I~ the nation's water. FWPCA was later broadened by the Clean Water Amendment of 1977. This Act gave the federal government the authority to regulate discharges of pollutants into the nation's waters in an effort to eliminate all such discharges by 1985. The EPA was delegated broad authority over the surface and subsurface waters of the United States, extending to the oceans, tidal creeks, and even dry spillstreams that flow only during heavy rainfalls. -Significance to Agriculture Pesticides entering into a body of water are considered to be a pollutant. FWPCA categorizes sources of water pollution as point and non-point. Point Source A point source is defined as any discernible, confined and discrete conveyance.4 For example, a pipe carrying wastes which discharges such wastes directly into a river is a point source of pollution. Agricultural operations designated as point sources of pollution include dairy product processing, grain mills, processing canned and preserved fruits and vegetables, feedlots, processing timber products and fertilizer manufacturing. Operators of these and other point sources of pollution must apply for an EPA Pollution Discharge permit and comply with its terms, and additionally, conform to applicable national standards of performances However, only those operations initiated after publication of the federal regulations which set the performance standards need comply. TI 4e applicable regulations and their dates of enactment are in the Code of Federal Regulations. All point source operations, new or old, must apply for a discharge permit before any point source can legally discharge a pollutant. Application is generally made through the appropriate state's Department of Enviromental Regulation if that state has an approved permit program. If not, the application must be made through the EPA. Under tI~p 1977 amendments, return flows from irrigated agriculture are not by definition point sources. Statutory Stan~ards. Two standards, differing in rigidity, can be imposed on point sources of water pollution. -Best Available Demonstrated Control Technology or Operating Method. This is the standard applicable to agricultural point source pollutants. It is not a rigid standard. It can vary depending upon the particular facts peculiar to a given farm operation. Exemptions may be granted upon application to the EPA or state enforcement body. All agricultural operations that constitute point sources of pollution must adopt the required method or technology. -Best Available Technology Economically Achievable. This is the initial standard applied to those operations which discharge toxic pollutants. Eventually, these pollution sources must adopt the Best Conventional Pollutant Technology. These standards cannot be defined. Rather, the EPA proposes standards which they feel meet these definitions and those disagreeing may submit their comments. The EPA is also authorized to ban outright discharges of a class of toxic pollutants. -16



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Enforcement. The states, upon approval by the EPA, become the primary enforcement body. In the event a state fails to act, the federal government enforces the Clean Water Act provisions. Operators of point sources are required to: maintain operational records, make reports, install, use, and maintain certain monitoring equipment or methods, and take samples. As may be required by the enforcement agency, those enforcing this Act have the right to enter and inspect any point source operation. The enforcement officials have the option to bring a civil suit against a violator or issue an order to seek compliance. Civil fines can range up to $10,000 per day for a willful or negligent violation. Fines range from $2,500 to $25,000 per day plus up to one year imprisonment. The courts also have Te right to halt immediately any operations which cause pollutants to be illegally discharged. Non-point source. A non-point source is an operation w i6h discharges pollutants into waterways without having an identifiable "point" of discharge. For example, all agricultural activities producing run-of f entering into waterways are non-point sources. A farmer who sprays his fields with a pesticide will be operating a non-point source of pollution, if when it rains, run-off containing pesticide residue enters a stream, creek, river or lake. At this time, however, there are no federal standards controlling the discharge of pollutants by these sources, nor are there applicable national performance standards if the pollutant discharges are not considered to be toxic. Exceptions may exist within the states, and the reader is encouraged to consult appropriate state laws. Certain pollutants are designated as toxic by the EPA. The standards applicable to toxic pollutant discharge are more stringent than those applicable to non-toxic substances. A lifl of all substances currently designated as toxic are listed in the Code of Federal Regulations. -17-



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Citations 1. 7 U.S.C. 136 (1982). 2. 42 U.S.C. 6901 (1976). 3. 40 C.F.R. 165 (1983). 4. 42 U.S.C. 6901. 5. Id. at 6903 (5). 6. 40 C.F.R. 261.3. 7. A generator is any person by whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation. 40 C.F.R. 260.10. 8. Id. at 261.7 (a). 9. Id. at 261.7 (b). 10. 42 U.S.C. 6928. 11. Id. at 6972. 12. 40 C.F.R. 262.51. 13. The EPA has initiated action to eliminate any inconsistencies between the disposal procedures indicated on product labeling and the disposal procedures required by the hazardous waste management regulations. See EPA Proposed Regulation Notice 83-3, March 29, 1983. After 1984 the labeling instructions will indicate disposal procedures that comply with both FIFRA an RCRA. Until then it is recommended that the applicator follow the container disposal procedures indicated on the product labeling, regardless of whether the container has been emptied in accordance with the hazardous waste regulations. 14. 40 C.F.R 261.5. 15. Id. at 262.51. 16. Id. at 262.5 (g). 17. Id. at 261.5 (c). 18. 7 U.S.C. 136f (b). 19. Id. at 136g. 20. 40 C.F.R. 261.5 (e). 21. 42 U.S.C. 6928 (d). 22. Id. at 6927 (a). -14-



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Chemigation ChTgigation refers to the application of crop management materials through irrigation systems. Injection of crop management materials such as fertilizers and agrichemicals into an irrigation system which is not carefully designed and safely managed can result in serious groundwater contamination and legal consequences of significant magnitude. Application of safety equipment in preventing back-flow will substantially reduce the problems of contamination and subsequently the risks of exposure to liability. Safety equipment is available that, when properly installed, can prevent back-flow and subsequent groundwater contamination. Presently, federal law has not specifically mandated the use of these safety devices. Addj1onally, few states have adequate laws, if any, requiring the installation of safety equipment. Nevertheless, agriculturalists should consult state laws and local ordinances which in some instances may mandate the installation of equipment for back-flow prevention. Farmers seeking information on the installation and nlyntenance of back-flow preventors should contact their respective state extension agents. Although the farmer cannot be completely shielded against exposure to legal liability, the installation of safety equipment will reduce such exposure. It is presently estimated that the averagelxpense of such installation is less than one percent of the total cost of the irrigation system. Additional safeguards may include: the requirement 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 phytotoxicity in the preparation of chemical application schedules and dosage rates; following explicity, calculated and recommended dosage rates; sound soil conservation; consultation with legal counsel on the advisability of purchiing workman's compensation insurance coverage and purchase of chemical liability insurance. By definition, chemigation woqlg arguably be categorized as a point source of pollution and subject to the Clean Water Act. Additionally, the common law actions of trespass, negligence, nuisance and strict liablity as described in Chapter 1, may be levied against farmers for contaminating groundwater via chemigation. Future Prospects Due to expansive federal jurisdiction over the nation's water-ways, agricultural operations which entail the application of fertilizers and pesticides would likely be classified as non-point water pollution sources as defined by the Clean Water Act. "Water-ways" is so broadly defined as to include almost every potential depression in which water is or may be carried. As noted, agricultural operations classified as non-point sources of pollution are generally not yet under the rigid standards imposed by the Clean Water Act. The EPA, however, does retain the authority to develop and impose standards on non-point source operations. Farmers should stay abreast of any new developments through county extension agents or by contacting their state Environmental Regulatory Agency. -19-



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CITATIONS 1. 7 U.S.C. 136 (1982). 2. U.S. v. Corbin Farm Service 444 F.Supp. 510 (E. D. CA 1978); George's Pest Control Service v. EPA 572 F.2d 204 (9th Cir. 1977). 3. 7 U.S.C. 136j(2)(G). 4. Id. at 136j(2)(A). 5. The term "to use" has been defined by regulation to include any application, storage, or disposal of pesticide products. 40 C.F.R. 162.3 (oo). 6. 7 U.S.C. 136(ee). 7. Id. at 136i. 8. Id at 1361. 9. Id. at 136(e)(2). 10. Id. See S. Rep. No. 146, 96th Cong., 1st Sess. 7. 11. 7 U.S.C. 136(e)(3). 12. 40 C.F.R. 262.51. 13. 50 C.F.R. 165.2 (c)-(e). 14. 40 C.F.C.R. 261.5. 15. Id. 16. 7 U.S.C. 136(e)(2)-(3). 17. Id. at 1361. 18. 7 U.S.C. 1361(b)(4) provides "When construing and enforcing the provisions of this subchapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any person shall in every case be also deemed to be the act, omission or failure of such person as well as that of the person employed." 19. Id., "Knowingly" has been defined as intending to do the actions constituting the violation; a specific intent to violate the law or a knowledge of the regulation is not a necessary element of the crime. U.S. v. Corbin Farm Service supra n. 2. 20. 7 U.S.C. 1361(b)(2). 21. Id. at 1361(a)(4). 22. 1361(a)(5). 23. 42 U.S.C. 6901. -7-



