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May 10, 2018 10:00 PM

Chemical Trespass Case

Clay County, SD

Five years ago, Glenn and Angela Pulse decided to embark on their dream to produce organic eggs, free range organic chickens and a few organic row crops. They called it Prairesun Organic Farm. 

"And this is a legitimate business.  I was going to be doing this full time. And now I can't. I can't.  It tears you apart," Glenn said.  

Can't because of something called "chemical drift."  That's when a chemical applicator sprays over a conventional crop and a vapor is created that drifts, depending on the direction of the wind. If pesticides, herbicides or fungicides land on a certified organic farm like the Pulses, they lose their certification for three years. 

"When we got over sprayed on that day, it set us back at least three years. It cost us in excess of $100,000," Glenn said.  

This is where the problem began, in this cornfield where the corn was about eye level and it was being sprayed with pesticides. Just across the street is the Pulses' organic farm and it didn't take long for them to realize there was a problem.

The Pulses began recording the incident as it happened.  

"The pilot saw us he kept spraying. The whole neighborhood started fogging up, he saw it he kept spraying," Angela said. 

The Pulses ran tests on their property and contacted the state and EPA. 

"One of the things that came out of this that absolutely blew me away is that the testing that we did on our land and the state results actually came back 28 percent higher than the EPA allowed tolerance level for Trivapro on a drift incident," Angela said. 

Trivapro is a fungicide. The Pulses say the beekeeper who has hives on their land lost 700 bees that tested positive for insecticide. Their vet also believes the chemicals caused their dog to get sick. 

"How can somebody do that and contaminate our land to such high levels and cause such destruction and expose our animals our livestock and us and our children to this and not and not and just get like a small fine. And just get to keep flying," Angela said. 

In this email to the Pulses, Tom Gere South Dakota's Fertilizer and Pesticide Specialist with the Department of Agriculture told them that "the pilot was issued a misdemeanor fine and he paid the fine."  However, Gere wrote the pilot was not charged with a more serious violation of the law because "the wind was blowing in the opposite direction of their land and he was following the pesticide label, but that the application was being made to the corn incorrectly." 

"If they were applying at the recommended rates in those conditions, then how in the world would that high of level of chemical get on our property 500 feet away from the airplane was spraying? And no one's been able to answer that for me," Angela said. 

Gere also wrote that the reason the Pulses' clothes tested positive for chemicals was "since you were on the road trying to get him to stop."

The South Dakota Department of Agriculture refused an on-camera interview for this story, but former Ag secretary Walt Bones told us he dealt with chemical trespass cases during his tenure. Bones, who has his applicator permit, says it all comes down to applicators following the label. 

"I mean it's against the law to not follow those recommendations. And so if it's too windy, you better shut down. If the wind is out of a direction that might you know drift across onto your neighbor don't spray that area. I mean there's just some really common sense things that determine those best practices," Bones said. 

Minnesota, Iowa and North Dakota all require chemical applicators to carry liability insurance. South Dakota does not. 

Angela Kennecke: Is there something missing that would better protect when there was negligence?
Bones: It seems like we always have to penalize those that are doing it right, to try to catch somebody that's not doing it right. And so do we need more laws more requirements no I think we've got adequate things on the books now to take care of that. 

Kennecke: Was this just a one-time isolated incident?  
Glenn Pulse: I would like to say it's a one-time isolated incident, but we have other friends in the industry and other friends that grow gardens in their backyards--it's not isolated. It's something that repeatedly happens.  

Just last week, the Pulses captured this sprayer out on a windy day in a different field nearby. While we don't know what he was spraying, the Pulses say it's one more example of the need for better enforcement of the rules in the state. 

 

Kennecke:  Does your case pit conventional farmer against organic farmer?
Angela Pulse: Absolutely not.  Everything that I have brought up has nothing to do with organic versus non-organic. It has to do with following the law. Where's the EPA when these things happen to people like us? 

KELOLAND Investigates called the aerial spraying company in the Pulses' case from last summer--Crop Care Aerial Spraying--several times but got no response. 
We also called Cow Candy Transport several times--whose truck was spraying last week on that windy day. But the owner never called back.  

