Cal. Enforcement Letter on Dibrom & Lorsban
... for once, even Mr. Helliker who signs this order, gets it.
Helliker calls them "extremely dangerous pesticides that could
be fatal to human beings"
Subject: Expert says pesticides making life dangerous..........................
Date: Mon, 6 Aug 2001 08:43:30 -0400
From: Stephen Tvedten <steve@getipm.com>
Organization: Get Set Inc. (www.getipm.com)
To: Paul Helliker <phelliker@cdpr.ca.gov>
Director, State of
California, Department of Pesticide Regulation
cc: Christine Whitman whitman.christine@epa.gov
CDPR (California Department of Pesticide Regulation)
Enforcement Branch
Enforcement Letter 2000-035, Attachment
BEFORE THE DIRECTOR OF THE DEPARTMENT OF PESTICIDE
REGULATION STATE OF CALIFORNIA
In the Matter
of the Decision ofAdministrative Docket No. 090 the Agricultural Commissioner of
the County of Fresno
DECISION (County File No. 026-ACP-FRE-99/00)
HUGHES FLYING SERVICE P. O. Box 112 El Nido, California
95317-0112
Appellant /
Procedural Background
Under Food and Agricultural Code (FAC) section 12999.5,
county agricultural commissioners may levy a civil penalty up to $1,000 for each
violation of certain State pesticide laws and regulations.
After giving notice of the proposed action and providing a
hearing, the Fresno County Agricultural Commissioner found that Hugh’s Flying
Service violated section 6614(a)(b)(1) of Title 3, California Code of
Regulations (3 CCR) and FAC sections 12972 and 11791(b).
The commissioner imposed a penalty of $1,000 for each of the three
violations, for a total penalty of $3,000.
Hugh’s Flying Service appealed from the commissioner's
civil penalty decision to the Director of the Department of Pesticide
Regulation. The Director has
jurisdiction in the appeal under FAC section 12999.5.
Appellant's
Contention/Grounds for Appeal
Hugh’s Flying Service appealed on the grounds that (1)
the violations were not supported by substantial evidence, and (2) the civil
penalty is excessive in that only one of the statutes found to be violated
establishes a standard of conduct and the others are merely guidelines.
Standard of Review
The Director decides the appeal on the record before the
Hearing Officer. In reviewing the commissioner's decision, the Director looks to
see if there was substantial evidence, contradicted or uncontradicted, before
the Hearing Officer to support the Hearing Officer's findings and the
commissioner's decision. The
Director notes that witnesses sometimes present contradictory testimony and
information; however, issues of witness credibility are the province of the
Hearing Officer.
The substantial evidence test requires only enough relevant
information and inferences from that information to support a conclusion, even
though other conclusions might also have been reached.
In making the substantial evidence determination, the Director draws all
reasonable inferences from the information in the record to support the
findings, and reviews the record in the light most favorable to the
commissioner's decision. If the
Director finds substantial evidence in the record to support the commissioner's
decision, the Director affirms the decision.
Authority to Levy Fines
FAC section 12999.5 authorizes the commissioner to levy
fines for violations of certain State pesticide laws and regulations.
Section 12999.5 authorizes a fine up to $1,000 for each such violation.
When levying these fines, the commissioner must follow the
fine guidelines in the State's pesticide regulations, 3 CCR section 6130.
Under section 6130, a minor violation is one that did not create an
actual health or environmental effect or did not pose a reasonable possibility
of creating a health or environmental effect, and the fine range is $50 to $150
per violation. A moderate
violation is a repeat of a minor violation or one that posed a reasonable
possibility of creating a health or environmental effect, and the fine range is
$151 to $400 per violation. A
serious violation is a repeat of a moderate violation or one that created an
actual health or environmental hazard, and the fine range is $401 to $1,000 per
violation.
Violation of 3 CCR Section 6614 (a)(b)(1)
Section 6614(a) requires pesticide applicators, prior to
and during an application, to evaluate the equipment to be used, meteorological
conditions, the property to be treated, and surrounding properties to determine
the likelihood of harm or damage. Section
6614(b)(1) prohibits making or continuing a pesticide application when there is
a reasonable possibility of contamination of the bodies or clothing of persons
not involved in the application process.