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Penalties for Private Applicators. Private applicators who use a pesticide in a manner inconsistent with its labeling are subject to receiving a written warning or citation from the EPA. Subsequent violations are punishable by a civil penalty of not more than $1,000 for each offense. Private applicators or other persons who provide a service of pesticide application for others, but who are not commercial applicators, registrants, dealers, or distributors, may be assessed a civil penalty of not more than $500 f or the f irst of fense instead of a written warning or citation. Subsequent violations are punishable by civil penalties of not more than $1,000 for each offense. Before any civil penalty is assessed, the person charged is given notice and an opportunity for a hearing on the charge in the county or city where the person resides. In determining the amount of the penalty, EPA considers the appropriateness of the penalty to: -The size of the business of the person charged, -The ef fect on the person's ability to continue in business, -The gravity of the situation. If the agency finds that the violation occurred despite the exercise of due care or did not cause significapg harm to health or the environment, EPA may issue a warning instead of assessing a penalty. Private applicators arr8liable under FIFRA for the acts or omissions of persons acting for them or employed by them. This means that if a person acting for or employed by a farmer violates the provision of the statute, the farmer, as well as the person who violates the statute, is subject to assessment of a penalty. Private applicators 1W e also subject to criminal penalties for knowingly violating any provisions of the statute. Knowingly violating the statute is a misdemeanor, punishable upon convi~hion by a fine of not more than $1,000, or imprisonment for not more than 30 days, or both. Private applicators are also subject to criminal penalties for the knowing violation of persons acting for or employed by them. Penalties for 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. A person charged with violation of the act must be given notice and an opportunity for a hearing before assessment of the penalty. In determining the amount of the penalty, the EPA will consider: -The appropriateness of the penalty to the size of the business of the person charged; -The effect on the person's ab~jity to continue in business, and; -The gravity of the violation. Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who knowingly violates a provision of FIFRA shall be guilty of a misdemeanor and shall on conviction be fined not more than $25,000, or imprisoned for not more than one year, or both. The act or omission of anyone acting 19r or employed by the applicator will be considered to be the act or omission of the applicator. No provision exists for the private citizen to bring suits for violation of FIFRA; thus suits by other than the EPA for improper pesticide application, storage or disposal must be brought under common law theories of liablilty. These common law theories are discussed later in this chapter. The Resource Conservation and Recovery Act The storage, transportation and disposal of hazardous wastes is governed by the hamrdous waste management provisions of the Resource Conservation and Recovery Act (RORA). Pesticides and pesticide containers containing residues are considered hazardous wastes. -3-



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Motor carriers transporting hazardous materials, including pesticides, across state lines must have special insurance coverage. Private carriers transporting purely within the borders of a single state are exempted from this requirement provided the transport vehicle has a gross vehicle weight of less than 10,000 lbs. If the vehicle is a tank truck it must have a tank capacity of less than 3,500 water gallons capacity (regardless -of the actual quantity of material transported) to be exempted from the insurance requirement.3 Common Law Liability for Pesticide Storage and Disposal In addition to statutory or regulatory violations, a farmer or rancher may become liable for improper pesticide storage and disposal in a suit for trespass, nuisance, negligence, or strict liability. These common law actions are discussed in Chapter 1. -13-



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Negligent Applieation of Pesticides. In one case 1 the pesticide 2, 4-D was applied to a farmer's crop. Targeted crops were in close proximity to the crops of a neighboring landowner. Pesticide drift occurred, and the neighboring farmer's crops were extensively damaged. Here, the court found both the applicator and the person directing the applicator (the farmer) negligent. The court reasoned that the spraying, in light of the nature of the chemical applied, the method of application, and the weather factors present, caused an unreasonable risk of harm to the neighboring crops. In its decision the court found extensive crop damage foreseeable. Certain procedures could have been taken which, when coupled with common sense would have minimized the risk of negligence. Nuisance. As discussed in Chapter 1, a nuisance is an unreasonable interference with the use and enjoyment of another's property interest in land. Before a court will rule that an individual committed a "legal nuisance", proof that the interference was done intentionally and was also unreasonable must be demonstrated. Frequently, the act causing the interference needs to be more than a single occurrence. This is so, because duration is usually necessary to establish intent and the requisite degree of harm necessary to maintain an action for a nuisance. However, some states do not require duration (a nuisance action may be maintained for a single occurrence) if the harm suffered is substantial. Generally, if the interference results in actual damage to property as opposed to merely interfering with its use and enjoyment, an action for a nuisance maybe maintained regardless of the duration of the act causing the harm. An Arizona 2 case represents one court's treatment of a pesticide drift situation giving rise to such liability. There, an herbicide aerially sprayed for 25 minutes on a landowner's corn field drifted onto a neighbor's adjacent field and destroyed several bee hives. The court found the applicator and the farmer hiring the applicator liable for the damages based on a combination of theories-including nuisance. Three factors influenced the court's findings: 1. Aerial spraying in Arizona of a potent herbicide was considered ultra-hazardous. 2. The pesticide was applied negligently. 3. The damage suf f ered as a result of the drift was substantial. The court found the requisite intent necessary to impose liability under the nuisance theory. In its decision, the court stated that because the harm (suffered) was a foreseeable consequence of negligently spraying the herbicide and because the activity giving rise to the harm was extra-hazardous, those involved knew or should have known that an unreasonable interference was substantially certain to occur if due care was not taken. (The defendants knew, from past experience, that drift and damage would occur). Notice how the facts can be interpreted to find liability under a particular theory. In general, if substantial harm results to a party not at fault for such harm, courts can always interpret facts to find liability under this or under another theory. Trespass. Basically, a trespass is a typical invasion of another's property. In general, the trespass must be intentional to be actionable. Situations giving rise to liability under this theory would include: -Applying chemicals or causing them to be applied directly to the land of someone not giving permission for such an act regardless of whether the acting party believed the land was their own or that the land belonged to someone who had given such permission. -Applying or causing or aiding an application of chemicals to crops so close to another's adjoining property, or under such conditions that the acting party knows, or should know, that a trespass would occur or was substantially certain to occur. -28-



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Citations 1. Pub. L. 92-500, 86 Stat. 816 (1972), now codified as 33 U.S.C. 1251 et seq. (Supp. V. 1982). 2. 33 U.S.C. 1251. 3. Pub. L. 95-217 (1977), 91 Stat. 1566 et seq. 4. 33 U.S.C. 1362 (14). 5. 33 U.S.C. 1342. Enforcement is mandated through the National Pollution Discharge Elimination System (NPDES). 6. 40 C.F.R. Part 400-460 (1983). 7. 33 U.S.C. 1362 (14) as amended by Pub. L. 95-217 Section 33 (b), 91 Stat. 1577 (1977). 8. 33 U.S.C. 1311. 9. Id. at 1364. 10. Montgomery, Control of Agricultural Water Pollution: A Continuing Regulatory Dilemma. 1976 U. Ill. L.F. 535-541 (1976). 11. 40 C.F.R. 129.4 (1983). 12. 42 U.S.C. 300f et seq. (Supp. V 1982). 13. Id. at 300h-3 (c). 14. Id. at 300j-8 (e). 15. Chalfant, R. B. and J. R. Young, Chemigation, or Application of Insecticide Through Overhead Sprinkler Systems, to Manage Insect Pests Infesting Vegetable and Agronomic Crops. 75 J. Econ. Entomol. 237-241 (1982). 16. Georgia is one of a few exceptions. Rules of Georgia Department of Agriculture. Prevention of Ground and Surface Water Contamination. CH. 40-23-2 "Anti-Syphon Device". 17. Smajstrla, A. and D.S. Harrison, Chemigation Safety, Agricultural Engineering Fact Sheet. AE-28 Florida Cooperative Extension Service, IFAS, University of Florida, Gainesville, Florida. 18. Interview with D. S. Harrison, Agricultural Engineering Department, University of Florida, Gainesville, Florida (September, 1983). 19. Davis, C. L. 1981. "Liability Considerations In Chemigation." National Symposium on Chemigation p. 114. 20. Since many labels call for the installation of back-flow preventors prior to application of the respective agrichemical, the reader should also follow label instructions. Failure to do so is in violation of FIFRA Secton 12 (a) (2) (G) "use inconsistent with the labeling." -20-



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CHAPTER 2 STORAGE AND DISPOSAL OF PESTICIDES AND PESTICIDE CONTAINERS Farmers and commercial pesticide applicators are subject to specific legal responsibilities for the proper storage and disposal of pesticides and pesticide containers. Statutory and regulatory requirements enacted by Congress and Federal regulatory agencies play a major role in this area of pesticide regulation. The EPA has the primary responsibility for enforcement. The E A has published regulations concerning pesticide storage and disposal in accordance with FIFRA the primary statute governing the distribution and use of pesticides. Additional regulations concerning the disposal of waste pesticides and containers have been established under the hazardous waste management provisions of the RCRA. Labeling Instructions Each registered pesticide product, whether general or restricted use, contain3 brief but explicit instructions in its labeling regarding storage and disposal. The applicator must follow these instructions carefully and insure that all persons working for him follow them as well. 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. These procedures are not mandatory, but are recommended as extremely useful guides for safe storage and disposal. The procedures recommended apply to all pesticides, both general use and restricted use products, and address the needs of both private and commercial applicators. 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. Nor do they apply to single containers of pesticides used on farms and ranches which may be disposed of by open field burial with due regard for the protection of surface and sub-surf ace waters. Hazardous Waste Regulations Relating to Pesticides and Containers Although FIFRA controls federal regulation of pesticide use, including application, storage, and disposal, there are circumstances whereby the disposal of pesticides and pesticide containers comes under the purview of the hazardous waste management regulations pursuant to RCRA. Waste pesticides and containers constitute solid waste under RCRA.5 Individual pesticide products and their containers and residues constitute hazardous solid waste by virtue of meeting the characteristics of hazardous waste specified in 4%C.F.R. 261 Subpart C or appearing on th~ lists of hazardous wastes in 40 C.F.R. 261 Subpart D. It is the responsibility of the generator of the solid waste to determine whether the waste constitutes a hazardous waste under the regulations. A generator has the opportunity under 40 C.F.R. 260.22 to petition the EPA for exclusion of a particular waste from the hazardous waste regulations. Most registered pesticides, containers and residues come within the hazardous waste category of Subpart D, section 261.33 "Discarded commercial chemical products, offspecification species, containers, and spill residues thereof.! Pesticide containers, inner liners, and any residues are subject to the hazardous waste regulatory provisions unless the containers -9-