We did speak with the farmer who owns the land across the street from the Pulses. He says  it's an issue between the professional aerial applicator he hired and the Pulses. 

The South Dakota Department of Agriculture released the following statement: 

“State law requires all applicators to follow all the label requirements for any pesticide application. Any complaints of improperly applied pesticides can be directed to the South Dakota Department of Agriculture by either calling or visiting our website, sdda.sd.gov. The department encourages both applicators and landowners with sensitive sites, such as beehives or organic crops, to use DriftWatch. DriftWatch is tool to increase communication between applicators and landowners by allowing landowners to identify sensitive sites on an interactive map that applicators can access prior to any spraying activity. More information on DriftWatch, visit driftwatch.org.

Email response from Tom Gere/SD Dept of Agriculture to Angela Pulse's questions: 

  • Why was the pilot not found guilty of SDCL 38-21-15 when there was evidence provided that the pilot did endanger us and cause injury to the environment, pets, pollinators, and humans?  We looked at pesticide levels detected and wind direction was the basis for not enforcing 38-21-15. The wind speeds were blowing in the opposite direction (away) from your land; application was made within pesticide labeled wind speeds and correct application rate.   Proof was provided that the application was being made to the corn incorrectly with being over the crop canopy to high. 
  • Can we get our file released so we know the amount of the fine that was issued to the pilot?  We sent you the inspectors report in August with the samples.   The pilot was issued a misdemeanor fine and he paid the fine.  It was his first violation that we issued to the applicator. He is not a repeat offender since we have not had a previous case with the applicator.
If you recall in our case:  1) 600-700 dead bees tested at a lethal level for Bifenthrin insecticide. This is clearly considered high level by the EPA.  The bee kill was reported to the EPA.  EPA is aware of your situation since you reported it to EPA as did another group.  Since SD has primacy with EPA, SDDA conducted the investigation.  I am not sure what the count on dead bees, the amount of bees that were sent to the lab was barely enough to run the sample.  Our State Apiarist stated the hives looked healthy and in good condition when he conducted his inspection.  
2) Our clothes tested positive for the chemicals and our injuries are noted in the inspection report.  Yes, your clothes tested positive since you were on the road trying to get him to stop.
3) We have a letter from our veterinarian confirming that my dog's illness coincided with the acute poisoning symptoms on the chemical label. 
3) We were reported to the EPA for violating §180.434.  Yes… EPA asked if this was the same case that was previously reported to them.  SDDA has been/was in communication with EPA and provided our findings to EPA, as we do with many of the cases.  EPA reviews our work and offers constructive feedback on an annual basis on our investigations and outcomes.   EPA is very critical when offering feedback to our pesticide program and investigations.  Staff attends training on a regular basis on conducting investigations and determining outcomes. We treat each investigation as if we are going to go to court.
4) Video, photos, and an eyewitness report recorded the pilot too close to our bodies with the plane wings.  Yes, we used the video to determine the plane height when spraying.
 
SDCL 38-21-15.   Pesticide handling causing injury or pollution prohibited--Rules and regulations--Penalty for violation. No person may transport, store, use, dispose of, or handle any pesticide, pesticide container, rinsate, or application equipment in such a manner as to endanger or cause injury to humans, vegetation, crops, livestock, wildlife, or beneficial insects or to pollute groundwater or surface water. The secretary of agriculture may promulgate rules pursuant to chapter 1-26 governing the storing, transport, use, disposal of, and handling of such pesticides, pesticide containers, rinsate, and application equipment. Any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation.
 
Does the SDDA have funds set aside to help victims with recovery efforts and cleanup from events such as this when the applicator does not have any insurance to cover it or refuses to provide evidence of insurance?   For example, cleaning the surfactants from house siding, windows, buildings, vehicles, and mailboxes and removing all the contaminated materials and properly disposing of it.  SDDA does not have funds set aside to assist with clean up, crop damage etc.   SDDA only has the authority to enforce current laws and rules that are set forth by SD Legislature and that are often in line with Federal Regulations. 




 
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