This proceeding resulted from an aerial pesticide
application to a cotton field made by the appellant, which occurred on the
morning of September 7, 1999. The pesticides being applied were Dibrom and
Lorsban.
Information in the record (the Lorsban label) shows that
the pesticide Lorsban may be fatal if swallowed; is harmful if absorbed through
the skin; causes substantial but temporary eye injury; and causes skin
irritation. The label warns to
avoid breathing vapor or spray mist; not to get the pesticide in the eyes, on
skin, or on clothing; to immediately remove contaminated clothing and wash it
before reuse; and to destroy contaminated shoes.
The Dibrom label shows that the pesticide causes
irreversible eye and skin damage; it may cause allergic skin reaction; and it
may be fatal if swallowed, inhaled, or absorbed through the skin.
The label warns not to get the pesticide in the eyes, on skin, or on
clothing, and not to breath vapor or spray mist.
At the time of the application, appellant’s pilot, Hugh
Taylor, was aware that both pesticides were extremely dangerous pesticides that
could be fatal to human beings, and was aware there was a construction crew
working on the east side of the cotton field, and thus in danger.
The construction crew was working on an aqueduct levee located about 100
to 150 feet east of the cotton field. The Hearing Officer found that the wind
was blowing from the northwest away from the application site toward the
construction crew at the time of the application.
There is information in the record that the wind was
blowing at a speed up to ten miles per hour.
With the potential for drift of aerially-applied
pesticides, winds blowing from the application site toward the construction crew
at up to ten miles per hour, and the crew being so close to the cotton field,
there was a reasonable possibility that the bodies or clothing of the crew would
be contaminated with the pesticides if the application were made.
The construction crew tried to avoid the aircraft’s spray
pattern by moving to three different positions, but the pilot continued the
application, making as many as three passes over the workers.
Various members of the construction crew saw, smelled, and tasted the
pesticides; some saw the spray hit the windshields of their equipment or
vehicles; and some felt the spray on their skin.
One member of the crew, Mike Spencer, the grading foreman,
testified he got sprayed with mist while standing on the aqueduct.
He was sprayed again when the pilot was making loops in the opposite
north-to-south direction along the east edge of the field.
Mr. Spencer testified he waved the pilot off and felt the spray in his
face area, especially when he looked up and signaled the pilot.
Mr. Spencer also testified the wind was blowing west to east during the
application, and he could see the spray coming on his crew.
Another member of the crew, John Torba, testified there was
a steady west-to-east breeze, and he was sprayed on when the plane was making
east-west passes. He also testified
that when the pilot started his "closing passes" going north to south
on the edges of the field, the pilot came right over the crew and they got
sprayed on. He testified his pickup
truck’s windshield got sprayed, he felt spray droplets, he had to wash off his
glasses, and the sleeves and collar of his shirt got sprayed.
The shirt was a clean shirt that morning. A sample from the shirt tested positive for naled (Dibrom)
and chlorpyrifos (Lorsban). Two swab samples taken from some of the construction
equipment also tested positive for naled (Dibrom) and chlorpyrifos (Lorsban).
Fourteen members of the construction crew experienced symptoms as a result of
the pesticide application, and thirteen of the crew sought medical treatment.
The evidence is overwhelming that the appellant’s
application was made when there was a reasonable possibility of contamination of
the bodies or clothing of persons not involved the application process.
There is substantial evidence in the record to support a finding that the
appellant violated 3 CCR section 6614.
+++++++++++
Violation of FAC Section 12972
FAC section 12972 requires that persons use pesticides in a
manner to prevent substantial drift to nontarget areas.
To implement, interpret, and make FAC section 12972 specific, the term
"substantial drift" is defined in 3 CCR section 6000.
Under 3 CCR section 6000, drift is substantial if the quantity of
pesticide outside the area treated is greater than would have resulted had the
applicator used due care. Therefore,
to prevent substantial drift to nontarget areas, the applicator is required to
use due care--to use the care a reasonable pest control applicator would use
under the same or similar circumstances.
Under the circumstances that existed at the time of the
appellant’s application, a reasonable pest control pilot would have started
treating the western-most portion of the 157-acre cotton field, making
north-south passes.
The reasonable pilot would have stationed his flaggers on
the east side of the north-south passes so the flaggers could determine how far
the pesticide was drifting, and could signal the pilot to stop the application
if they thought the pesticide would drift off the cotton field to nontarget
areas. This process could have
continued easterly until the flaggers signaled the pilot to stop the application
once they thought the pesticide would drift off the cotton field.