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is needed to develop information needed to support an application for registration. An unregistered pesticide may be made available to combat some emergency upon application by a state agency, usually the state commissioner of agriculture. FIFRA Regulations for Pesticide Applicators The heart of the FIFRA regulatory scheme for pesticide application, storage and disposal is the provision for detailed instructions contained within the labeling of each registered pesticide product. Labeling instr ytions are considered by the courts to be legislative regulations with the force of law. Th Y s, it is unlawful "1... to use any registered pesticide in a manner inconsistent with its labeling." "Labeling" refers not only to the label printed on or attached to the pesticide product or its container, but also to any literature referred to on the label or in accompanying literature. It is unlawful ;to detach, alter, deface or destroy the pesticide labeling. The ter 91 "to use any registered pesticide in a manner inconsistent with its labeling" means to use any registered pesticide in a manner not permitted by the labeling. However, there are uses that, while not explicitly permitted by the labeling, are not considered to be inconsistent with the labeling. These uses include: -Application of a registered pesticide at a dosage, concentration, or frequency less than that specified on the labeling. -Applying a pesticide against a target pest not specified on the labeling as long as the application to the crop, animal or site is permitted by the labeling. -Employing any method of application not prohibited by the labeling.6 -Mixing a pesticide with a fertilizer when the mixture is not prohibited by the labeling.6 The labeling of each registered pesticide product, whether for general or restricted use, contains brief but explicit directions for proper application, storage and disposal of the container. The applicator must ensure that these instructions are followed carefully. FIFRA directs the EPA to establih different standards for private and commergial applicators in regard to record keeping and provides for civil and criminal penalties. A private applicator is a certified applicator who uses, or supervises the use of, restricted use pesticides for purposes of producing any agricultural commodity on property owned or rented by him or his employer, or on the property of another person provided the application is not for compensation. The exchange of personal services between producers of agricultural commodities is not considered "compensation.? Thus if a farmer treats a neighbor's field and is repaid by some pern8nal service performed by the neighbor, the farmer is still considered a private applicator. A commercial applicator is a certified applicator who uses, or supervises the use of, restricted use pesticides for any purpose or on any property other than that described for private applicators. Generally, any application on the property oflothers for compensation other than personal services constitutes commercial application. IIn addition, agency regulations for pesticide storage and container dispoif provide special provisions and expectations for fmers applying pesticides for their own use, persons storing or disposing of single containers, and "small quantity generators? of hazardous waste.4 A general distinction exists through FIFRA and related statutes between private applicators and commercial applicators, based on either the quantity of pesticides or containers involved or whether the application is private or for compensation. The private applicator should be aware, however, that he may become subject to regulations aimed at commercial ap1licators by virtue of exceeding the specified quantities of stored or discarded hazardoutewaste or by applying registered pesticides for other than his own use or for compensation. -2-



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Citations 1. Burke v. Thomas, 313 P. 2d 1082 (Okla. 1957). 2. S. A. Gerraro Company v. Fricker, 27 P. 2d 678 (Ariz. 1933). 3. Young v. Darter, 363 P. 2d 829 (Okla. 1961). -31-



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Although the hazardous waste regulations provide some exceptions for farmers using pesticides on their own land and for very small quantities of hazardous wastes, there are nevertheless circumstances in which a pesticide applicator will be subject to the regulations. Generally, a commercial applicator or a private applicator using large quantities of pesticides must comply with the hazardous waste regulations of RCRA. The hazardous waste regulations are discussed in greater detail in Chapter 2, which deals with the storage and disposal of pesticides and pesticide containers. Other federal statutes of potential relevance to pesticide use are introduced in the following chapters dealing with aspects of pesticide handling and application. Common Law Actions In addition to statutory or regulatory violations, a farmer or commercial pesticide applicator may be held liable for improper pesticide use in a common law action, or "lawsuit" as it is commonly known. These actions are for civil wrongs, or torts, and are initiated by the person (the plaintiff) who has suffered some injury to person or property as a result of the acts or omissions of another (the defendant). Common law actions do not depend upon the statutes for their authority. The common law derives from centuries of Anglo-American customs and traditions that have been incorporated into judicial rules for settling disputes. The common law varies somewhat from state to state and thus can be discussed only in general terms. This section briefly characterizes the four principal common law areas under which a farmer or commercial applicator may become liable for improper pesticide use. Specific examples demonstrating the applicability of these principals are developed throughout the text. Trespass Trespass is any unauthorized entry onto the property of another by some physical, tangible agency, either person or thing. Trespass actions serve to protect the interest of possessors in the exclusive possession of land. To constitute trespass, the entry must be either intentional or, if unintentional, caused by the defendant's recklessrTis or negligence or the result of the defendant's carrying on an ultra-hazardous activity. Intentional Trespass. If the unauthorized entry is intentional, the defendant is strictly liable regardless of whether the trespass actually caused any harm and almost regardless of the defendant's reason or justification for the entry. The plaintiff is entitled to at least nominal money damages for intentional trespass and may obtain an injunction against any threatened or continuing trespass onto his land. Entry by anything tangible can constitute trespass; fine particulate matter, water droplets, even gases. Moreover, the courts are quite willing to enjoin the defendant from future trespassory acts if continued injury to land is threatened, regardless of how beneficial the defendant's activity or how slight the plaintiff's injury. Pestici e use could result in liability for trespass if the pesticides, 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 trespassory agent enter onto the plaintiff's land. It is enough if the actions that result in the trespass are intentional. Thus, intentional disposal in a manner that eventually results in trespass constitutes trespass. Unintentional Trespass. If the trespass is unintentional the defendant is liable only for harm caused by his reckless, negligent or ultra-hazardous acts. Ultra-hazardous activities are -4-



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those considered by the courts to present such unwarranted and exceptional risks that the defendant is strictly liable for any injury resulting from the activity regardless of whether he was negligent or at fault in any way. Examples are activities involving wild animals, explosives, and dangerous chemicals including, in some states, pesticides. An example of unintentional trespass would be where theft, vandalism, or a natural disaster caused the pesticides to become deposited on another's land. In such a case, the defendant would be liable only if his negligent or reckless acts or omissions led to the intentional trespass, for example failing to provide reasonable protection against such an occurrence. If the courts of the state have characterized pesticide handling as an ultrahazardous activity, then the defendant is strictly liable for the trespass regardless of whether he was negligent, reckless or at fault in any way. Nuisance While trespass involves a violation of another's property rights, nuisance can be distinguished from trespass in that it consists of a use of one's own property so as to cause injury to others. The term nuisance includes two somewhat different common law actions. Nuisances are categorized as either private or public, depending upon whether the nuisance af fects the rights of the public or the rights of an individual exclusively.Y Public Nuisance. A public nuisance is an unreasonable interference with a right common to the general public. Factors considered in determining that an interference is unreasonable include whether the conduct involves a significant interference with the public health, safety, peace, or comfort and convenience; whether the activity is proscribed by a law or regulation; or whether the conduct has continuing or long-lasting significant effects on the public right and the defendant knows or has reason to know of the significance of the effects. Because public nuisance protects the public right, only the "public", in the form of a public official or individuals joined in a class action, may obtain an injunction against the nuisance. An individual can recover money damages f rom the def endant if his injury is diff erent in kind f rom that suffered by the public. An example of a public nuisance involving pesticides would be where storage, use or disposal had a significant effect upon water quality, thereby interfering with the public right to safe drinking water. A public official or individuals joined in a class action would then obtain an injunction against the activity creating a nuisance. An adjacent landowner may recover damages from the def endant if, in addition to the interference with his right to safe drinking water, the landowner suffered the loss of his livestock from the defendant's actions. Private Nuisance. A private nuisance is a non-trespassory invasion of another's interest in the private use and enjoyment of land. No physical invasion is required as in trespass, only a substantial interference with the possessor's enjoyment of his land, such as undue noise or an unsightly appearance. To constitute private nuisance, the invasion must be wrongful. An invasion may be wrongful in one of 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 the injury to the plaintiff. Second, the invasion may be wrongful because it results from negligence, recklessness, or extra-hazardous activitives, the same as in trespass actions. A possessor of land who has suffered a substantial interference with his right of use and enjoyment may obtain both money damages and an injunction against the defendant. The private nuisance action is not as strict as trespass. Here, the court may consider both the value of the offending activity and the substantiality of the interests that have been invaded. For this reason, a plaintiff will normally prefer to bring a trespass action. Nuisande actions are usually brought in cases where a trespassory physical entry cannot be established. if, for example,. improper pesticide use resulted in potentially dangerous odors being carried onto adjacent -5-



