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fredb
02-10-2009, 10:05 PM
I recieved a complaint yesterday by the state for a neighbor of a customer we have after they smelled the spray form an application i made last June.The state tested the surface of the lawn on the property line and found 2-4d in the amount of 4 parts per million .They determined that it was not from any over spray or from being applied wrong but it was from the pesticide fumes or vapor that can not be controlled by the applicator at all and i was told there was nothing we can do to avoid this From happening.We used a 3 way herbicide with a amime formulation.It was applied in June with 5mph wind and 78 degrees.The law states in Wi that it is illegal to have drift if it causes harm or can conceivable cause harm.The state said that they consider any amount can conceivable cause harm and i am know facing a 753 dollar fine. I feel this is very unfair The product was applied correctly on a great day to spray I did not spray over the property line at all Also after asking how to avoid this in future i was told there was nothing we could do but not spray this customer any more because there would always be fumes or a smell.I would appeciate any advise Should i fight this or what actions i can take or where i coudl find any help with this

mngrassguy
02-10-2009, 10:24 PM
Welcome to Lawnsite. What a drag dude. I don't think there is anything you can do now. I would stay away from that customer from now on. Unless Wi has any type of arbitrator for these thing, I would just pay the fine. I can't imagine how anybody could prove or disprove the neighbor didn't spray something themselves, then make the call.

I hope this doesn't give some "crazies" out there any ideas.

fredb
02-10-2009, 10:57 PM
Thought about that The complaintant was a DNR warden Thats how he knew who to call I am just suprised how long it took the state to contact me over 7 months and i cant believe they consider any amount can cause conceivalbe harm The state rep from the dept of ag said the only way to avoid this is to not spay any lawns were we think someone might complain Also the said any time you spray there are going to be fumes or vapors so every application can be a fine if someone complains it just part of the busniess Also if we just pay the fine and plead no contest and we would get another complaint it will be 1000 dollars Also in our county all offences are printed in the local paper which is bad for busniess

IMAGE
02-10-2009, 11:00 PM
I think I would ask for an appeal also. There should be some kind of arbitrator for this. I would go armed with the facts. Also mention it's possible that it was spray from another applicator in the neighborhood possibly the day before, or possibly from the homeowner them self. Make them prove it was your 2-4-d.

myyaz33
02-10-2009, 11:19 PM
I think I would ask for an appeal also. There should be some kind of arbitrator for this. I would go armed with the facts. Also mention it's possible that it was spray from another applicator in the neighborhood possibly the day before, or possibly from the homeowner them self. Make them prove it was your 2-4-d.

I would ask for an appeal as well. At least see if there are any other ways to deal with it. Sounds like bunk to me..

The problem with making them prove it was yours is they LIKELY already know it was. They probably already have a sample from the neighbors lawn and the lawn you treated that match in chemical make-up. So this could seal your fate if it is all you have to stand on.

fredb
02-10-2009, 11:54 PM
I have a copy of the tests One from the yard i sprayed and one for just the other side of the property line They tested for 2-4d dicamba and mccp levels My question is this the law states drift is illegal if it can conveible cause harm How can they say that any amount at all will cause harm and how can they say it was applied correctly but i am still at fault Also how can they say that any time a herbicide is applied you can be fined for drift because you can not do anything about the smell or fumes If other people who dont believe in using pesticides learn about this every one in our state can be fined at any time how apply them

ted putnam
02-11-2009, 12:11 AM
Thought about that The complaintant was a DNR warden Thats how he knew who to call I am just suprised how long it took the state to contact me over 7 months and i cant believe they consider any amount can cause conceivalbe harm The state rep from the dept of ag said the only way to avoid this is to not spay any lawns were we think someone might complain Also the said any time you spray there are going to be fumes or vapors so every application can be a fine if someone complains it just part of the busniess Also if we just pay the fine and plead no contest and we would get another complaint it will be 1000 dollars Also in our county all offences are printed in the local paper which is bad for busniess

You sure you didn't get in a face off with this guy at the property line and have a screaming match? Surely he's not just got it out for all Lawn Care guys. 4ppm is really "splitting hairs".:confused:

fredb
02-11-2009, 12:18 AM
Never saw or even met the guy or had any words with him at all According to the complaint he filled with the state he could smell the herbicide and thought it would harm his dog so he contacted the state

mngrassguy
02-11-2009, 12:29 AM
It sounds like "chemical trespass" rearing it's ugly head.

http://www.americanchronicle.com/articles/view/53819

Tree huggers trying to put an end to all of us.

