October 11, 2010

At the Environmental Law Attorney Practice Group and through the www.enviroattorney.netwebsite we regularly receive questions and inquiries from the public. We make an effort to respond to requests as best as we can. As is noted in the disclaimer found at the bottom of this page and in this website, we cannot provide legal representation on any matter until we have completed a conflict check. Therefore, the responses to questions we receive do not constitute and should not be construed as legal advice. We recently received the following question from a resident of rural Minnesota:

Darryl W.: “I own a hog farm operation in rural Minnesota. We have 200 acres and 2,500 hogs. Earlier this summer our hogs and barn were sprayed with pesticides from an aerial sprayer who supposed to be treating a neighboring farmer’s crops. The fellow clearly missed the mark on more than one pass and dumped his load on our property. Who do I report this to? A number of my hogs that were exposed got really sick and later died. I came into contact with the sprayed material as I cared for the hogs. I am concerned that my health has been affected. Do I have a legal claim?”

Federal and state authorities regulate pesticides and herbicides. Due to toxic nature of these products, they are to be used only in strict compliance with labeling instructions.  Misuse of pesticides or herbicides may violate federal and state law. Each case needs to be investigated and evaluated on its own merits. State Departments of Agriculture have jurisdiction and regulate the use of pesticides and herbicides as well as the aerial application of these materials on fields and crops.

In most states citizens have the right to file complaints of possible pesticide mismanagement with these regulatory authorities. The government agencies have the authority to conduct inspections, review records of aerial applicators and landowners whose crops are being sprayed. The regulators are charged with investigating cases where there are allegations of misuse and misapplication or agricultural chemicals.

To proceed with an investigation the agencies need very specific information as to the background and circumstances related to the incident in question. A complainant should provide the date, time, location related to the incident as well as information as to land and crops being sprayed and, if known, the name of the aerial applicator and any related businesses. Complaint forms are typically available on the website of the state agencies that have the authority to conduct the investigation.

After an agency conducts an investigation it may, in cases where it deems there are violations of state laws or regulations, take enforcement action against the aerial applicator or others involved in the incident. The public can gain access to these governmental records but they may be kept private while an investigation and case are proceeding through the administrative process.

If you have been the victim of pesticide overspray incident, you may have a legal claim against the aerial applicator and others associated with the incident. Once again, each case needs to be investigated carefully. To prevail on a claim, a party must meet a number of threshold criteria. To maintain a claim, a party may need to show a causal connection between the incident and health impacts, property damage or other claims of damages. All legal claims are subject to statutes of limitation, that is they must be brought in a timely manner. The law and rules on these matters vary from state to state. You should consider retaining competent counsel to evaluate the facts surrounding your case.

At the Hessian & McKasy Environmental Law Attorney Practice Group we advise clients on a range of environmental matters including allegations of pesticide misuse or misapplication of pesticides. We work and collaborate with attorneys across the country who are experienced and knowledgeable in these matters. We offer clients legal service packages including a Litigation Claims Assessment Package.  To learn more, please go to:https://www.enviroattorney.net/sample-price-list.php.

The views contained within this entry and on this website are my own and do not constitute those of Hessian & McKasy, a Professional Association.


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