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CHAPTER 6 TREATED SEED The use of pesticide treatments on seed for fungicidal and other purposes has increased in recent years. This chapter addresses the federal statutes and regulations controlling the movement of treated seed in commerce, as well as the common law liabilities that may arise from the improper handling or disposition of treated seed. The Federal Seed Act and Regulation of Treated Seed The Federal Seed Act 1 governs interstate and foreign commerce in agricultural or vegetable seeds for seeding purpos!1. Through the broad definition given "interstate commerce" by both the Federal Seed Act itself as well as by the courts, almost any commercial transaction can be construed as interstate. Thus the Federal Seed Act can for all practical purposes be considered as regulating (with certain exceptions noted below) all transportation and marketing of agricultural and vegetable seed for seeding purposes, regardless of whether the activity actually crosses state lines. The Federal Seed Act establishes requirements for the labeling and record-keeping of seed products with the intent of providing consumers with complete information on the kind, variety, quantity, treatment and quality of the seeds and to prevent the introduction of misbranded or adulterated seed into commerce. The labeling and record-keeping provisions of the Act do not apply to carriers merely transporting seed and not themselves engaged in seed processing or merchandising. Neither do the provisions apply to seeds produced by farmers on their own premises and sold by them directly to consuls ers, provided the farmer is not engaged in the business of selling seed not produced by him. The labeling provisions of the Act do not apply to seeds not intended for seeding purposes when those seeds are transported in ordinary channels of commerce usual for such seed or grain intended for manufacture or for feeding. Seed not intended for seeding purposes may, however, come under the regulation of the Federal Food, Drug and Cosmetic Act if it has been treated, as discussed below. Seeds transported in bulk are excepted from the labeling requirements of the Federal Seed Act provided the required information is contained in the invoice. If seed is transported in containers and in quantities of 20,000 pounds or more, the individual containers need not contain the required information as long as sucq information is recorded in the invoice and each container is marked with a lot number. Violation of the Act or its regulations subjects the violator to a civil penalty of not less than $25 or more than $500 for each violation. Any person who knowingly, or as a result either of gross negligence or of a failure to make a reasonable effort to inform himself of the pertinent facts, violates any provision of the Act or its regulations, shall be deemed guilty of a misdemeanor and, upon conviction, subject to a fine of not more than $1,000 for 5 the first offense, and upon conviction for each subsequent offense not more than $2,000. Labeling and Record-keeping Requirements for Treated Seed Labeling. As defined by the Act, treated seed means seed given an application of a substance or subjected to a process designed to reduce, control, or repel disease organisms, -32-



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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 they are 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 authors are 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. Michael T. Olexa. is a plant pathologist/entomologist, attorney and project director of the joint USDA/NAPIAP/University of Florida Agricultural Law Program, WFAS. Alan E. McMichael and Alan H. Daniels were J.D. candidates and research assistants, University of Florida College of Law, Gainesville, 32611. i



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CHAPTER 4 PESTICIDE USAGE AND FARM EMPLOYEE SAFETY Under FIFRA, the EPA has general authority to regulate pesticide use in order to minimize risks to human health and safety. This authority extends to the protection of farm workers exposed to pesticides. All employers must comply with any pesticide labeling instructions concerning employee safety, for example protective clothing, handling instructions, etc. The EPA may also issue regulations governing the use of and exposure to pesticides by employees, for example the regulations concerning worker reentry into fields after pesticide application. In addition to any applicable requirements imposed by pesticide labeling instructions or EPA regulations, employers have other statutory and common law responsibilities to minimize the risks posed by pesticides to health and safety of their employees. The primary federal law governing farm employee safety is the Occupational Safety and Health Act, hereinafter referred to as OSHA or "the Act."1 Under OSHA and related regulations states may develop enforcement plans which, if approved, become the enforcing mechanism. OSHA is effective in all states, and is intended to prevent harm rather than compensate for injuries. It does not seek to impose absolute safety, but rather, is designed to require a good faith effort to balance employee safety against the employer's interest to function without undue interference. OSHA applies to all persons (employers) engaged in a business affecting commerce. How then does an individual know whether a particular farm operation affects commerce? Courts are responsible for determining which businesses are subject to OSHA. Once a court determines that a particular business operation affects interstate commerce, all employers engaged in that particular buisness activity are subject to OSHA's requirements. Courts have construed OSHA liberally. Even business activities remotely connected with interstate commerce have been found to affect interstate commerce. In past cases, a home garden has been found to affect commerce if it provided food or fiber to be introduced into the stream of commerce. The garden would thus fall within the ambit of OSHA regulations. In view of OSHA's liberal construction and court cases establishing the right of Congress to regulate farming operations, the Act can and does apply to farm and ranch operations. The Act's rules and standards, however, need not be followed where all workers are independent contractors as opposed to employees. OSHA Requirements In general, every employer covered by OSHA must provide his employees with an employment environment~free from recognized hazards that are causing or likely to cause death or serious physical harm. This does not mean that all hazards must be eliminated. The employer must eliminate only feasibly preventable hazards. Additionally, the hazard to be minimized must be a "recognized hazard". "Recogniz-ed"1 is used both objectively and subjectively. Subjectively, if an employer knows about a particular hazard which generally is not present or recognized, he will be held accountable under OSHA. Objectively, an employer will be held accountable if an injury arises from a hazard which he did not recognize but which generaly is recognized by most individuals within the farm industry. While OSHA addresses the prevention of hazards which cause death or serious physical injuries, an employer's duty under OSHA can also extend to preventing non life-threatening injuries. It is important to note that while OSHA provides criminal and civil sanctions to enforce the duty of employers to supply safe working conditions, the injured party cannot sue the employer merely based on a violation of OSHA. This is discussed further in the section "Other Bases of Liability for injuries to Workers." 21



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This public document was promulgated at a cost of $2,641 .00, or 88 cents per copy, to provide information about regulation of agricultural pesticides. 1 1-3M-84 COOPERATIVE EXTENSION SERVICE, UNIVERSITY OF FLORIDA, INSTITUTE OF FOOD AND AGRICULTURAL SCIENCES, K. R. Tefertilier, director, In cooperation with the United States Department of Agriculture, publishes this Information to further the purpose of the May 8 and June 30, 1914 Acts of Congress; and Is authorized to provide research. educational Information and other services only to Individuals and Institutions that function without regard to race, color, sex or national origin. Single copies of Extension publications (excluding 4-H and Youth publications) are available free to Florida residents from County Extension Offices. Information on bulk rates or copies for out-of-state purchasers Is available from C. M. Hinton, Publications Distribution Center, WFAS Building 664, University of Florida, Gainesville, Florida 32611. Before publicizing this pulction, editors should contact this address to determine availability.



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The Safe Drinking Water Act The Safe Drinking Water Act12 may also affect a farmer's use of pesticides. In general, this Act allows states to issue regulations designed to protect the pollution of public water systems. 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. In particular, states must control and monitor activities posing a threat to public drinking water sources. Any activity that introduces pollutants subsurface, not necessarily just into a well, is within the scope of the Safe Drinking Water Act. This means that applying pesticides subsurface 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 jurisdiction of the Safe Drinking Water Act if it results in the subsurface introduction of pesticides or other pollutants. If water pollutants are passed back into the water source and subsequently pose a threat to a public drinking water source, the irrigation operation 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. Enforcement Civil fines can be as higl gs $5,000 per day for a non-willful violation and up to $10,000 per day for a willful violation. Citizen Suits. Any person may commence a civil action against another who violates any requirement imposed by the Act or by the enforcement officials. However, before a violator may be sued, he or she 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. The state, however, canlitill impose civil fines for each day the violation remains or remained uncorrected. -18-



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Since OSHA does not provide a private legal remedy to injured employees, negligence is the legal theory that these injured parties would use to recover monetary damages. Strict liability (see Chapteri) can be used in some states to seek compensation for injuries. Not all states will use this theory for imposing liability. Check your state's position. Other Statutes. More than one statute may be violated by a single act. For example, an injury to an employee arising from the improper handlinrdsoa fpsiie eutn h contamination of water could violate FIFRA as well as the Clean Water Act. Additionally, state laws covering a myriad of topics from pesticides to farm labor standards can be violated in the employer/employee relationship addressed by OSHA. -25



