Illinois Pesticide Review
July / August 2011
In This Issue
Avoiding and Handling Chemical Injury to Non-target Plants
Picture: This tomato plant is affected by glyphosate injury.
Well, it is summer and the curled and yellowed leaves have started to arrive at the U of I Plant Clinic. Puzzle pieces then have to be put together by me and other diagnosticians to determine if nearby pesticide (often herbicide) applications are possibly to blame for the injured plants that are dead, yellowed, curled, etc. Of course environmental conditions, diseases, and insect problems can mimic these symptoms, which makes a proper diagnosis especially challenging.
Couple this with all the different herbicides and various plants we have gracing our Illinois landscape and things can get complicated quickly. Then factor in the unknowns such as not knowing when a neighbor sprayed, what they sprayed, or even if they sprayed. The process has been likened by us as being "CSI for Plants". We are easily entertained you think, but at least we are enthusiastic about what we do. "CSI – Urbana". I like that.
Prevention of this unwanted pesticide injury to your plants is certainly important. It makes things easier for all involved. The reality is that pesticide applications are going to happen across Illinois this summer. Producers, landscapers, and others have crops, lawns, and other investments to protect from weeds, insects, and diseases. If you are a homeowner or perhaps a grower of a sensitive crop, I STRONGLY encourage you to build good relations with your neighbors and ask them for advance notice when they spray.
By law and depending on the type of application, they may not be required to give you notice. But, most are willing to provide this information if asked. If you are concerned about the health of your plants or maybe that of your family, share your concerns. If you know "what" will be sprayed "when," you can plan accordingly by covering your garden with old blankets, making sure the windows are shut, or keeping the kids out of the yard during that time. I'm not saying drift is permissible. Most applicators will do everything possible to prevent off target movement of pesticides. However, wind gusts and sudden changes in wind direction can occur. Talking with your neighbors is the FIRST step towards preventing drift.
I would discourage you from automatically filing a complaint with the Illinois Department of Agriculture (IDA) when you see the sprayer nearby. Not surprisingly, that is bad for good neighbor relations! You will have your neighbor's attention, but is that the type of attention you are looking for? Growers don't want their pesticide products to land on your plants any more than you do. With good neighborly communications, not only can herbicide injury be prevented but long, drawn-out court cases can also be avoided.
A helpful publication on this topic is "Reducing Pesticide Drift: Specialty Crops and Conventional Crops as Good Neighbors". It can be viewed at: https://my-s.extension.uiuc.edu/documents/960111006110611/reducingdrift.pdf.
Additionally, if you have a particularly sensitive crop or area that must be protected from pesticide drift, let neighboring applicators know about it. You can register your sites at Driftwatch.org, which is an online registry designed to help pesticide applicators, specialty crop growers, and stewards of at-risk habitats communicate more effectively to protect pesticide-sensitive areas. Sensitive crop areas registered on this site include beehives, certified organic crops, fruits, grapes, nursery crops, pumpkins, melons, tomatoes, and vegetables.
What to do if you suspect spray drift
Once again, neighborly discussions are important. Perhaps the two of you can meet to talk about the injury symptoms being shown and what possible causes there are. Consider when the symptoms first appeared and when the application was made. What pesticide was applied? Is there a pattern to the injury? Are many species showing symptoms or is it only one plant in a row of similar plants? What have the weather conditions been and what were they like at the time of application? Is the applicator willing to pay for damages or replace dead plants? It is often faster, easier, and cheaper to settle these disputes without legal involvement.
Compare what you are seeing to other plants. What does herbicide injury look like on landscape plants? Check out some pictures at http://urbanext.illinois.edu/hortanswers/ . Search by problem and then type in "herbicide". The pictures were the result of some recent U of I demonstration plots. You can even use your smart phone to view the pictures. Also, these pictures and more are available as a pocket-sized, spiral-bound flip book for $10. To purchase, call U of I Crop Sciences at 217-333-4424.
You can send affected plant samples to the University of Illinois Plant Clinic. For information on how to do so, click on: http://web.extension.illinois.edu/plantclinic/. Be sure to include as much relevant information as possible. Keep in mind that the Plant Clinic does not perform pesticide residue tests, and without such tests, the cause of a symptom cannot be attributed to pesticide drift with 100% certainty. However, it is possible for Clinic staff and specialists to rule out other possible causes and establish whether the likely cause is drift.
If you choose to file a complaint with IDA, time is of the essence. The pesticide drift complaint process is started by calling IDA's Bureau of Environmental Programs at 1-800-641-3934 (voice and TDD) or 217-785-2427 for a complaint form. Complaint forms must be received by IDA within 30 days of the incident or within 30 days of when the damage was first noticed. Complaints filed after that will be kept on record, but no administrative action can be taken.