Instead of taking these reasonable measures and
precautions, the pilot began the application with east-west passes when the wind
was blowing toward the nearby construction crew working just east of the cotton
field. By flying east-west passes,
the pilot had to fly over the crew when making turns.
Also, the pilot stationed the flaggers on the west edge of the cotton
field where they could
not provide sufficient surveillance of the application, the
construction crew, and how far the pesticide was drifting, and could not signal
the pilot to stop the application when they saw pesticide drifting close to the
easterly edge of the cotton field. Clearly,
this was not the care that was due under the circumstances when handing such
dangerous pesticides.
The pilot testified he left a buffer zone on the east side
of the field when making his east-west passes.
At the time of the application, he thought the buffer zone was about 600
to 650 feet, but after the application he determined it was about 800 feet to
the edge of the cotton field. However, one of the appellant’s flaggers
indicated to the county’s investigator that the plane’s spray nozzles where
shut off only about 100 to 150 feet from the east edge of the cotton field.
Some of the construction crew indicated they were 15 to 100 feet from the
application. Even if the pilot did leave a buffer zone on the east side of the
field when he made east-west passes, it was not a sufficient precaution to
prevent drift of the pesticide off the cotton field to nontarget areas,
including the nontarget aqueduct levee property where the construction crew was
working and vehicles and equipment were being operated by some of the crew.
The pilot also testified that he treated the easterly portion of the
field making north-south passes when the construction crew and equipment were
gone. However, as indicated above,
two members of the construction crew testified they were present and got drifted
on when the pilot made north-south passes along the east edge of the cotton
field. Apparently the Hearing
Officer did not find appellant’s testimony to be credible.
There is substantial evidence in the record that the pilot
did not use the care that was due to prevent the pesticides from moving off the
cotton field, and that the pesticides were not used in a manner to prevent
substantial drift to nontarget areas. There
is substantial evidence in the record to support a finding that the appellant
violated FAC section 12972.
Violation of FAC Section 11791(b)
Under FAC section 11791(b), it is unlawful for any person
subject to Division 6 of the FAC, including pest control businesses such as the
appellant, to operate in a faulty, careless, or negligent manner.
The appellant did not use the care that was due under the
circumstances as discussed above. A
person who does not use the care that is due is negligent. In this case, the
appellant was careless and negligent because the pilot began the application
with east-west passes when the wind was blowing toward the nearby construction
crew working just east of the cotton field; the pilot then had to fly over the
crew when making turns; and the pilot stationed the flaggers on the west edge of
the cotton field where they could not provide sufficient surveillance of the
application, the construction crew, and how far the pesticide was drifting, and
could not signal the pilot to stop the application when they saw pesticide
drifting close to the easterly edge of the cotton field. (See discussion below also).
There is substantial evidence in the record to support a
finding that the appellant operated in a faulty, careless, or negligent manner
and violated FAC section 11791(b).
What Amount of Penalty Should be Levied for the Three
Violations?
In written argument, the appellant contends the penalty is
excessive because the appellant "is charged with three violations for one
act of drift" and "if [appellant] did indeed drift, [appellant] did
one act of drifting, not three, and thus the fine should be at most $1,000 not
$3,000."
Also, the appellant appealed on the grounds that "the
civil penalty [is] excessive in that only one of the three statutes found to be
violated establishes a standard of conduct and the others are merely general
guidelines."
The appellant did not identify which "one of the
statutes found to be violated" it believes establishes a standard of
conduct and which of the statutes and regulations appellant believes are merely
guidelines. However, by asserting
that only one of the statutes found to have been violated establishes a standard
of conduct, appellant is asserting that the other statute and the regulation
found to have been violated are too vague and indefinite to be enforced.
I disagree.
FAC section 11791(b) provides it is unlawful for any person
subject to Division 6 of the FAC, including pest control businesses such as the
appellant, to operate in a faulty, careless, or negligent manner.
FAC section 12972 requires that persons use pesticides in a manner to
prevent substantial drift to nontarget areas. Under 3 CCR section 6000, drift is
substantial when the quantity of pesticide outside the area treated is greater
than would have resulted had the applicator used due care.