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NOTES -35-



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Citations 1. 7 U.S.C. 1551 (1982). 2. Id. at 1561 (a) (3)-(4). 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 merchandizing of seeds, whereby such seeds are sent from one State with the expectation that they will end their transit 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 the 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. 3. 7 U.S.C. 1573 (a). 4. Id. at 1573 (b) (2). 5. Id. at 1596. 6. Id. at 1572. 7. 7 C.F.R. 201.7a (1983). 8. 88NM 74, 537 P. 2d 682 (N. M. Ct. App. 1975), cert. denied, 88 NM 29, 536 P. 2d 1085 (N. M. 1975). 9. 21 U.S.C. 301 (1976). 10. 7 U.S.C. 136 (1982). 11. 40 C.F.R. Part 180 (1983). 12. 21 U.S.C. 342 (1976). 13. 21 C.F.E 2.25 (1983). 14. 15 U.S.C. 1251 (1982). -34-



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23. Id. at 6926. 24. Id. at 6928. 25. Id. 26. Id. at 6972. 27. 33 U.S.C. 1251 (1976). 28. Id. at 1268 (b) (2) (f); 1314 (f). 29. 42 U.S.C. 7401 (Supp. V 1981). 30. 49 U.S.C. 1801 (1976). 31. 49 C.F.R. 171 (1982). 32. These terms are not defined in the Act or it's 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 (1) transporting property that they own, lease or hold under a 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) (1982). 33. 49 C.F.R. 387 (1982). -15-



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NOTES -36-



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CHAPTER 5 PESTICIDE DRIFT AND RESULTANT LIABILITY The use of pesticides on the farms and ranches of America has given rise to a myriad of lawsuits against applicators, those employing the applicators and even those recommending the use of pesticides. Liability has been imposed even when the label instructions have been followed to the letter. While liability has been imposed under a variety of legal theories, a common denominator in most cases has been damage caused by pesticide drift. Other situations such as direct application to the wrong crop and injuries to farm workers due to exposure too soon after application have also given rise to many lawsuits. While it may not be possible in every situation to anticipate a potential liability, the following materials are intended to make those persons subject to potential liability aware of those activities that may result in a lawsuit. The common law theories addressed in this chapter are introduced and discussed in Chapter 1. Each state, generally through its courts, determines which theory of liability will apply for a given act, who may sue or be sued and the extent of the financial liability imposed. The law applicable in a particular state must be ascertained by referring to local statutes and court decisions or to attorneys licensed to practice law in that state. Common Law Theories of Liability Negligence. One is negligent if one neglects to do something that a reasonable person would do under like circumstances, or does something that a reasonable person would not do. In general, the acting party has a duty to avoid creating situations which pose an unreasonable risk of harm. In other words, if it is foreseeable that harm to person or property could result if due care isn't taken in carrying out a particular act or activity, then the acting party has a legal duty to perform that act with that level of care which a reasonably prudent person would exercise. This legal duty of care is owed to all who foreseeable may be harmed by a failure to exercise due care. As noted in Chapter 4, the minimum level of care required of the actor can also be set by statute. Laws regulating the disposal of pesticide containers are used here again to demonstrate these statutory categories of negligence. In some states, failure to comply with the disposal laws is treated as negligence per se The acting party will be found liable to those injured by the actor's failure to dispose of the containers as required by law whether or not that party proves that 100 other reasonable people would have disposed of the containers in the same manner under similar conditions. The only defense available is in proving that the containers were disposed of as required by the statute(s). Some states, however, treat the violation of such a statute as a presumption of negligence. In these states, if it can be demonstrated that the containers were disposed of in a reasonable manner, i. e., a reasonably prudent person would dispose of the containers in the same way under similar circumstances, then liability can be avoided. Still other states treat a violation of a statute as merely some evidence of negligence. Absent additional evidence demonstrating that the acting party in fact disposed of the containers in an unreasonable manner, liability probably would not be imposed. -27-



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CHAPTER 1 FEDERAL AND COMMON LAW GOVERNING PESTICIDE USE Agricultural pesticide use is subject to extensive governmental regulation at the federal level particularly, but also by state and municipal governments. Several federal statutes and countless administrative regulations address every aspect of pesticide use, from manufacture and distribution to application, storage and disposal. This chapter summarizes the major federal statutes governing the application, handling and disposal of pesticides. Pesticide applicators must also comply with any pertinent state and local laws or regulations. The last section of this chapter introduces common law actions which may be brought against any applicator for improper pesticide use. Primary Federal Laws The Federal Insecticide, Fungicide and Rodenticide Act Government control over pesticides began with the Insecticide Act of 1910 in which Congress attempted to protect farmers from adulterated or misbranded products. Control was broadened by the original Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) of 1947, in which Congress charged the Department of Agriculture with the task of registering all pesticides before they could be introduced into interstate commerce. A 1964 amendment authorized the Secretary of Agriculture to refuse registration or to remove from the market pesticides that were unsafe or ineffective. The administration of FIFRA was transferred to the Environmental Protection Agency (EPA) when that agency was created in 1970, marking a shift in policy from the control of pesticides for reasonably safe use in agricultural production to control of pesticides for reducing the risks to man and the environment. This shift in policy was strengthened by the Federal Environmental Pesticide Control Act (FEPCA) of 1972 which specified methods and standards of control in greater detail. Subsequent amendments have clarified the duties and responsibilities of EPA. Under FIFRA 1 no one may sell, distribute, offer to sell, hold for sale, ship, deliver for shipment or use a pesticide unless it is registered by EPA. Registration includes approval by EPA of the label on which the use and limitations of the material are specified. EPA must also classify pesticides as "restricted" or "general use" and only certified applicators may acquire and use restricted products. EPA has established rules and procedures for certifying applicators. Requirements for certification are more stringent for commercial applicators than for individual farmers who apply restricted pesticides for their own use. In general, all pesticides must be registered by EPA. FIFRA and related legislation, together with the rules promulgated by EPA, set forth the requirements for pesticide registration. These requirements are quite complex and need not be elaborated here other than to point out that EPA will not register a pesticide unless it is satisfied that its use as specified by the label will not cause undue harm to man or the environment. Pesticides must be reregistered periodically and EPA must make the same kind of judgment on a reregistration that it does on an original registration. EPA may cancel the registration of a pesticide if information becomes available to show that the material poses an undue risk to man or the environment. There are some exceptions to the registration requirement, but they do not generally affect the availability or use of a pesticide in agriculture. An unregistered pesticide may be made available for experimental use by a temporary permit, especially if the experimental use



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TABLE OF CONTENTS Page PR.EFALCE ................................... ii CHAPTER 1. FEDERAL AND COMMON LAW GOVERNING PESTICIDE USE ...........1 Primary Federal Laws ................................................... 1 The Federal Insecticide, Fungicide and Rodenticide Act...................... 1 FIFRA Regulations for Pesticide Applicators ............................... 2 Penalties for Private Applicators...................................... 3 Penalties for Commercial Applicators.................................. 3 The Resource Conservation and Recovery Act .............................. 3 Common Law Actions.................................................... 4 Trespass ............................................................ 4 Intentional Trespass ................................................ 4 Unintentional Trespass .............................................. 4 Nuisance ............................................................ 5 Public Nuisance.................................................... 5 Private Nuisance................................................... 5 Negligence........................................................... 6 Strict Liabililty....................................................... 6 Citations .............................................................. 7 CHAPTER 2. STORAGE AND DISPOSAL OF PESTICIDES AND PESTICIDE CONTAINERS ........................................... 9 Labeling Instructions .................................................... 9 EPA Recommended Procedures for Storage and Disposal........................ 9 Hazardous Waste Regulations Relating to Pesticides and Containers ...............9 Exceptions for Farmers ............................................... 10 Exceptions for Small Generators of Hazardous Wastes....................... 10 Special Regulations for Commercial Applicators ............................. 10 Maintenance of Records and Official Inspection............................ 10 Hazardous Waste Regulations........................................... 11 Penalties for Hazardous Waste Violations ................................. 11 Other Statutes Affecting Pesticide Storage and Disposal....................... 12 Water and Air Pollution Laws........................................... 12 Transporation of Hazardous Materials.................................... 12 Common Law Liability for Pesticide Storage and Disposal ......................13 Citations ............................................................. 14 CHAPTER 3. WATER POLLUTION BY PESTICIDES ............................. 16 Significance To Agriculture .............................................. 16 Point Source ........................................................ 16 Statutory Standards ............................................... 16 Enf orcement ..................................................... 17 N on-Point Source .................................................... 17 The Safe Drinking Water Act............................................. 18 Enforcement........................................................ 18 Citizen Suits........................................................ 18 Chemigation .......................................................... 19 Future Prospects....................................................... 19 Citations ............................................................. 20 iii