The complaint process
Once a complaint is filed with the department, a field inspector is assigned the case. In most cases, the inspector will interview the complainant and inspect the site. Various types of samples, such as plants, water or soil, may be collected for analysis at an approved laboratory. The inspector may also interview applicators in the area, examine pesticide records, and collect weather data in an attempt to determine the nature and cause of the damage. The field investigator will then submit a report to the Department for review.
Both parties will receive written notification if the Department finds a violation and takes an enforcement action. Penalties range from advisory or warning letters to monetary penalties of $750 to $10,000, depending on the type and severity of the violation. Penalties are determined through a point system defined in the Illinois Pesticide Act. Even if a violation of the Illinois Pesticide Act cannot be substantiated, both the complainant and the alleged violator will be notified in writing of the complaint's status. Remember, the Department's role in pesticide misuse incidents is limited to determining whether a violation has occurred. IDA cannot help complainants recover damages.
Will affected plants die?
That is the million dollar question and the answer is that it depends. The degree to which the plant is affected depends on several factors: the type and amount of chemical applied, the time of year, the growth stage of the plant, overall health of the plant, etc. The healthier the plant is (adequate fertilizer, moisture, and light) the more likely it is to survive.
For more drift resources, check out the University of Illinois Pesticide Safety Education website at: www.pesticidesafety.uiuc.edu.
"Like" Us and Win!
The IL PSEP Team has a Facebook page where you can find some of the latest doings related to pesticides, application and safety, and maybe a funny comment or two.
We want you to easily follow our status updates. So, we're sponsoring a contest.
Before September 15, 2011, search for Illinois Pesticide Safety Education on Facebook and click "Like". We'll put your name in a drawing for a free registration at one of this winter's pesticide clinics, a $40 value. Okay, so it's not a new car or a trip to Italy, but it's the best we can do. We'll even reserve a seat in the back or front of the room for you, your choice.
Container Refilling and Repackaging
The following EPA Fact Sheet summarizes the pesticide refillable container and repackaging regulations that go into effect after August 16, 2011. Many of these changes are intended to increase the selection of proper bulk and mini-bulk tanks for pesticide use. Portable tanks contain baffles or other mechanisms to decrease sloshing within the tank. They are also composed of materials that are better able to withstand the jarring, bumping, and uneven load distribution associated with transport than are stationary tanks. For more information, check out: http://www.epa.gov/pesticides/regulating/regulations_at_a_glance.htm .
Refillable Container and Repackaging Fact Sheet
Prepared by U.S. EPA Office of Pesticide Programs (03/18/11)
New Requirements in 2011
If you repackage pesticides under contract/agreement with a registrant, you must comply with the following requirements when you repackage a pesticide (and release it for shipment1) after August 16, 2011:
1. Standards for your stationary bulk tanks;
2. Standards for your portable refillable containers (i.e., minibulks, intermediate bulk containers or IBCs, refillable drums); and
3. Operational and recordkeeping requirements regarding repackaging.
1. Standards for Stationary Tanks
Stationary tanks (with a capacity of 500 gallons or more and that are at the facility of a refiller operating under contract with a registrant) must:
• Be durably marked with a serial number or other identifying code;
• Meet certain integrity/strength standards;
• Have a vent;
• Have a shut-off valve on any connection below the normal liquid level; and
• Not have an external sight gauge. [§165.45(d) & (f)]
2. Portable Refillable Containers
Independent refillers (that are not the registrant of the pesticide) must repackage into portable refillable containers that:
• Comply with at least DOT Packing Group III standards that EPA adopted;
• Are durably marked with a serial number/identifying code (except for antimicrobial pesticides for use only in swimming pools);
• Have a tamper-evident device or a one-way valve or both on each opening other than a vent (except for antimicrobial pesticides for use only in swimming pools2); and
• Are on the registrant's description of acceptable containers. [§165.45(a)-(e); §165.70(e)(3)]
3. Repackaging Requirements
The repackaging regulations include the following types of requirements. The first and third types are described in more detail below.
• Conditions for repackaging under a registrant's existing registration, which apply to registrants and independent refillers [§165.67(b); §165.70(b)]
• Registrants must develop and provide certain information to each independent refiller:
-o Written contract;
-o A refilling residue removal procedure that describes how to clean the container before it is refilled, if cleaning is necessary; and
-o A description of acceptable containers that can be refilled with that pesticide [§165.67(d), (f) & (g)]
• Requirements for independent (non-registrant) refillers [§165.70(e)]
A. Conditions for Repackaging
Under §165.67(b) and §165.70(b), a registrant may allow an independent refiller to repackage a pesticide under the registrant's existing registration if:
• There is no change to the pesticide formulation;
• The refiller's establishment is registered with EPA;
-o And the pesticide is repackaged at the establishment or at the site of an end user who intends to use/apply the pesticide
• The registrant and refiller have entered into a written contract to repackage the pesticide and use the pesticide's label;
• The pesticide is repackaged only into containers that comply with the refillable container requirements; and
• The pesticide is labeled, with the only changes being the net contents and the refiller's EPA establishment number.
