In an increasingly litigious agricultural environment, what should you keep in mind regarding the application of pesticides?

Foundationally, pesticide labels designate a product as general use or restricted use.

“General use means anyone can buy it, you can get it at the store,” said Tiffany Dowell Lashmet, with Texas A&M AgriLife Extension Service, during a Nov. 1 National Agricultural Law Center webinar. “You still have to follow the label governed by FIFRA but anyone can use it – there aren’t any rules regarding licensing or training.”

Meanwhile, a restricted use pesticide “requires a license be obtained from the state before a person can purchase or apply that pesticide. Those require license training and CEUs (continuing education credits) to qualify each year.

Where do state regulations fit in?

“Generally, the state is going to be able to regulate pesticide use unless prevented from doing so by the FIFRA statute,” said Lashmet. “States have the power to regulate the sale and use of pesticides within the bounds of their states.

“For example, you could have a state that requires notice be given to neighbors. That might not be the same in another state. States also have the power to prohibit pesticide even if they’re labeled and registered under FIFRA.”

An example of this is Arkansas current approach to dealing with dicamba use.

“States generally handle applicator training for certified applicators. … States have the power to require insurance or bonds be posted for commercial applicators.”

Tips for applicators

The first thing applicators need to be aware of, said Lashmet, is “label, label, label. Following the label is the most important thing any applicator of any pesticide can do. From a safety perspective you want to follow the label and also from a regulatory perspective so you can potentially avoid any fines that could potentially be imposed.

“Finally, from a liability perspective – if you were to face some sort of civil litigation over pesticide application being able to show you followed label requirements can be really important in defense.”

Whether you’re an individual farmer applying a pesticide on your own farm or a commercial applicator “you need to carry liability insurance that includes coverage for pesticide drift damage. I don’t know if you’ve ever dealt with reading liability insurance policies – they can be a bit of a nightmare. So, we see, for example, someone may have a good liability policy but there’s an exclusion in the policy talking about pollutants. There are cases where pesticide applications have been found to be ‘pollutants’ and, therefore, the liability protection didn’t apply. You must read the exclusions.”

Another thing that can arise, often too late, is fine print in a farm liability policy. “There was a case in Texas where folks had $1 million farm liability policy but in the fine print it limited coverage for spray drift damage to $25,000. You have to be really careful, make sure you read the policies and understand them and you’re covered for any application.”

It’s important to check for sensitive crops in the area, said Lashmet. “There are crops certainly more sensitive to pesticide drift than others. An example in the High Plains of Texas is wine grapes. Even a little pesticide drift can cause damage to wine grapes that can last for years.”

There are various ways to check for such sensitive crops.

“In Texas, we’ve got a program, an app for your phone, that’s a ‘sensitive crop registry.’ I think most states have something similar. If you’re growing wine grapes in the middle of cotton, you can mark those on the app and folks in the area can see that…

“Talk to your neighbors – and this comes up again and again. See what they’ve got planted, where they’re planting it, what technology they’re planting.

Flag the Technology

“There’s been a kind of new wave with the new technologies for 2,4-D and dicamba called ‘flag the technology.’ … There are different colored flags to identify what was planted in a field. … That way any one applying pesticides knows what surrounding fields have in them, the tolerances and where they need to be extra careful.”

It sounds simplistic, but Lashmet says to “talk to your applicator. … Make sure they’re extremely clear on what field they’re going in, what’s in the surrounding areas. If you know there’s a sensitive crop nearby, tell them. You probably know that area better than them and can avoid some trouble with that approach.

“Talk to your neighbors. Figuring out ahead of time who’s planting what, where and what’s going on can avoiud trouble on the back end.”

Finally, applicators must use common sense.

“You read of some cases where you say ‘what in the world was that guy thinking?’ I even read of a case in Arkansas last year where someone applied dicamba aerially. Obviously, dicamba isn’t approved for aerial application.”