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Citations 1. 29 U.S.C. 651 et seq. (1976). 2. Wickard v. Filburn, 317 U.S. 111 (1942). 3. 29 U.S.C. 654. 4. Arkansas-Best Freight Systems, Inc. V. Occupational Safety and Health Rev. Comm.,529 F. 2d 649 (8th Cir. 1976); cf. Babcock & Wilcox Co. V. Occupational Safety and Health Rev. Cmm., 622 F. 2d 1160 (3rd Cir. 1980). 5. 7 U.S.C. 136 (1982). 6. The standards applicable to agricultural operators cover 1) labor camps, 2) storage and handling of anhydrous ammonia, 3) pulpwood logging, 4) slow-moving vehicles, 5) rollover protective structures for tractors, 6) protective frames and, 7) enclosures for wheel type agricultural tractors, and protective guards for farm field equipment, farmstead equipment and cotton gins. 29 C.F.R. 1928 (1982). 7. 29 U.S.C. 655 (d); 29 C.F.R. 1905 (1982). 8. 29 C.F.R. 1914 (1982). 9. Marshall v. North American Car Co., 467 F. Supp. 698 (M.D. Pa. 2979). 10. 29 U.S.C. 666. 11. 29 U.S.C. 658 (a). 12. Id. 13. Id. 14. U.S. v. Dye Const. Co., 510 F. 2d (10th Cir. 1975). 15. 29 U.S.C. 660. 16. 29 U.S.C. 659 (c). 17. 29 U.S.C. 653 (b) (9). 18. 7 U.S.C. 136 (1982). 19. 33 U.S.C. 1251 (Supp. v 1983). -26-



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or liners are empty.8 A container or liner that has held a commercial chemical product identified in 40 C.F.R. 261.33(a) is empty if: -The container or liner has been triple rinsed using a solvent capable of removing the commercial chemical product or manufacturing chemical intermediate; -The container or liner has been cleaned by another method that has been shown in the scientific literature, or by tests conducted by the generator, to achieve equivalent removal, or; -In the case of a container, the inner liner that prevented contact of the commercial chemical ? roduct or manufacturing chemical intermediate with the container, has been removed. Once emptied by one of these methods, the container is no longer subject to the hazardous waste regulations. Impropeij disposal of containers noltthus emptied subjects the generator to civil and criminal penalties, as well as citizen suits for violating the provisions of RC RA. Exceptions for Farmers The regulations allow exceptions and provisions for farmers and generators of small quantities of hazardous waste. A farmer disposing of waste pesticides from his own use which are hazardous wastes is not required to comply with the hazardous waste regulations of 40 C.F.R. Parts 122,264, or 265 provided he triple rinses each container as described above and disposes of the resi Y es on his own farm in a manner consistent with the disposal instructions on the pesticide label. Upon following the triple rinse procedure, the containers are then "empty" and the farmer can discard them without regard to the hazardous waste regulations. Note, however, that the empty containers are still subject to any disposal instructions contained within the labeling of the product and disposal in a manner "inconsistent with the labeling" instructions is a violation of FIFRA.13 Exceptions for Small Generators of Hazarous Wastes Notwithstanding the farmer exception, a person disposing of pesticide containers or residues is exempt from the hazardous waste regulations if he generates less than 1 kilogram (2.2 pounds) per month of the hazardous wastes described in 40 C.F.R. 261.33, or 1400 kilograms (220 pounds) of residue or contaminated debris resulting from clean up of a spill. Since it would not take long to generate 2.2 pounds of waste commercial chemical products, residues or unrinsed containers, the small quantity generator exception of f eyt little protection f or a farmer who ignores the triple rinse procedures of the farmer exception. Even if an applicator falls within the small quantity generator exception, he must still make a determination of the hazardous natulj%of the waste as per 40 C.F.R. 262.11, and follow certain procedures for storage and disposal.1 Hazardous waste that is being legitimately 1 reused, reclaimed or recycled is not subject to the hazardous waste management regulations.1 Special Regulations for Commercial Applicators Maintenance of Records and Official Inspection Commercial pesticide applicators may be required to maintain records of the delivery, movement, or holding of pesticides or pesticide devices. This would include storage and disposal of pesticides and containers. Upon request by EPA or designated state officials these records must be produced for inspection. Prior to inspection, officials must present to the applicator a written st *ment indicating the reasons for the inspection and whether a violation of the law is suspected. -10



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insects or other pests which attack seeds or seedlings growing therefrom. Any agricultural or vegetable seed, for seeding purposes, that has been treated must be labeled according to the provisions of 7 C.F.R. Part 201. Records. The Federal Seed Act requires all persons transporting or delivering for transportation, in interstate commerce, agricultural seeds to keep a complete record for three years of the origin, treatment, germination, and purity of each lot of seeds. All persons transporting, or delivering for transportation, in interstate commerce, vegetable seeds must keep for three years a complete record of treatment, germination and variety of such vegetable seeds. USDA officials havg the authority to inspect these records in the enforcement and administration of the Act. The complete record for any lot consisting of or containing treated seed must include: (1) records necessary to disclose the name of any substance or substances used in the treatment of such seed, (including a label or invoice or other document received from any person establishing the name of any substance or substances uspd in the treatment to be as stated), and (2) a representative sample of the treated seed. FDA Regulations for 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 destined for use in human or animal food -of ten with disastrous results. 8Perhaps the best known case is First National Bank v. Nor-Am Agricultural Products, Inc.8 There, a farmer buying seed for hogs from a distributor asked for and was given without charge a quantity of surplus seed that had been treated with a highly toxic mercuric fungicide. The mercury accumulated in the body of the hog which was then slaughtered and eaten by family members resulting in serious permanent 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 means used to communicate the warning (i.e., the tag and label) were inadequate. The manuaf acturer was held liable for the injuries. In response to such accidents, the Food and Drug Administration (FDA) issued regulaIvons bringing certain food seeds under the control of the, federal Food, Drug and Cosmetic Act. Regulations issued under this Act and under FIWVA1 specify tolerances for certain pesticide residues on food and agricultural commodities.,L Any food not meeting the pesticide tolerances or any other standails established by the Federal Food, Drug and Cosmetic Act constitutes an "adulterated foodit. 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 itself through civil proceedings. The FDA regulations addressing treated seed governs food seeds such as wheat, corn, oats, rye, barley, and sorghum that have been treated with any poisonous substance in excess of the tolerances recognized in 40 C.F.R. Part 180 or a treatment for which no tolerance or exemption from tolerance is recognized. Seeds so treated must be stained or otherwise colored so as to make them readily apparent if they are nff ~ed with untreated seeds. A suitable color for staining is one that is not easily removed and is in sufficient contrast to the natural color of the food seed so as to make the treated seeds readily distinguishable from untreated seeds. Any interstate shipment of treated seeds not stained as required by these provisions constitutes adulterated food and subjects the persons responsible to the penalties of the Food, Drug and Cosmetic Act. The regulations also note that treated seeds packaged for household use require additional labeling precautions as provided by the Hazardous Substances Act.'t, -33-



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EPA or designated state officials are also authorized to inspect any establishment or other place where pesticides or devices are held for distribution or sale for the purpose of inspecting and obtaining samples of any containers or labeling for such pesticides or devices. Officials must present a written statement to the applicator indicating the reasons for the inspection, and whether a violation of 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 reproduyion of records and the seizure of any pesticide or device which is in violation of the statute. Hazardous Waste Regulations Commercial pesticide applicators are hazardous waste generators under the regulations whenever they generate discarded commercial chemical products, containers or spill residues as described in 40 C.F.R. 261.33 or any other hazardous waste as defined in the regulations. The farmer exception, 40 C.F.R. 262.51, exempting farmers who use pesticides on their own land, does not apply to cornmergal applicators. Nor are commercial applicators likely to qualify as small quantity generators and thus be exempt from the regulations. Commercial applicators storing or disposing of pesticides or containers are, therefore, subject to the standards for generators, transporters, and disposers of hazardous waste in 40 C.F.R. Parts 122-124, and 262267. The major elements of the RORA 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 waste, or who owns or operates a facility for the treatment, storage or disposal of hazardous waste, to notify EPA of the identity of the hazardous waste involved and the nature of the activltj. Transporting, storing, or disposing of hazardous waste before filing this notice is unlawful. Additionally, each person owning or operating a facility for the treatment, storage or disposal of hazardous waste must have a permit from EPA. The permitting procedures are published at 40 C.F.R. Parts 122-124. Extensive regulations regarding record keeping and recording, storage, transportation and disposal, both on-site and off-site, are contained in 40 C.F.R. Parts 262-264. A major feature of these regulations is a manifest system that allows EPA to follow hazardous waste from generator to transporter to disposer. Upon request of EPA or designated state officials, the generator must permit the officials to inspect the facility, insect and reproduce records, and inspect and obtain samples of wastes, containers, or labeling. The states may implement their own hazardous waste management programs to operate in lieu of the federal system after authorization by EPA. Any action taken by a statsy~nder an authorized hazardous waste program has the same force and effect as EPA action. Penalties for Hazardous Waste Violations When EPA determines that a person is in violation of any provisions of RCRA, the violator is first notified. 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. If the violator fails to comply within the specified time, he shall be liable for a civil penalty of not more than $25,000 for each day of continued noncompliance and the Agency may revoke or suspend any permit issued to the violator. Upon suspension or revocation of a permit, the violator may request a public hearing. In determining the amount of the civil penalty, EPA considers the seriousness of 2Ve violation, and any good faith ef forts to comply with the applicable requirements. Criminal penalties are imposed upon any person who knowingly: -Transports any hazardous waste to a facility which does not have a permit, -11