FdLLawnMan
02-11-2009, 12:32 AM
I also do business in Wisconsin and have never heard of this. I cannot believe it took this long for them to contact you. How can you possible defend yourself against these tactics. Call DATCP, Department of Trade and Consumer Protection. Usually the state is pretty good to work with. It sounds lie the Warden from the DNR was putting pressure on them to do something.

ted putnam
02-11-2009, 12:45 AM
It sounds like "chemical trespass" rearing it's ugly head.

http://www.americanchronicle.com/articles/view/53819

Tree huggers trying to put an end to all of us.

WOW! I wonder what the neighbors might get for firing up their Charcoal grill or letting their dryer vent spew noxious fumes from fabric softeners. Like our society isn't overwhelmed with unnecessary litigation. Not to mention just bringing all the whackos out of the woodwork.

mngrassguy
02-11-2009, 01:15 AM
Or smoking...

fredb
02-11-2009, 08:55 AM
I will try calling them today thanks

treegal1
02-11-2009, 09:26 AM
this is priceless, and dont get me wrong fred, that sucks!!! just another part of the GREENING of this country.....

4PPM???? WTF there has to be more heavy metals in his soil than that.........go fight them on this one, hope you win!!!!

treegal1
02-11-2009, 09:27 AM
Or smoking...or cars!!!!

RigglePLC
02-11-2009, 10:11 AM
Quoting from Allen James, of Rise,
"The issue of bio-monitoring continues to loom. Bio-monitoring is the measurement of environmental chemicals in the human body. Industry supporters must continue to insist that this measurement be conducted through scientifically-valid reporting. James also anticipates an increase in claims of "chemical trespass" against pesticides by industry opponents. Increased allegations by activists that any detection of pesticides in human blood indicates harm to humans will be the theme of this movement. "The fact that the minor detection of pesticides in the human body does not indicate any harm is unimportant to activists," James commented, "so we expect outcries by activists if bio-monitoring indicates any detection of pesticides in human blood. Bio-monitoring will serve as a rallying point for individuals that claim chemical sensitivity, and we have already begun to see some increased activity." Industry officials believe that individuals who claim chemical sensitivity will use bio-monitoring to further justify their feelings that chemical trespass is causing their illness.


According to James, all of these new claims tie into the continued misuse of the so-called Precautionary Principle belief. Activists want the Precautionary Principle to be defined as any risk associated with any pesticide results in either no pesticide registration or if the product is in commerce, the removal of that product from the market. Risk of any kind is not acceptable to those who oppose the pesticide industry. "
At http://grounds-mag.com/news/rise_outlook_020105/

Try to fight it. They did not give you an opportunity to collect your own samples, and do your own analyses. Suppose that 4 ppm was at 8 ppm on the opposite border of the lawn. Remember that the activists claim that lawn chemicals are found within houses of 75 percent of all houses in the US. Can he prove that there is no 2,4-D in his house. Or that his lawn was never treated with 2,4-D in the past? Activists insist that a 2 mile boundry should be allowed for all chemical sprays, 3 miles for aerial application. So how do they know the chemical came from you. Thousands of lawns within 2 miles have been treated. Probably some aerial application, too. And how do they know which year the chemical appeared on the neighbor property? The complaint is about odor. The chemical test should have tested the air--not the grass. The amount on the grass has no relevance. I hope others can offer some hints and experience.

phasthound
02-11-2009, 10:13 AM
Or smoking...

