Pesticide Drift Liability

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"Pesticide drift" usually refers to unintentional pesticide or herbicide application. Pesticide drift can become a problem if the pesticide contacts an area or a crop susceptible to the particular substance being used. Farmers should take precautions to avoid causing pesticide drift. If, despite a farmer's best efforts, a neighboring landowner claims he was harmed by a farmer's drift, there are a few things the farmer can do. In many states, a farmer can be held liable for allowing her pesticides or herbicides in a careless or negligent manner. Federal law imposes the same requirements. 7 USC 136j(a)(2)G). This post is all about avoiding or reducing liability for unintentional pesticide drift. 

Five Steps to Prevent Pesticide Drift

  1. Read your labels. By law, pesticide and herbicide labels must include certain information often including brand name, active ingredients, EPA registration, and application instructions. State and federal law require farmers to apply pesticides and herbicides in accordance with the labeling approved by the EPA or the applicable state regulations.
  2. Be aware of drainage ditches, wetlands, and other water bodies in the vicinity of the ground to which you intend to apply pesticides. Apply the pesticide in a way that prevents the chemical from entering local waterways. 
  3. Be aware of neighboring crops. Certain plants are very susceptible to various pesticides. For example, cantaloupes are delicate plants and many row crop herbicides (like 2, 4-D or paraquat) will cause extensive damage to cantaloupes or other melon crops. Likewise, a neighbor growing organic tomatoes may be more sensitive to herbicide use than a neighbor growing traditional hybrid corn.
  4. Keep an eye on the weather. Do not apply pesticides when it is windy, rainy, or extremely hot. The chemical can blow or wash away from the treatment area or can volatize into a gaseous state.
  5. Consider the EPA's Drift Reduction Technology Program. The purpose of the DRT program is to encourage the development, manufacture, and use of spray technologies scientifically verified to reduce pesticide drift. 

Four Responses to Pesticide Drift

  1. Notify your insurance carrier. Whether you are the farmer whose crops have been damaged by someone else's negligence, or are the person who is accused of allowing your pesticides or herbicides to enter another's property, an early step to reduce liability is to notify your insurance company. 
  2. Save labels, containers, application records, and photographs. Many states have laws regarding retention of pesticide applications. Even if your state does not, it is a good idea to retain records showing what you applied to your crop and when. Preservation of evidence is important for the pesticide user and for the farmer whose crop was damaged.
  3. Hire an attorney. Negligence, nuisance, trespass, and "use inconsistent with a label" are potential claims related to alleged pesticide drift. An attorney can help you sort out your claims and/or defenses. 
  4. Determine your state's laboratory testing rules and capabilities. Some state chemist's offices can quickly test subject plants to determine whether that plant was affected by a specific pesticide or herbicide. Depending on the pesticide and the plants involved, these tests must be carried out soon after the alleged exposure to provide accurate results.

One Final Thought

Prevention truly is the best medicine when it comes to pesticide drift. Once the cat is out of the bag, it is difficult to mitigate the damages caused by unintentional pesticide drift. Talk to your neighbors, find out what they are growing, and work together if possible to reduce or eliminate the risk of damage to all of your crops.