Idaho committee votes to loosen regulation on crop-duster pilots, pesticide applicators
Idaho lawmakers are moving forward with a bill changing state pesticide and crop-duster rules, despite an analysis from the Idaho Attorney General’s Office warning that the legislation could limit state officials’ authority to enforce federal EPA regulations.
Members of the Idaho House Agricultural Affairs Committee listened to more than two hours of testimony on House Bill 487 — mostly from the Idaho Agricultural Aviation Association, the crop-duster group that proposed the bill.
The legislation would make a series of changes to state laws governing pesticides and aerial applicators, loosening some restrictions on crop dusters and changing state agricultural investigators’ authority to regulate pesticide spray.
Notably, the bill also would remove language the Idaho State Department of Agriculture used to cite a crop-duster pilot who several Canyon County farmworkers claimed sprayed them with a fungicide in May 2019.
The bill will next move to the full House for consideration.
Jonathan Oppenheimer of the Idaho Conservation League summarized the analysis from the AG’s office, which raised serious concerns about how the bill would change the ability to enforce Environmental Protection Agency regulations. However, it’s unclear whether lawmakers read the full report on the bill, originally requested by Rep. Sally Toone, D-Gooding.
Toone and other committee members, such as Rep. Ryan Kerby, R-New Plymouth, suggested that the bill be held for further testimony and a chance to review the AG’s nine-page analysis before voting. Instead, the committee voted to advance the bill without further testimony, sending it to the House floor.
Some members thought the bill didn’t do enough to lessen the regulatory burden on crop-duster pilots and other pesticide applicators.
“What you’ve described is the very essence of tyrannical government,” said Rep. Gary Marshall, R-Idaho Falls, in response to a description of the current disciplinary and dispute process. “I can hear James Madison very loudly in my mind. This is the very essence of tyranny.”
What could this mean for Idaho farmworkers?
In her response to Toone’s questions, Deputy Attorney General Katy DeVries wrote that removing the words “faulty” and “careless” from Idaho code could expand protection for anyone accused of misusing pesticides.
Currently, the Idaho State Department of Agriculture’s enforcement authority allows the agency to discipline crop-duster pilots who spray pesticides in a faulty or “imperfect” way, even though they didn’t necessarily meet the higher standard of being “negligent.”
“The situation could arise where members of the public either ignore or are otherwise unaware of posted pesticide spray notices,” DeVries wrote. “Members of the public (i.e., joggers, farmworkers, children) may be present in a spray area. Applicators may still choose to proceed with a spray operation even with people present near the spray area. This action may not necessarily be negligent, but it may fit into the realm of fault or careless if the application results in human exposure.”
That’s exactly what state agricultural investigators decided in the summer of 2019, after farmworkers reported pesticide exposure from a crop-dusting plane spraying a nearby field in Parma. Investigators did not find evidence that the pilot’s conduct violated federal law, but sent him a regulatory letter saying his decision to spray with workers in a nearby field was conducted in a “faulty, careless or negligent manner.”
The letter came with no associated fines, license suspensions or other penalties.
In a statement emailed to the Statesman after the Monday hearing, spokeswoman Marielena Vega said the Idaho Organization of Resource Councils was concerned the bill’s changes would “unreasonably limit” the state’s authority to respond to incidents like the one in May.
“By eliminating ‘faulty’ and ‘careless’ this legislation makes it more difficult to prove an individual or company misused pesticides,” Vega wrote. “Striking these from the statute would expose workers and the public to greater harm because there are greater legal hurdles to demonstrate negligence.”
DeVries also noted how the legislation, combined with the House ag committee’s recent culling of several sections of administrative rules for pesticide use, would further restrict or remove the Department of Agriculture’s enforcement authority.
In most cases, the state agency is simply enforcing federal laws contained in the EPA’s Worker Protection Standard or the label for the pesticide. Narrowing Idaho agency enforcement could mean that concerned residents — farmworkers or residents of neighboring subdivisions — would have to appeal to federal rather than local authorities.
“Further, removing low-flying prohibitions would require Idahoans to take complaints regarding aerial applicators to the federal government,” Devries wrote.
Idaho crop-duster pilots, companies allege agency overstep
Although two pages’ worth of people signed up to testify, lawmakers weary from a long floor fight over a medical debt bill asked opponents and proponents of the bill to choose a few representatives to speak.
Oppenheimer was the only person to testify against the bill. He cautioned the committee to consider whether the law was really being inappropriately enforced, noting that the Idaho Attorney General’s Office found the state had issued only one violation notice under one of the sections the Idaho Agricultural Aviation Association wanted lawmakers to remove.
“There’s just some basic factual information that needs to be brought forward before this committee,” Oppenheimer said.
Officials from the Idaho State Department of Agriculture were not present during the hearing. In a bill analysis provided to committee members, the agency said it has primary authority to enforce laws governing pesticides through a cooperating agreement with the EPA. State agriculture officials have taken 17 enforcement actions — warning letters, regulatory letters, violations notices or consent agreements — against pesticide applicators in the past five years, according to the analysis. Not all resulted in fines or license suspensions.
“The ISDA has the responsibility to ensure that the use of pesticides will not cause unreasonable adverse effect to human health or the environment,” the analysis said.
Although only a few members of the association spoke, a group of about 15 men and women related to the crop-duster industry supported the bill at the hearing.
Mostly, the men claimed that state agriculture investigators had too much leeway to assess fines and violations, while accused crop-duster pilots had little recourse to appeal.
Randy Quigley, a former investigator for the department who is now affiliated with the Pacific Northwest Agricultural Aviation Association, said he saw firsthand how difficult and opaque the disciplinary process was for pilots.
Even if the ag department suspended a pilot’s license in lieu of a fine, said Burley pilot John Cooper, just a week’s suspension could be costly. He and Clayton Seamons, of Kimberly, said the stress of adhering to complicated regulations could distract pilots and endanger their lives while flying.
“It’s a good recipe to get dead,” Cooper said.
Lawmakers seemed eager to assist the crop-duster association members.
“We should support those who are directly involved in the industry, those that will have the most impact on,” said Rep. Christy Zito, R-Hammett, referring to the crop-duster pilots. “Other lobbyists or whomever could have been here. Obviously, they’re not.”
This story has been updated to attribute the Idaho Organization of Resource Council quote to spokeswoman Marielena Vega and to add information from the Idaho State Department of Agriculture.
This story was originally published February 25, 2020 at 6:00 AM.