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State laws generally govern liability for violations of state pesticide regulatory provisions. To ascertain liability in your state, local and state acts must be examined. -30-



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Bulletin 212 Regulations Governing the Use of Agricultural Pesticides Pesticide Impact and Assessment Project Manual No. 3 M. T. Olexa A. E. McMichael A. H. Daniels Fr Florida Cooperative Extension Service / Institute of Food and Agricultural Sciences I University of Florida / John T. Woeste, Dean



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NOTES -37-



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Injunctions. Upon a petition by the enforcement officials, courts may order immediately the shut down of all or part of any operation which poses a danger which may be reasonably expected to cause death or serious injury. This injunction will remain in force until the outcome of any enforcement hearing (if one was timely requested). Other Bases of Liability for Injuries To Workers Common Law and OSHA OSHA expressly states that it in no yy enlarges or diminishes any "common-law statutory rights, duties or liabilities of employers". Violation of OSHA's general duty provision can subject the violator to a negligence suit. Failure to take reasonable precautionary steps to-reduce a preventable recognized hazard can be both negligent and in violation of OSHA's general duty provision requiring the employer to take reasonable steps to eliminate or reduce hazardous conditions. Consider again the example of sending farm employees without adequate protection into fields immediately after application of a potentially harmful pesticide. An employer owes a duty of care to those in his employ. What then is the legal duty of care expected of an employer? The answer is twofold. In general, the level of care expected would be the care which a reasonably prudent person would exercise under similar conditions. Merely because everyone in an industry follows certain procedures does not make that procedure reasonable. The legal duty of care required can go beyond that of normal industry practices. The level of care can also be set by statute. For example, OSHA sets out standards to be followed in agricultural operations. These standards can set the level of care expected of the employer in fulfilling their duty to their employees. Here, the employer must a least do those things required by the standards. Merely fulfilling a statutory requirement will not always disprove negligence. As previously noted, the level of care expected under given circumstances can be greater. In each particular agricultural situation, the behavior required by statute may not take into consideration all potential hazards. Therefore, in those situations where the agriculturalist has performed as required by law, he or she should consider whether danger still exists. If so, additional precautions should be taken to eliminate or minimize the hazard. State law varies according to the manner in which violations of OSHA are considered in negligence cases. The various state doctrines may be classified as follows. Violation as Negligence Per Se. If an employer violates an OSHA regulation intended to protect employees and as a result an employee is injured, the employer will be held negligent regardless of how reasonably he or she acted. The only defense would be that there was no actual OSHA violation. Violation as a Presumption of Negligence. Proven violations of OSHA only create a rebuttable presumption of negligence. Evidence which shows that under the particular circumstances a reasonably prudent person would have acted as did the defendant-employer rebuts the presumption. Violation as Evidence of Negligence. Proven violations of OSHA amount to some evidence of negligence. Without additional evidence demonstrating that the employer's actions or inactions were unreasonable, it is not likely that liability will be imposed. -24-



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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 his rights to the use and enjoyment of the land. Negligence Negligence is perhaps the most important common law action in use today. Any act or omission that creates an unreasonable risk of harm to another constitutes negligence. In order to establish a cause of action for negligence, three elements must be demonstrated. First, the defendant must have a duty of care toward the plaintiff. A duty of care exists whenever it is foreseeable that there is a risk of harm to the plaintiff. Thus if a reasonable person could foresee that pesticide usage could result in harm to anyone, then the defendant has a duty to avoid the risk. Second, if a duty of care does exist, the defendant must breach his duty by acting unreasonably in light of the foreseeable risk. The test to determine whether the defendant's actions were a breach of duty is to ask what a reasonable, prudent person would have done under the same circumstances. This determination is made by a jury. In the above example, if a reasonable person would have acted t V prevent the risk in the pesticide's use, then the defendant breached his duty by failing to do so. In order to recover damages from the defendant, the plaintiff must have suffered some actual injury to person or property that was caused by the defendant's breach. Causation need not be direct. The breach may be the indirect cause of the injury as long as the chain of causation is not so attenuated that it is unforeseeable that the injury would result. This principal of liability for indirect but foreseeable injury is known as "proximate cause". These concepts of duty of care, breach of duty, causation, injury and damages will be developed further in examples used throughout the text. Strict Liability The common law doctrine of strict liability was briefly addressed above in the discussion of ultra-hazardous activities. Certain activities are considered so exceptional, non-natural or abnormally dangerous that the actors must be held strictly liable for a Y resulting injury, regardless of whether the actors were negligent or exercised due care. Examples of activities that have incurred strict liability are keeping of wild animals, carrying or storing explosives or dangerous chemicals, and conducting certain types of mining or industrial activity that, because of the circumstances of location or methods, are abnormal. An important limitation to the doctrine of strict liability is that the defendant is liable only for injury caused by those aspects of his activity that make the activity ultra-hazardous. Therefore, an operator of an abnormal activity will not be strictly liable for any and all harm resulting from his operation, but only those injuries caused by the inherent danger in the activity. The common law of the various states varies with respect to which activities are considered abnormally dangerous and subject to strict liability. Generally, generators, stores, and transporters of hazardous waste are strictly liable for injury resulting from handling the waste. In some states, pesticide use is subject to strict liability. -6-



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-Treats, stores, or disposes of any hazardous waste without having obtained a permit, or -Makes any false statement or representation in any application, label, manifest, record, report, permit or document used in compliance with the statute. Upon convictions, the violator is subject to a fine of not more than $25,000 for each day of violation, or to imprisonment not to exceed one year, or both. Violations by a person previously convicted under the statute are punishable by fines of n ? more than $50,000 per day of violation, or imprisonment for not more than two years or both. Unlike FIFRA, RC RA allows citizen suits for violation of the statute. The plantif f must notify the alleged violator, the EPA and the appropriate state authorities at least 60 days prior to bringing suit and may not bring suit against any person who i the subject of EPA or state civil or criminal action to require compliance with the statute.6 Other Statutes Affecting Pesticide Storage and Disposal Water and Air Pollution Laws In certain situations, improper pesticide storage or container disposal may constitute a violation of the Clean Water Act or the Clean Air Act. Both of these statutes are discussed in greater detail in subsequent chapters; they are mentioned here only to the extent that they may apply to pesticide storage and disposal. The Clean Water Act27 establishes limitations on discharge into navigable waters of pollutants through "point sources"t. Point sources are discrete, discernable conveyances such as drainage pipes or ditches. It is conceivable that a discharge from improper storage or container disposal at an agricultural or industrial facility may constitute a point source under the act. The Clean Water Act directs EPA to establish regulations covering "non-point" sources of water pollution, specifically including agricultural activities. To date, however, these regulations have not been established. See Chapter 3. The Clean Air Act29 directs the states to develop implementation plans for attaining national air quality standards. The state implementation plans prohibit any "stationary source" usually an industrial facility, from operating in such a way as to prevent attainment of the air quality standard applicable to the region. An example of the way in which this might affect a commercial applicator would be if an incinerator facility disposing of waste pesticides or containers would be construed a stationary source for purposes of the statute. Transportation of Hazardous Materials The Transporation Safety Act of 197430 vests in the U.S. Department of Transportation (DOT) the authority to regulate the movement of all hazardous materials by any mode of transportation. Most, if not al V~esticides fall within materials characterized as hazardous in the regulations issued by DOT. The extensive DOT regulations govern the packing, abeling and handling of pesticides for transportation by common, contract or private carriers. A commerical pesticide applicator transporting pesticides for application under contract would constitute either a contract or private carrier and thus be subject to the regulations. Under certain circumstances, a private pesticide applicator transporting pesticides for his own use may be considered a private carrier subject to the regulations. Activities which may constitute private carriage of hazardous materials include crossing state lines while transporting pesticides and transporting pesticides for another person under an agreement to provide such transportation (with or without compensation). -12