One of my favorite moments while spraying trees with a pesticide, the neighbor walks onto the property and into the drift. He doesn't miss a beat, walks up to me and says he was just coming over to ask me if that stuff............(pause, suck on cigarette)..........gonna hurt me?
:hammerhead:

nik
02-11-2009, 11:02 AM
4ppm is really "splitting hairs" No, not really. nearly all states have a zero tolerance on drift from pesticide applications. Now when was the sample taken?? Was it around June when the application occurred or more recently? If it was taken back then, that is one thing. If it was taken more recently then I would call major BS on it. Assuming you were applying at normal (legal) rates the product would have degraded in a couple of months.

Volatiles form 2,4-D are a tricky thing. Amines are the safer bet of course but they are not infallible. 78 degrees is a decent application temp.

Some questions for you:


What was the temp over the next several days?

You can apply ,4-D or any pf the phenoxy products on a "good" day but if the temp spike over the next couple you will get volatiles. I put the hurt on some of my own garden veggies from an appl pf 2,4-D to my lawn. Sprayed it when it was in the low 70s and 3 days later it was near a hundred. That was enough to move the volatiles.

In this yard are there hedges or brush surrounding the lawn which would limit the movement of air?

Lack of air movement and direct sunlight to those spot sill create a micro-climate that can be much warmer than the air around the rest of the property. That can lead to volatility.

Is the paint on the side of the house near the light colored or dark?
They have a concrete, gravel, or asphalt driveway and how close to the lawn was it? In either case the adjoining surfaces soak up heat and create another micro-climate. 78 degree air can be much hotter at the ground near asphalt and concrete. Anything sprayed near it can easily volatilize.

4ppm is drift, not volatilization. You can get positive hits in sampes form volatility at 1 ppm or less. Odd that they didn't come put and just say that it was drift.

Is the property line marked by a fence, hedge, or do the lawns run together?

What did YOU do to prevent the off-target movement from your application?

Do you use a drift ******ant? What nozzle size and pressure are you using? Do you monitor the current and following days weather?
How do you apply when getting near property lines? Do you survey the the whole yard and plan out the application before starting?

These are things to bring up in a hearing. You can use them to show that you are a conscientious applicator who is aware of his surrounding and is a good steward of the pesticides you are using. That may not get you off free, but to could reduce your fine some.

Some questions to bring up with the state of you go to a hearing:

Did the state guy sample from the neighboring yard on the line or on your clients? Did he know exactly where the line was?

Did the neighbor sign an affidavit that he never sprayed or had any 2,4-D products applied to his property or even have any in his house?

If you want to spend the money, demand a split sample from what the state took from the yard and have it run by your own lab. They ill have more of the sample available and if they balk at that, hit em on that point in the hearing. It's part of the discovery process.

How did the state guy sample the property?
Was he using clean equipment? Clean, fresh, never before used gloves? What cases did he work on before he went there?
Did he do any sampling for 2,4-D on a prior case?
How can he prove that his sampling equipment was clean prior sampling the neighbor's yard?
Did he only sample from the property line or did he sample further into the yard? If so what here those results?
As mentioned, did the state guy inspect other properties nearby to look for the source of the damage? 2,-D volatiles can go along ways.
What was damaged buy the 2,4-D. Lots of perennials can get whacked by the volatiles. Did the state guy even document any damage to other plants? Are there photos form the case. Ask for a copy of the investigation?

It will cost you some $$ to fight it. It may be worth it if you really feel you didn't do anything wrong. In most states the fines go up if you keep having "incidents". Why pay now for something that you didn't do wrong only to get soaked more than you should if you do have an issue.

Make the state work to prove it's case. If they have done everything they are supposed to and you did violate the law, then you did. Learn from it and move on. If not, you are entitled to due process. And frankly, since most states are hurting for money, they may drop certain administrative cases that will cost them more than they are worth, especially if you push them on it.

Good luck with all of it.

garydale
02-11-2009, 11:58 AM
[QUOTE=Try to fight it. They did not give you an opportunity to collect your own samples, and do your own analyses. Suppose that 4 ppm was at 8 ppm on the opposite border of the lawn. Remember that the activists claim that lawn chemicals are found within houses of 75 percent of all houses in the US. Can he prove that there is no 2,4-D in his house. Or that his lawn was never treated with 2,4-D in the past? Activists insist that a 2 mile boundry should be allowed for all chemical sprays, 3 miles for aerial application. So how do they know the chemical came from you. Thousands of lawns within 2 miles have been treated. Probably some aerial application, too. And how do they know which year the chemical appeared on the neighbor property? The complaint is about odor. The chemical test should have tested the air--not the grass. The amount on the grass has no relevance. I hope others can offer some hints and experience.[/QUOTE]

Definetly dispute the claim and sitation on the time lapse if nothing else.

