> If I start a tire fire on purpose and smoke out my downwind
> neighbours and damage their property, I suspect I could be
> sued in almost any jurisdiction. How is this different?
There are many differences. The farmer is certain to be held harmless and
blameless if he follows the regs and the label.
The only liability in Canada would appear to be with the manufacturer of
defective seed coatings that refused to stick to the seed. The answer in the
USA is less complex as it seems that one can only buy pre-treated seed, but
the actual USA labels are distressing. See below.
>> At least in the U.S., the planting of treated seed
>> is not legally considered as a pesticide application.
The above is wrong. There is still a pesticide label (a "seed bag tag") to
obey for treated seed (see link below), and that label has specific
requirements, and "the label is the law", as regulated by the EPA. So the
act of planting treated seed certainly is subject to EPA pesticide
regulations, and we can expect that language to tighten up and become more
explicit as a result of the work ongoing to address the seed-drill-dust
issue.
Details below. A bit longish.
CANADIAN LABELS
===============
In Canada, they have "the seed act", which prompts Bayer to have a
Canada-specific label and booklet with specific instructions and cautions.
Label:
www.bayercropscience.ca/English/LabelMSDS/262/File.ashx
http://tinyurl.com/p9dfx6c
Booklet:
http://pr-rp.hc-sc.gc.ca/1_1/view_label?p_ukid=33850688
http://tinyurl.com/nohclkr
Provinces can have regulations that are more stringent than the Canadian
federal regs, but no less strict:
http://www.hc-sc.gc.ca/cps-spc/pubs/pest/_fact-fiche/reg-pesticide/index-eng
.php
http://tinyurl.com/ohxmmm5
In this case, it is not clear if the farmer bought the clothianidin product
(Poncho?), and added it to his seed himself, or not.
If he bought it himself, the label says "An appropriate colourant must be
added", and presumably he is only permitted to add a maximum amount of the
pesticide per each pound of seeds to be planted.
Regardless, the label says "Regulations pertaining to the 'Seeds Act' must
be strictly adhered to when using this product", and also gives the
following bee cautionary statement: "Clothianidin is toxic to bees. Bees can
be exposed to product residues in flowers, leaves, pollen
and/or nectar resulting from seed treatments. Dust generated during planting
of treated seed may be harmful to bees and other pollinators. To help
minimize the dust generated during planting refer to the "Best Management
Practices for Seed-Applied Insecticides"... Any spilled or exposed seeds
must be incorporated into the soil or otherwise cleaned-up from the soil
surface."
So, while the person running the seed drill is informed that the dust "may
be" harmful to bees and other pollinators, he is merely encouraged to "help
minimize dust". He is only REQUIRED to clean up spilled or exposed seed.
(For seeds spilled on rock, refer to Luke 8:6 for best management practices,
and for seeds spilled on the ground, refer to Genesis 38:9.) But if the
planting is done in accordance with the Seed Act, with the label
instructions as approved by Health Canada PMRA and with any Provincial-level
regulations, compliance buys the farmer a solid immunity from claims, as he
was not "negligent".
USA LABELS
==========
In the USA, the Ponco-600 label:
http://www.cdms.net/LDat/ld7P4003.pdf
Says: "For use by commercial treaters only. Not for use in agricultural
establishments..." So it seems that farmers cannot mix the pesticide into
their seed mix themselves, but can only buy treated seeds.