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The right of entry and inspection is not, however, unlimited. Basically, the entry and inspection must be reasonable with respect to time and place. Courts have stated that administrative enforcement officials must have a search warrant or its equivalent for an entry to be "reasonable". Employees can request an inspection by giving notice to the OSHA enforcement authorities. Notice of this request must be given to the employer at or before inspection. A federal district court case has held that, "1... 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 (ot OSHA) would violate the employer's Constitutional rights against unlawful searches"1.Federal regulations outline procedures which enforcement officials must follow in deciding whether or not to act on an employee complaint. Penalties for Violations The Citation. OSHA enforces its provisions through criminal and civil sanctions.'0 When an OSHA provision is not satisfied by an employer, for example if an employer fails to prevent a feasibly preventable hazard, the violator is issued a citation. A citation for an OSHA violation can be issued only if, after an inspff tion or investigation, an enforcement official believes that a violation of OSHA has occurred. The~ citation must be in writing and must describe specifically the nature of the violation." The citation must also give an employer a reasonable time to~~ate the violation and cannot be issued more than six months after a violation occurs. It is possible that a violation of OSHA may be ongoing in that continually hazardous work conditions exist. Under such circumstances, the six month statute of limitations is never applicable. This limit applies to citation procedures W~ does not limit the time in which criminal prosecution for OSHA violations must begin. The employer may contest a citation by notifying the enforcement official within 15 days from receipt of the notice of penalty. If timely requested, an administrative hearing is held to decide if the penalty is warranted or not. idicial review in a court of law may be inititated following an adverse administrative ruling. If the cited employer fails to abate the OSHA violation timely, a new penalty can be imposed. ISthe employer can show a good faith effort to comply, the abatement order can be modif ied.' For violation of OSHA there are three potential consequences: monetary payments, imprisonment, and shutdown of the employer's operations. Monetary Payments. For willful (intentional disregard of, or plain indifference to) or repeated violations of any OSHA provision, a $10,000 fine per violation can be imposed. Additionally, a $1,000 fine per violation must be imposed for serious violations. If the violation was not of a serious nature (it did not threaten serious physical harm), a $1,000 fine per violation may be imposed. For failing to timely abate a violation, a fine of $1,000 for each day such violations continues can be levied. Failure to post notices can result in a fine of up to $1,000. Criminal Penalties. If convicted of a willful violation of any OSHA provision which violation caused an employee's death, up to a $10,000 fine or up to 6 months imprisonment or both must be imposed. For convictions for such violations committed after a prior conviction by such person, a fine up to $20,000 and imprisonment up to one year or both are authorized. For falsifying records, reports, statements, and other documents required to be kept and compiled by OSHA, a $10,000 fine plus up to 6 months in prison may be imposed. -23-



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Page CHAPTER 4. PESTICIDE USAGE AND FARM EMPLOYEE SAFETY .................. 21 OSHA Requirements ........................................................ 21 Inspection and Investigation ................................................ 22 Penalties for Violations ................................................... 23 The Citation .......................................................... 23 Monetary Payments ................................................... 23 Criminal Penalties .................................................... 23 Injunctions ........................................................... 24 Other Bases Of Liability For Injuries To Workers ............................... 24 Common Law and OSHA .................................................. 24 Violation as Negligence Per Se ............................................. 24 Violation as a Presumption of Negligence .................................... 24 Violation as Evidence of Negligence ........................................ 24 Other Statutes ........................................................... 25 Citations .................................................................. 26 CHAPTER 5. PESTICIDE DRIFT AND RESULTANT LIABILITY ...................... 27 Common Law Theories Of Liability ........................................... 27 Negligence .............................................................. 27 Negligent Application of Pesticides ......................................... 28 Nuisance ................................................................ 28 Trespass ................................................................ 28 Strict Liability ........................................................... 29 Statutory Liability ....................................................... 29 Citations .................................................................. 31 CHAPTER 6. TREATED SEED ................................................... 32 The Federal Seed Act And Regulation Of Treated Seed .......................... 32 Labeling and Record-keeping Requirements for Treated Seed ................... 32 Labeling ............................................................. 32 Records .................................... ............... 33 FDA Regulations For Treated Seed ................. ................ 33 Citations .................................................................. 34 iv



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24. See generally Prosser. The Law of Torts, 63-75 (4th ed., 1971). 25. Id. at 571-614. 26. Id. at 205-491. 27. Id. at 492-540. 8-



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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-NAPIAP, U.S. Department of Agriculture. The main purpose of the grant was to develop educational materials for agricultural scientists on the legal aspects of Pesticide Impact and Assessment Reports. This document is one of three dealing with impact and assessment reports and pesticide user liability. Principal Investigators on the grant project are James S. Wershow, J.D., L.L.M. Professor of Agricultural Law, Food and Resource Economics Department, University of Florida; and Grover C. Smart, Ph.D., Professor of Nematology, Department of Entomology and Nematology, University of Florida. The authors are indebted to the principal investigators and to Melvin L. Upchurch, Ph.D., Consultant, for review and consultation on this paper. Appreciation is extended especially to Paul W. Bergman, Ph.D., National Agricultural Pesticide Impact Assessment Program, Extension Service, USDA for making the grant available and reviewing the work; and John T. Woeste, Ph.D., Dean of Extension, University of Florida, for constructive input and support. ii



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Even if an employee's injury arises from his own negligence, the employer can still be held responsible for violating OSHA where the employee's negligence is forseeable by the employer either because of the employer's prior experience or knowledge of special facts and where demonstrably feasible measures existed to prevent such employee injury. In previous cases, employers have been found in violation of OSHA where an employee's death could result from lack of adequate training and supervision in the safe operation of unique heavy machinery. Under this reasoning, farm employers can be in violation of OSHA if they fail to train employees in the proper handling of pesticides, even if an injury as not yet resulted. The employer in this situation also may be in violation of the FIFRA. In addition to, and in conjunction with, the general duty of care, each employer covered by OSHA must comply with any and all relevant and applicable safety and health standards issued under OSHA's authority. Federal regulations promulgated under OSHA set forth a wide range of safety and health standards. There are not a wide variety of standards applicable to agricultural operators or specifically to pesticide related operations. There are no standards on the use of protective clothing. The duty of farm employer's in these uncovered areas will be set by the general duty of care mandated by the Act. This means that farm employers when engaged in certain farming practices need not follow a set series of steps to comply with OSHA. Instead, farm employers in these circumstances are bound by a reasonableness standard-did the employer take all reasonable steps necessary and feasible in eliminating or minimizing recognizable hazards? This question as framed by a court of law would ask: Did the employer do what a reasonably prudent person would do under similar circumstances? Any employer may apply to the Secretary of Labor for a variance from a standard if compliance with such standard is Po burdensome due to the unavailability of professional or technical personnel or equipment. Farm employers must make and preserve records of their activities relating to OSHA. These records must be available to the OSHA enforcement officials upon request. Basically, records must contain information on any farm related accidents or existing or potential hazardous conditions other than minor injuries not requiring medical treatment, loss of consciousness, restriction of work, or transfer to another job. Causes and preventative steps (if any taken) must also be incorporated within the records. Other requirements include an annual summary, supplementary records and the reporting of fatality or multiple hospitalization accidents. 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. Farm employers with ten or fewer employees at anytime during the prior calendar year, need only report within 48 hours after occurrence of fatal accidents and/or those involving hospitalization of five or more employees. These "small" employers must also maintain a log of occupational injuries and illnesses. Inspection and Investigation. To ensure compliance with OSHA, the Secretary of Labor, his representative or state enforcement officials are authorized to enter farms and inspect and investigate farming operations. These officials may write citations for observed violations of OSHA (see Penalities; for Violation). -22



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While the general rule for imposing liability for a trespass required the trespass to be intentional, some states impose liability for unintentional trespasses if the trespass is a result of an ultra-hazardous activity. In past cases in some states, the aerial application of a toxic pesticide has been held an ultra-hazardous activity. In the cases holding these activities to be ultraor extra-hazardous, liability for unintentional trespasses has been imposed on those actually applying the chemicals as well as those directing its use (i.e., farmers or ranchers who employ the applicators). To date, only applicators and landowners directing the use of toxic pesticides have been found liable. One key factor that a court may examine in determining if liability will be imposed is in questioning how much responsibility an individual had in directing or in establishing the ultrahazardous activity. Liability imposed for unintentional trespass arising from an ultra-hazardous activity is similar to the liability imposed by the Arizona court under nuisance; liability was imposed because an ultra-hazardous activity gave rise to an injury. Strict Liability. As was noted in Chapter 1, liability under this theory is imposed strictly from the undertaking of an ultra-hazardous (high risk) act which as a result of this act, a foreseeable injury results. Certain factors are used to judge whether a particular act should be classified as an ultrahazardous act. States may consider some or all of the following factors: 1. Whether the activity involves a high degree of risk of some harm to any persons or land or property of others. 2. Whether the harm which may result is likely to be great. 3. Whether the risk of harm cannot be eliminated by the exercise of due care. 4. The value of the activity to the community. 5. Whether the activity is a matter of common usage. For an activity to be held ultra-hazardous, some combination of the above factors must indicate that, while the activity is one which society does not want to ban overnight, the activity poses risks which cannot be eliminated or substantially minimized through the exercise of due care. As mentioned, among those activities previously found to be ultra-hazardous are the aerial application of toxic pesticides and, in some states, the mere use of toxic pesticides regardless of the method of application. Note, however, that as technology improves, some acts previously found to be ultra-hazardous may be judged subsequently not ultra-hazardous. In such cases, injuries resulting from these acts will have to be based on one of the other liability theories. Oklahoma is an example of a state using this theory of liability when an injury results from the undertaking of an ultra-hazardous act vity. In Oklahoma the mere use of an herbicide is considered to be an ultra-hazardous activity. Oklahoma courts have imposed liability on an individual using or directing the use of an herbicide when such use has resulted in foreseeable injury to third parties (injuries to persons or property). The foreseeable injuries in these cases were the destruction of crops on property adjoining the targeted property. Statutory Liability. Farmers, applicators, and those recommending use of a pesticide are subject to both civil and criminal liability under the provisions of FIFRA (see Chapter 1). While some penalties for certain violations are excluded from applying to public employees who commit these violations during the course of their employment, other penalties for certain violations will apply even to publicly employed persons. -29-