Runner
02-11-2009, 12:42 PM
3 way does this. The strong odor is so distinctive and makes EVERYone know that an ap has been made...especially those paranoid people. I have been using Eliminate LO lately, but let me let you in on a little secret. If you want to actually get compliments on how GOOD a lawn smells,...there is a product that we use. It will literally cover the smell of 3 way completely, and leave the whole lawn smelling minty fresh. We get compliments all the time from both customers AND the neighbors about how our spray smells. The brand name of the stuff I have is called "Odorscent". It is known as a "chemical masking agent". The active ingredient is 100% methyl salicylate - which is wintergreen oil. It is specifically designed for this use (disguises undesirable odors caused by certain crop protection chemicals). The directions call for (now get this......) 1 ounce of this stuff for each gallon used in the mix. So, for example,you would mix 8 ounces to a 200 gal. mix that contains 8 gallons of pesticide. For a Permagreen? 8 ounces of 3 way, would need 1/16 of an ounce for an 8 gal. tank. 1 ounce = 6 teaspoons, so you can see how one teaspoon per tank would be heavy for this application. A couple of drops is all it takes.
Here's the label. http://www.customagformulators.com/p.../odorscent.pdf

Think Green
02-11-2009, 12:53 PM
I am living proof of being caught in the middle of a state organized liability issue. You can appeal anything, but the complaint was made by an individual. The ramifications of the case will linger around, especially if it makes the newspaper. It will not stop here as it will float over to the BBBureau if unattended and the homeowner does not get justice. Sometimes we have to pay the bill and bite our own bullets.
We are Agriculture here, and during the months of April through June, crop dusters are flying spraying (Facet) (Glyphosate) and several other cotton and rice pesticides. The town is furious with all of the toxins, but who do you fight when the infrastructure is based on our agriculture. The little man is the one who gets it up the tail pipe on these issues. You can have all the facts in a folder, signed, sealed in blood from a Senator, and still will not hold water with the E.P.A.
I wish you all the luck in the world!!

RigglePLC
02-11-2009, 07:11 PM
Well maybe you can take advantage of that basic human element "greed". Talk nice to the guy (or have your lawyer do this), threaten to sue him for something or other--and agree to have his dog checked out by the best veteranarian in the state and pay for blood tests and urinaylsis. Explain that $750 would go to the government, and you would rather put some of that in his pocket. Point out that the vapor drift could have come from anywhere, within miles. Point out that the government has conducted thousands of tests on dogs and other animals, and that the amount in the air is probably a thousand times less than the amount that would cause any effects whatever on the dog. Contact the manufacturer of the product for help, Gordons would probably be more helpful than Lesco. Trimec was tested on dogs 20 years ago by Bob Partyka of Chemlawn. They squirted the lawn care products from the tank directly into the dog' stomachs--no harm resulted. You breathe about a thousand times more than the dog every day you work. And...offer to switch to a low odor--low risk product when you work within 10 feet of his lawn or call ahead. Switch to Eliminate, or Eliminate low odor, or Quicksilver and take Runner's advice--use the masking agent. Spray when it is cold, April and October. Also threaten to report him for the same reason if he ever sprays even a single weed on his lawn. Or uses Roundup in drive cracks or kills a wasp. If you can smell it--or think you can...

Think Green
02-11-2009, 07:44 PM
FredB,
Do tell us that you have consulted an attorney? Did you contact your state licensing bureau on the complaint.? IF so, what did your attorney tell you in regards to this problem. Fill us in, because each state and their incidents are completely deliberated by law and ordinances.

dwc
02-11-2009, 08:10 PM
I am with Image on this one. How do they know it was your application?
I had the state called on me one time by a neighbor who said I hurt their tree. This neighbor was to the north of the lawn I treated. After looking into weather conditions that day, the wind was out of the north at 8mph. No way my spray hurt his tree! Finally after me and the state inspector beat this guy over the head a while he admitted to spraying 2,4d around the tree. The inspector dropped the complaint on the spot.