B. Refiller Requirements
An independent refiller must comply with all of the requirements in §165.70(e). The following requirements set general requirements for the repackaging. The refiller must:
1. Register the establishment as presently required by 40 CFR 167.20;
2. Not change the formulation;
3. Repackage only into a refillable container on the registrant's description of acceptable containers;
4. Can repackage any quantity into a refillable container and there are no container size limits in the regulations;
5. Have the following items at the facility before repackaging:
• Written contract with the registrant
• Pesticide label and labeling
• The cleaning procedure (refilling residue removal procedure) for that pesticide from the registrant; and
• The description of acceptable containers for that pesticide from the registrant.
The following requirements apply each time a container is refilled. The refiller must:
6. Identify the pesticide previously in the container (by looking at the label);
7. Visually inspect the container to ensure that it is in good shape;
8. Clean the container if necessary;
• The refillable container must be cleaned between uses unless all tamper-evident devices and one-way valves are intact (if they are required) and the container is filled with the same or a very similar product; and
9. Ensure the container is properly labeled.
The following recordkeeping and reporting requirements apply to the refillers. A refiller must:
10. Maintain records of the information from the registrant (contract, cleaning procedure and description of acceptable containers);
11. Each time the container is refilled, the refiller must record the date, serial number/code of the container; and the EPA registration number of the pesticide (except for antimicrobial pesticides for use only in swimming pools); and
12. Maintain records of pesticide production and distribution as presently required by 40 CFR Part 169 and report production as presently required by 40 CFR Part 167.
You can obtain the complete rule and additional information (such as frequently asked questions) from EPA's Container and Containment web page: http://www.epa.gov/pesticides/regulating/containers.htm.
(Submitted by Phil Nixon)
1 A product becomes released for shipment when the producer has packaged and labeled it in the manner in which it will be distributed or sold, or has stored it in an area where finished products are ordinarily held for shipment. See 40 CFR 152.3 for the full definition.
2 "Antimicrobial pesticides for use only in swimming pools" includes products that are labeled for use only in swimming pools and the related sites of spas, hot tubs and whirlpools.
USDA to Review Roundup Ready Sugar Beets
In mid-May, the US Court of Appeals rejected Monsanto's appeal of a case that prevented the company from planting genetically engineered (GE) Roundup Ready sugar beets without a thorough study by the USDA.
The lawsuit, filed in 2008, was brought by the Center for Food Safety (CFS), Organic Seed Alliance, and others, demanding that the USDA prepare a rigorous review of the environmental impact study (EIS) of the GE sugar beets as required by the National Environmental Policy Act (NEPA). The USDA approved the use of the GE sugar beets without a review. CFS argued that the beets would contaminate organic and non-GE related crops, such as table beets and chard, and worsen the Roundup resistant weed issues.
Interestingly, the USDA has only prepared two environmental impact statements for GE crops, both ordered by the courts. During the appeal of the case, the USDA approved 2011-2012 planting of GE sugar beets under deregulation and a unique permitting process that is also subject of litigation.
According to CFS attorney George Kimbrell, "Because of this case, there will be public disclosure and debate on the harmful impacts of these pesticide-promoting crops, as well as legal protection for farmers threatened by contamination."
According to the Sugar Industry Biotech Council, "Whether from sugar beets or sugar cane, or from sugar crops grown using conventional, biotech or organic methods, sugar is pure and natural and has identical nutritional value, composition and wholesomeness. The sugar is the same no matter its original plant source or growing practice."
They also contend that "biotechnology-enhanced sugar beets are helping growers manage weeds, improve productivity and lessen impacts on the environment, while preserving a sustainable and geographically diverse supply of sugar. Additionally, experimental sugar cane varieties containing various biotech traits are being thoroughly evaluated around the world." For more information check out http://www.sugarindustrybiotechcouncil.org/.
LibertyLink Rice Contamination Lawsuit Settled
In early July, Bayer CropScience settled a lawsuit brought by rice farmers in five states including Missouri, Arkansas, Texas, Louisiana, and Mississippi for $750 million (!) over contamination of the US rice crop by LibertyLink genetically modified rice in 2006, with a settlement filed in a St. Louis court.
