Pesticide Applicator Loses Lawsuit
January 21, 2011 A California appeals court has ruled that pesticide suppliers and applicators are liable if their chemicals spread to an adjacent organic farm, upholding a $1 million judgment against Western Farm Service.
“It establishes what we feel is a dangerous precedent,” said Dale Dorfmeier, the defense attorney for Western Farm Service.
In September 2008, a jury awarded $1 million to an organic farm in Santa Cruz, CA, Jacobs Farm Del Cabo, whose edible herbs were contaminated by organophosphate (OP) crop protectants that were sprayed on an adjacent Brussels sprouts field. The Sixth District Court Appeal in San Jose, in a 3-0 decision, upheld the jury’s award.
A Troubling Decision
The decision is troubling on a number of levels, said Dorfmeier. For one thing, the materials were sold and applied by Western Farm Service according to the label and within the permits issued by the county agricultural commissioner. “This application was permitted and approved for Brussels sprouts,” he said. “Everything we did was investigated by the ag commissioner, and no violations were found.”
Dorfmeier said it was movement from post application dust raised by strong coastal winds, from coastal fogs which accumulated the evaporated organophosphates, and to a certain extent regional background levels caused by growers in the general area, that all contributed to the inadvertent residue problem. The organic herbs’ oily leaves made the pesticides adhere at levels of about 1-2 parts per million. While safety levels are up around 50 ppm, technically no pesticides at all can be found as far as organic retailers are concerned.
Another troubling aspect to the decision is that California, like many specialty crop growing areas, has a widely diverse farming environment. Which grower in a given area is responsible for what? The Brussels sprouts had been grown in the area for generations. “If an incompatible grower sets up in an area, what can he expect?” said Dorfmeier. “It’s his obligation to ensure adequate buffers exist.”
Furthermore, should conventional growers be held liable long after a given application? There are any number of ways a pesticide could move off a property after an application, noted Dorfmeier. “This decision affects every grower who uses a pesticide,” he said.