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Dicamba drift concerns: how to protect yourself, report injury

Tiffany Dowell Lashmet, Texas A&M AgriLife Extension law specialist
With new EPA label restrictions for 2018, how can applicators protect themselves, their neighbors and the product, whose registration is set to expire in November of this year?

While dicamba is not a new pesticide, having been in use since the 1960s, what is new is the GMO seeds that allow growers to spray dicamba over the top of the modified cotton and soybeans plants. But with new technology often comes new challenges.

Nationwide, more than 2,700 claims have been filed related to dicamba in 2017— nearly 1,000 of those from Arkansas. Mid-season, some states even banned the over-the-top application of the pesticide. With new EPA label restrictions for 2018, how can applicators protect themselves, their neighbors and the product, whose registration is set to expire in November of this year?

“We’ve got lawsuits galore across the country; probably at least 10 of these are class action lawsuits filed in multiple states,” says Tiffany Dowell Lashmet, Texas A&M AgriLife Extension law specialist. A class action lawsuit is where one person is the named plaintiff, but he sues not just for his own damage but he seeks to represent a class of similarly situated people. “For example, the one named plaintiff from Arkansas might seek to represent a class of everyone in Arkansas who is harmed by dicamba. Some of these cases seek to certify multi-state classes and do include Texas.”

What has caused the dicamba issues? Lashmet credits a combination of four things. One is spraying older dicamba formulations off-label. “It’s clear some of that has happened,” she says. No. 2, not following the label on the new dicamba formulations, such as nozzles, boom height, buffer zones and wind. “Not following the rules, essentially,” Lashmet explains.

Volatilization of various dicamba formulations has been another problem. “There are big questions and concerns about how volatile these new formulations are and how temperature inversions are affecting that. And, No. 4, there’s true drift or misapplication, like applying on the wrong field or actual drift during application onto your neighbor.”

Insurance is another area that may be problematic in the coming growing season for applicators. “They’re predicting an increase in insurance premiums for some carriers if you want coverage for dicamba,” says Lashmet at the Texas A&M AgriLife Extension’s Seeking Solutions Managing Economic Risks at Lubbock, Texas. “This is if you want to apply dicamba and you want to be covered as the applicator; they are possibly going to increase your rates.”

Because drift damage is not a covered loss by crop insurance, a grower on whose crop dicamba has drifted, might assume he is covered under the applicator’s farm liability policy, but Lashmet says that’s not always the case. “We’ve seen some situations where insurers are denying coverage. “Sometimes, they say the injured farmer can’t prove whose dicamba it was. In Arkansas, you’ve got so many producers spraying dicamba, and they’re saying volatilization can cause damage 7 to 10 days after application up to a mile away. If I have drift on my field, how am I going to offer legal proof as to who sprayed it if two growers sprayed the same day?

“So that leaves both farmers in a bad position because what is your option at that point if you’ve been damaged? You may have to sue your neighbor to recover your damages, and that neighbor’s insurance may refuse coverage to pay for his defense costs or pay out a settlement.”

The other problem Lashmet has seen is, “The insurance companies may say, ‘Yes, our insured applied it, it was dicamba damage but he wasn’t negligent. He did everything right, he followed the label, no violations, there’s no evidence that he didn’t do anything that wasn’t reasonable and because of that, we are not going to pay.’ He wasn’t negligent. It was the product that was the problem. You can go sue Monsanto.’

“It’s a bad situation for the farmer damaged and for the neighbor,” says Lashmet.

Changes in 2018

In November of 2017, the Environmental Protection Agency made changes to the dicamba label, making it a Restricted Use Pesticide, which means a grower or applicator is required by law to have taken certain training and be certified to apply. Additionally, for the new dicamba formulations, the applicator is required to take an auxin specific training. Lashmet says the training requirement includes any applicator of dicamba, even those who may not have a pesticide certification who will be applying dicamba under the supervision of someone with a license.

Some of the changes EPA made were: lowering the maximum wind speed from 15 mph to 10 mph, while also reducing the times during the day when application might occur, trying to avoid the temperature inversion issue, Lashmet explains. There’s also some new tank clean out language.

“The other thing to keep in mind is that these registrations for the first new dicamba formulation expire in November of 2018. So when they approved this in November 2016, they got a two-year approval from EPA.  After that point, EPA can re-evaluate the label requirements and even the registration all together.  I have to think that if we have another year like we did in 2017, with 2,700 complaints nationwide, EPA is likely going to be concerned. So we better be careful with what we’re doing.”

Individual states have implemented changes as well, such as Arkansas having an application cutoff date and Minnesota imposing a restriction if the temperature is expected to be above 85 degrees. “We have not seen anything different from the Texas Department of Agriculture from last year,” Lashmet says.

Application tips

If applying pesticides, what can applicators do to protect themselves from drift claims? First, follow the label. “The label is the rule. It’s as simple as that. The dumbest thing you can do is violate a label because that is going to get you caught by TDA with a fine and that’s good evidence of negligence in court,” says Lashmet.

Secondly, she recommends applicators carry liability insurance and know exactly what that policy covers. “Make sure your policy has drift coverage because some farm and ranch policies either don’t cover drift or have a limit in the fine print. I’ve seen policies here in Texas that are a million dollar farm liability policy but if you read the fine print, the amount of coverage for spray drift is $25,000. So, keep that in mind when you are looking at insurance.”

Thirdly, check for sensitive crops in the area. “If you are spraying around a vineyard, and we’ve got vineyards in the middle of cotton fields around here, you need to pay attention. Know where they are,” she says. Many states have a Sensitive Crop Registry available online, or in Texas, they have a phone app, also.

Lastly, talk. Visit with your neighbor to see what they are growing and talk to your applicator. “If you know there’s a vineyard, your hired applicators may not. So, tell them.”

Injured party

Just as the first rule of thumb for applicators was to read and follow the label, Lashmet says, if you are the one who is injured, you need to, “document, document, document.”

In Texas, after the injured party has contacted TDA, Lashmet says the injured party needs to immediately collect evidence by taking pictures of the damage multiple times a day for various days. “Document anything you can document in regards to this,” Lashmet recommends.

Secondly, determine the actual damage. “If you’re going to file a negligence lawsuit against somebody, one of the things you have to prove is damage. You are going to have to have actual damage to the yield not just, ‘the leaves look bad,’” she says.

Third, talk with the neighbors about the damage. “Try to figure out what you can about who may have applied dicamba at which time and what type of insurance coverage they may have,” she says.

Fourth, consider contacting TDA, but if you do, Lashmet says to make sure, “you have your ducks in a row.” TDA will look at each party’s records. “Guess whose records they are going to look at first? You don’t want to call TDA and get yourself caught with a fine. If you contact them, they are going to come out and do an investigation; they’re going to prepare a report and then they can fine the person who did the application. If they figure out they did something wrong, then TDA can impose a fine. But what a lot of people don’t realize is, these penalties don’t do anything to help compensate the injured party. So, if TDA imposes a $25,000 fine, who gets that money? TDA. The farmer doesn’t. So, keep that in mind.

“If you want money, you’re going to have to handle it yourself. By handle it yourself, that means you are either going to have to get insurance involved and get a settlement from insurance or file a lawsuit. I wish there was a better answer.”

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