Section 6614 is entitled "Protection of Persons,
Animals, and Property" and its predecessor was section 3093.
Under 3 CCR section 6614(a), before and while applying a pesticide,
pesticide applicators are required to evaluate the equipment to be used,
meteorological conditions, the property to be treated, and surrounding
properties to determine the likelihood of harm or damage.
Under 3 CCR section 6614(b), pesticide applications are prohibited under
certain situations, including when there is a reasonable possibility of
contamination of the bodies or clothing of persons not involved in the
application process.
Each of these two statutory provisions and 3 CCR section
6614 establish a standard of conduct to be followed and that the enforcing
agencies and courts can measure after the fact. FAC section 11791 and former section 3093, the predecessor to
section 6614, have previously been before the courts in this regard.
The courts have held that "The operator is given sufficiently
definite notice as to the proscribed conduct when measured by common
understanding and practice and in the light of the potential for harm involved
in the use of pesticides by aerial application."
The applicable Agricultural Code and Administrative Code
sections as applied to Wingfield are not at all vague but are sufficiently
definite and certain to anyone associated with crop dusting or spraying by air .
. . . It would be difficult to conceive of any other language which would do the
job."
Wingfield v. Fielder (1972) 29 Cal.App.3d at p. 220, 105
Cal.Rptr. 619. Also see Medlock Dusters, Inc. v Dooley (1982) 129 Cal.App.3d
496, 181 Cal.Rptr. 80, and Holt v. Dept. of Food & Agriculture 171
Cal.App.3d 427, 218 Cal.Rptr.1 (Cal.App. 3 Dist 1985).
As the Court of Appeal stated in Wingfield (supra), citing
various references and cases, "The term ‘negligence’ has been defined
by the courts numerous times. Negligence signifies and stands for the absence of
care. Negligence is the failure to
observe, for the protection of the interests of another person, that degree of
care, precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury. ¶The
terms ‘faulty’ and ‘careless’ are defined in Webster’s Third New
International Dictionary by G. & C. Merriam Company: ‘Careless’ . . . 2: not taking ordinary or proper care . . . .
‘Faulty’ . . . 1a: marked by fault; having a fault, blemish, or
defect; imperfect, unsound . . . (his technique was faulty . . .)."
As discussed above, 3 CCR section 6614 prohibits pesticide
applications when certain situations exist even though substantial drift will be
prevented. The appellant violated this section, and a penalty should be levied
for its violation.
Having chosen to make the application when there was a
reasonable possibility of contamination of the bodies or clothing of the
construction crew, FAC section 12972 separately required the appellant to use
the pesticides in a manner to prevent substantial drift to nontarget areas.
The appellant violated this section and a penalty should be levied for
its violation.
Appellant violated FAC section 11791(b) because the
application was made in a faulty, careless, or negligent manner.
However, since the appellant’s negligent conduct under FAC section
11791(b) was the same negligent conduct under FAC section 12972, as made
specific by the definition of "substantial drift" in 3 CCR section
6000, only one $1,000 penalty should be levied in this case for the violations
of FAC sections 12972 and 11791(b). If
the county had presented evidence showing some additional faulty, careless, or
negligent conduct by the appellant that did not contribute to the drift of the
pesticide, then a separate penalty would be appropriate for that violation of
FAC section 11791(b). In this case,
however, the record shows no such evidence.
Conclusion
The record shows the commissioner's decision is supported
by substantial evidence in regard to the findings that appellant violated 3 CCR
section 6614 and FAC sections 12972 and 11791(b).
Disposition
The commissioner's decision is affirmed except as to the
amount of the penalty. The total penalty is reduced to $2,000, with a $1,000
penalty for the 3 CCR section 6614 violation and a $1,000 penalty for the
violations of FAC sections 12972 and 11791(b).
The commissioner shall notify the appellant how and when to pay the
$2,000 penalty.
The appellant‘s request for oral argument is denied.
Judicial
Review
FAC section 12999.5 provides the appellant may seek court
review of the Director's decision within 30 days of the date of the decision.
The appellant must bring the action under Code of Civil Procedure section
1094.5.
STATE OF
CALIFORNIA DEPARTMENT OF PESTICIDE
REGULATION
By:
______________________________
Dated: ___________________________ Paul
E. Helliker Director
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