Have you checked to see what direction the wind was from that day? Also, where are they coming up with the 4ppm number? Did the guy put out weed and feed a few days before? How many other applicators made applications in the area within a week of that day? Does he have his lawn treated by someone? Just a few things to ask.

Hoots
02-11-2009, 09:49 PM
So let me get this straight. The guy smelled the odor and thinks he is contaminated.

How often does the "affected" homeowner fill up with gasoline? Does he not breathe in the vapors every now and then (maybe too much). Or just breathing gasoline vapors means he is covered in the stuff. The way this sounds like it went down, this guy could call the cops and say you ran a red light with no photo or physical proof and the cop issue a ticket. What a crock.

I don't see how the state can test the soil, find what sounds to be acceptable levels of chemical, applied on a legal temperature and windspeed and still issue a ticket. Sounds like you may have a case to defend.

I like the option that Runner has provided and I will look into the masking solution. There is another product that I have used in the past called Hawkeye that has the minty smell. It is a surfactant as well. I don't remember the rate but it has been a few years since I last used it.

tlg
02-11-2009, 10:27 PM
If this is really the facts in this case then were all in trouble. Some people may have a strong sense while some have less intense ability to smell. Which means if the guy down the street thinks he smells something like weed killer were going to get a lot of complaints. 4ppm indicates the chem was found that's all. Not who it belonged to or how it got there. Also, only one sample was taken buy a government entity. The question here would be was proper protocol or procedure taken when the sample was acquired. You might also ask why a sample from an independent body was not taken once a positive sample was found. A good lawyer would probably destroy any case the state thinks they have. In the end paying the fine will be less costly and close the case. Put it to rest and move on.

Here's another question? There's a dairy farm within 2 miles of my home. A good westerly wind and you can smell the manure. Just because I smell it does it mean the manure is getting on me?

RigglePLC
02-12-2009, 10:34 AM
Be sure to discuss this with your insurance agent. Insurance probably will not cover this sort of thing, but give him a "heads up". And he can probably put you in touch with a lawyer with experience related to this. Talk to the head of your Wisconsin Turfgrass association or similar organization also. Talk to the farmer's groups also, they have a lot of experience--and the farmers have major political clout in the cheese state legislature. And call your state senator or rep--they can easily intimidate state Department of Agriculture employees. Be sure to threaten to move your major business out of state putting every single one of your employees out of work.

fredb
02-12-2009, 03:19 PM
We have contacted a lawyer but havent spoken to him yet.Did ask the state what we did wrong and how we can avoid this in the future. We were told that we applied it correctly and the fumes can not be avoided. He suggested not to spay that customer any more to avoid another complaint.The wind was 5mph out of the south the ccomplaintant yard was to the west Also asked the state to tell us what amounts would convievibly cause harm We were told any amount that can be detected they consider would cause harm to something.The test was a surface test off of broadleaf weeds found in the complaintants yard in one spot we were also told that this happens on every job and its just an inhereint risk we have to deal with

nik
02-12-2009, 04:57 PM
were also told that this happens on every job and its just an inhereint risk we have to deal with

It is an inherent risk. All spraying carries a risk.

It really sounds like they are claiming volatility and at 4ppm I smell bovine waste product.

You don't get that high of an amount unless your running a really hot (and overlabel) mix. And if you didn't do anything wrong with the app. as they have said, getting a 4 ppm from volatiles just isn't right.