The label also says "The Federal Seed Act requires that the container of
seed treated with PonchoR 600 must be labeled with the
following statements: This seed has been treated with Poncho 600, which
contains clothianidin. Do not use treated seed for food, feed or oil
processing. In addition, the US Environmental Protection Agency requires the
following statements on the container of seed treated with Poncho 600:
Store away from feeds and foodstuffs. Rapeseed greens and seed grown or
harvested from Poncho 600-treated seed must not be used for feed or human
consumption. Rapeseed grown and harvested from Poncho 600-treated seed is
only for industrial uses and can not be used for edible oil or any other
human/feed consumption. Wear long-sleeved shirt, long pants, shoes, socks,
and chemical-resistant gloves when handling treated seed. Dispose of all
excess treated seed. Left over treated seed may be double sown around the
headland or buried away from water sources in accordance with local
requirements. Do not contaminate water bodies when disposing of
planting equipment washwaters. Dispose of seed packaging in accordance with
local requirements. This compound is toxic to birds and mammals. Treated
seeds exposed on soil surface may be hazardous to birds and mammals. Cover
or collect treated seeds spilled during loading. For Field Corn, Popcorn:
Immediate Plant-back:Cereal grains, Field corn, popcorn, sweet corn,
rapeseed, canola, soybeans, root and tuber vegetable, 30-Day
Plant-back:Grasses, non-grass animal feeds, dry beans, 8-Month
Plant-back:Sugar cane, 12-Month Plant-back:Any crops without an earlier
plant-back interval. For Sweet corn, Canola, Rapeseed, and Sorghum:
Immediate Plant-back:Cereal grains, Field corn, popcorn, sweet corn,
rapeseed, soybeans, canola, sorghum, root and tuber vegetables, 30-Day
Plant-back:Grasses, non-grass animal feeds, dried beans, 4-Month Plant-back:
Any crop without an earlier plant-back interval."
What's missing in all those precautions and warnings about this pesticide?
Unlike the Canadian label, THERE'S NO MENTION OF BEES! No cautionary
statement, nothing. Same for Poncho Beta and Poncho VOTiVO. (Poncho
Villa's still dead.)
Bayer's "PROSPER" Clothianidin formulation does have a bee cautionary
statement on the label, and requires it on the treated seed label (the "seed
bag tag") too: "This compound may be highly toxic to bees exposed directly
(contact). Ensure that planting equipment is functioning properly in
accordance with manufacturing recommendations to minimize seed coat abrasion
during planting to reduce dust which can drift to blooming corps or weeds."
So the US farmer faces no liability at all if using seed treated with
PONCHO, as bees and other beneficial insects are not even mentioned in a
cautionary statement. I guess they were absolutely certain that the poison
would stick to the seeds. But if he uses seed treated with PROSPER, he has
a similar minimal duty of due care to the Canadian farmer. The difference
in the labels is... intriguing.
On side note in the USA, the entire concept of "pollinator set-asides" is
exposed by this issue for what it is - a mere tax dodge by corporate farm
conglomerates that does nothing to save pollinators. The set-asides are
invariably un-plantable land (too damp, too steep, too small a corner where
the brook crosses the road...) so they are "set aside" as "pollinator
habitat", but they are directly adjacent to the use of pesticides on the
main crop, and most of these set-asides are too small to provide true
habitat for even the short-foraging range solitary bees and bumblebees.
COMMON TO BOTH
=================
The farmer who simply plants the pre-treated seeds available from the local
co-op, following the seed bag tag pesticide label instructions, cannot be
held liable, as he took no overt action to "start the fire", and per the
Billy Joel ruling of 9/89, would be immune, as it was "always burning".
Note that farmers may often have no choice at all, given the widespread use
of these seed treatments. He may only be able to afford pre-treated seed,
as untreated seed may be a "special order", or only available if he orders a
minimum number of bags.
The liable party would be the people who put the pesticide on the seeds, and
failed to use a strong enough adhesive. When this happened in Germany, I
was assured that the liable party was a local seed distributor who had used
the "wrong adhesive", and that Bayer had no ability to dictate which
adhesive was to be used in Germany, due to the serpentine EU regulations
regulating the situation. I was assured that such a thing could never
happen here. Hubris.
Then, Greg Hunt moved some hives to the edge of a cornfield to see what
would happen, and sure enough, he got a pesticide kill at planting time.
Nothing catastrophic, but enough to write a paper about. Then all hell
broke loose, as if there had never been drift and pesticide kills before.
There was a pow-wow down at Beltsville about this problem of corn, seed
drills, and dust a few months ago. I slogged through it over a video
conference link. The problem is being addressed by the correct stakeholders
with an honest effort to fix it, and I expect the labels to change quite a
bit as a result. My prediction is that there will be a growth market in
retrofit kits for seed drills to keep the dust down, and the retrofit kits
will be subsidized by the seed companies. I don't expect changes in
lubricants to be quickly adopted by famers, as they are slow to change. I
certainly don't expect the farmers to only plant on calm days, as one
absolutely does not delay planting.
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