(Back in 2000, the chemical company Aventis ran into a similar problem with a modified gene in corn called StarLink, approved for livestock consumption and industrial uses but not human consumption. However, StarLink germplasm was found in taco shells, and a resulting PR nightmare followed.)
LibertyLink genetically modified rice, like Roundup ready corn and soybeans, allows growers to use Bayer CropScience post-emergence herbicides such a glufosinate (Liberty, Basta) and Ignite on the rice to control weeds.
Unfortunately, the genetically modified (GM) rice was not yet approved for human consumption by the USDA at the time. When discovered, the rice futures took a beating, and European countries and Japan banned the import of the rice. Within weeks of the ban, more than 400 lawsuits involving 11,000 plaintiffs were filed.
Don Downing, co-lead counsel for the plaintiffs, noted that the lawsuit was not an anti-GMO (genetically modified organism) action since many of the farmers used GM crops. It was based on the loss of earnings due to the contamination of the US rice crop by an unapproved GM rice.
LibertyLink rice has been approved for human consumption since 2006, but is not currently marketed to farmers for production. There are other LibertyLink crops including canola, corn and soybeans. LibertyLink and Roundup Ready are the only two modified genes approved for crops.
Prior to the class action lawsuit, several juries awarded various farmers not involved in the lawsuit from $500,000 to $6 million in actual damages and up to $42 million in punitive damages against Bayer CropScience.David Robson
Clean Water Act Bill
The US House of Representatives Transportation and Infrastructure committee chairman John Mica (R-FL) and Mick Randall (D-WV) introduced a bill (HR 2018) to limit the enforcement of the Clean Water Act.
Titled the Clean Water Cooperative Federalism Act of 2011, it passed the US House on a 239 to 184 vote on July 13. Eight members did not vote. Please note that this is different than the HR872 "NPDES Fix" bill, which also deals with the Clean Water Act. You may have seen it mentioned recently on our website.
Faithful readers of IPR and attendee's at last winter's pesticide training clinics will recognize the Clean Water Act as a major component of last spring's NPDES action by the US Environmental Protection Agency (US-EPA) for states to develop a permitting program for the use of pesticides in, on or near water. That requirement was based on court action forcing the US-EPA to act.
On the state of Illinois level, the agricultural industry and pesticide educators were concerned with the regulations imposed that had the potential to conflict with FIFRA, the federal act that currently governs the use of pesticides including the licensing of applicators and operators. The US Court of Appeals granted the US-EPA a stay until late fall 2011; in the meantime, several bills were introduced in the US Congress to grant exemptions and/or allow FIFRA to take precedent over NPDES.
The Mica-Randall bill essentially strips the US-EPA from reversing or overruling state water quality limits, permitting authority, dredging and waterway activities, and rulings related to wetlands. There are four parts of the act, which will: 1) limit the EPA from promulgating a revised or new water standard without the state's approval; 2) prevent the US-EPA from superseding the state's determination that a discharge complies; and 3) withdraw approval of a state's NPDES program on the basis of EPA's disagreement with the state regarding implementation of NPDES standards. Section 4 deals with disagreements between states and the US-EPA on municipal water supplies, shellfish beds and fishery areas. The bill also requires the US-EPA and US Fish and Wildlife Service to respond to discharge permits in navigable water within 30 days (60 if additional time is required).
According to the Ag Professional website, Mica's interest comes from new nutrient level oversight in Florida, and Randall's from mining interests including US-EPA's stopping companies from removing mountain tops to get to the coal underneath.
As you can imagine, the US-EPA and environmental groups oppose the action, which could undo 40 years of the Clean Water Act. The US-EPA's position is that water is not solely an intrastate entity but one that is interstate, moving throughout the nation. State laws tend to be much easier to change.
The agriculture industry is concerned that US-EPA is interpreting the Clean Water Act in areas not intended since the act's 1972 passage, such as the nutrient level oversight. The ag industry and others are also concerned that the US-EPA doesn't always follow normal scientific community definitions when determining actions.
The US House is currently in a pro-state mode, and representatives believe that states have the ability and quality of oversight to best manage the water in their state. However as most growers, applicators, and consumers know, there are many areas where there are no uniform laws and regulations between one state and the next, and it's possible that producers and pesticide applicators near borders, or those that work in several states, may have to contend with several sets of conflicting laws. A downstream state would have no recourse against a polluter upstream, who may be abiding by laws of the upstream state but in violation of the downstream state.
Like all US laws, both chambers of Congress must approve of a bill, which then goes to the President for his signature. Just because the Clean Water Cooperative Federalism Act of 2011 passed the House, doesn't mean it will pass the Senate nor win the President's signature.
How this action affects NPDES and the October extension is unclear.
Like most action that involves Washington, DC, stay tuned.