Does Wisconsin have written investigation or are they tickets? You need to get a copy of the case if it is available to see how they exactly came to their conclusion

fredb
02-12-2009, 05:23 PM
They said i would be getting a ticket Also asked how the sample was taken We were told right next to the property line and only taken from large broad leafs weeds because they have more surface area and would collect more of the vapors

ACA L&L
02-12-2009, 11:15 PM
The DNR fellas are the ones who put a stop to the perch fishing on Lake Michigan!! Yet they continue to go out and catch record amounts of perch and sell it to local restaurants and fish markets. They have boats just for trapping the fish!! They put my entire family outta bizness. I dont understand why it takes a couple thousand ponunds of fish caught weekly to determine if the fish are repopulating the region? One word greed. They also just built a huge facility in the harbor so they can process there catch and get it ready for sale. Sorry for the small interuption but it just shows you wgo you are dealing with. He should be thanking you for taking care of his lawn, not reporting you. haha

ArizPestWeed
02-13-2009, 10:22 AM
Perhaps a bit over the top , but , I would have soil tested for all chemicals to show the 24d is not alone .
In other words , bury the 24d in a sea of chemicals and say

"Look , you not only have 24d , you've 25 other chemicals too, so what's the big deal ?.
You property is a cesspool of toxic crap "

Just an idea
That's where I'd go with this

RigglePLC
02-13-2009, 10:42 AM
Agree with above. No way vapor drift could have got up to 4 ppm. And ask if the weed they collected the sample from was dying or affected by the chemical. If his weeds are not dying--there was not much chemical. Also point out that he may have been smelling the inert ingredients--the solvents used in the mixture--not pesticides--not considered harmful by the EPA. Low odor 2,4-D has almost no odor.

Grandview
02-13-2009, 10:47 AM
fredb, I would not pay the fine and fight it. I have gone through a few of these investigations. First, I find it hard to believe the state just contacted you about this case, when it was reported in June. I have always been notified in a day or two. What if you wanted to do your own test? You are given no chance to defend yourself in this case. Pulling a sample off one weed does not count. Samples should have taken in random spots along the property line. You were not even given a chance to witness the sampling. I would appeal the case. The fact you are notified now about a case in June is reason for dismissal in my book. PM me if you want to talk. The samples could have been fixed by the home owner. What concentration does normal application rates give you. If it is lower than their test results I would be suspicious.

fredb
02-13-2009, 12:42 PM
Normal rate in the lawn we spayed was 118ppm which is 26 times higher

mattfromNY
02-13-2009, 01:07 PM
So, the state has determined that the product you used is safe for the purpose in which you used it. (Must have approved it for its labeled purpose, for it to even be sold in WI).
Then, they fine you for using it in an approved manner?
What is this world coming to??

kgruen
02-13-2009, 03:11 PM
it seems to me that recently they were offering low odor herbicide.can't remember who but the crux of the issue is smell of product.try getting a complaint from the state over a person 1/2 mile away:dizzy:!!!

fredb
02-13-2009, 03:47 PM
product we used was from Lesco called 3-way Its there most popular herbicide

Perfect Image TLM
02-13-2009, 04:13 PM
Man that sucks bro. You absolutely have to fight it. Good Luck man!

humble1
02-15-2009, 08:24 PM
I recieved a complaint yesterday by the state for a neighbor of a customer we have after they smelled the spray form an application i made last June.The state tested the surface of the lawn on the property line and found 2-4d in the amount of 4 parts per million .They determined that it was not from any over spray or from being applied wrong but it was from the pesticide fumes or vapor that can not be controlled by the applicator at all and i was told there was nothing we can do to avoid this From happening.We used a 3 way herbicide with a amime formulation.It was applied in June with 5mph wind and 78 degrees.The law states in Wi that it is illegal to have drift if it causes harm or can conceivable cause harm.The state said that they consider any amount can conceivable cause harm and i am know facing a 753 dollar fine. I feel this is very unfair The product was applied correctly on a great day to spray I did not spray over the property line at all Also after asking how to avoid this in future i was told there was nothing we could do but not spray this customer any more because there would always be fumes or a smell.I would appeciate any advise Should i fight this or what actions i can take or where i coudl find any help with this

I would fight it and bring a copy of the complete MSDS sheet. I would ask where on the sheet oral, dermal, inhalation toxicity etc is. ThenAsk them where does it say any concentrations less than 5 ppm could cause any kind harm. When they cant ask them if this is their opinion. Then tell them that opinions are not scientific fact and the info you have is scientific fact, and that you want the case thrown out.