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BOISE — A bill that would remove regulatory language and change the Idaho State Department of Agriculture penalty enforcement for aerial pesticide applicators was sent to the House floor Monday. 

Just ahead of the House Agriculture Affairs Committee hearing on House Bill 487, the committee received a letter from the Idaho Office of the Attorney General, weighing in on both the bill and an earlier committee decision to remove sections in Idaho Code to reduce crop duster restrictions.

The attorney general's office wrote the letter in response to questions from Rep. Sally Toone, D- Gooding, who expressed concerns with the legislation.

"The overarching objectives of House Bill 487 in combination with section removals from (Idaho Code) are to narrow the Idaho State Department of Agriculture's authority to regulate certain pesticide-related activities," Deputy Attorney General Katy DeVries wrote.

The bill, proposed by the Idaho Agricultural Aviation Association, would add a section to agriculture department rules addressing penalties for an aerial applicator who has violated statute. The new policy would ensure the restrictions and penalties would be decided through a negotiated rule-making process that must be reviewed every five years.

The bill adds penalty assessment guidelines and a matrix to define the level of violation, the impacts of the violation and whether it was made knowingly or unknowingly.

"We are not rolling back regulations, but complying with one rule," David Lehman, a lobbyist for the aviation association, told the Idaho Press.

Lehman was at Monday's hearing to answer questions and present the legislation to the committee.

In addition to adding the penalty matrix, the bill would remove some language the association deemed repetitive. It removes a section in "Prohibited Acts" that says "No person shall: apply ineffective or improper pesticides.”

During the bill's introduction to the committee earlier this month, Lehman said the Environmental Protection Agency places labels on pesticides and herbicides that “provide ample direction to the applicator for the appropriate and correct way to applicate.” He argued that language prohibiting applicators from using ineffective pesticides is unnecessary.

In the deputy attorney general's analysis, DeVries writes that the section around ineffective and improper pesticides "gives the Idaho State Department of Agriculture the authority to pursue civil penalties for those who apply illegal or counterfeit pesticides. Illegal pesticides are those that have not been evaluated by the Environmental Protection Agency to ensure the pesticide's use will not harm people or the environment." 

"To provide an example, (the section) provides the Department with an effective means of pursing applicators who apply an ineffective pesticide to kill pests at a consumer's home," DeVries writes. "The implication of removing this language would mean narrowing the Department's ability to pursue civil penalties against those who apply these types of products." 

The bill would also remove the words “faulty” and “careless” from a line item in the rules that says: “No person shall: apply pesticides in a faulty, careless or negligent manner.”

“Negligent is well defined in our legal system,” Lehman told the committee during the bill's introduction. “A faulty manner is hard to define.”

“I think removing faulty and careless strengthens the statute,” he said. “It provides a well-defined standard for this application.”

The attorney general's office disagrees. 

"There may be instances when an applicator adheres to all label requirements and complies with all other pesticide and chemigation laws," DeVries writes (chemigation refers to applying chemicals through the irrigation system).

"Even so," she continued, "there may be instances when the Department would rely on this section's 'faulty or careless' language to issue a violation. This situation could arise where members of the public either ignore or are otherwise unaware of posted pesticide spray notices. Members of the public may be present in the 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 faulty or careless if the application results in human exposure." 

PARMA INCIDENT

The attorney general office's example is similar to an incident in Parma last May that sent a dozen farmworkers to the hospital for suspected pesticide exposure. A crop duster was spraying nearby while the farmworkers were working in an adjacent field. The Department of Agriculture was unable to determine what specifically sickened the workers, but concluded some workers were likely exposed to the pesticide spray from the crop duster. 

The committee heard lengthy testimony from aerial applicators and Lehman, but did not hear comments from either the Idaho State Department of Agriculture, farmers or farmworkers. 

"The position and concerns of farmworkers and all of those with greater risk to exposure to pesticides have not been heard," Marielena Vega, spokesperson for Visión 2C, an organization under the Idaho Organization of Resource Councils that focuses on farmworker rights, said in an email. "There are many concerns related to pesticide exposure among farmworkers that we could be talking more about, instead of being concerned about (loosening) protections."

"We are concerned that the Aviation Association involved with last year’s pesticide exposure incident in Parma, seems to not be affected, acknowledge, or portray a sense of responsibility on the incident, " Vega said. "Instead, they are setting proposals on pesticide rule changes that affect ISDA’s enforcement of the law and heightens the burden of proof on the individuals being poisoned. It raises concerns of accessibility to testing and the accuracy of testing of those exposed, knowing that sometimes conclusions are never reached as we’ve seen before. What needs to be done is that past incidents of pesticide exposure need to be taken into consideration during these proposed changes to make sure that such incidents like the ones in Parma, do not happen again." 

There was no mention of the Parma incident in any of the committee's hearings about the bill. 

SENDING THE BILL TO THE HOUSE FLOOR

Jonathan Oppenheimer, external relations director for the Idaho Conservation League, presented the deputy attorney general's analysis briefly to the committee, but lawmakers did not have the letter in front of them and it is unclear if they read the letter before voting to send the bill to the House floor. The House will take up the bill Wednesday.

Toone, who requested the attorney general's response, had concerns about sending the bill to the floor.

"I need to understand what is going to be put into rule," she said. "I don't know where we are heading. I would like to see the bill analysis from the Department of Agriculture along with the Attorney General's opinion, to digest it. I just need to know some more facts, visit with you and have all of my ducks in a row."

She was the only legislator who expressed concern over having time to review the attorney general office's letter. Other legislators were interested in creating fewer regulations around the Department of Agriculture's ability to penalize and fine applicators who violate the rules.

Rep. Gary Marshall, R-Idaho Falls, called the Department of Agriculture's ability to enforce penalties on aerial applicators "the very essence of tyrannical government."

“I can hear James Madison very loudly in my mind," Marshall said, "This is the very essence of tyranny.”

'BETTER CONVERSATIONS' IN OTHER STATES

Christina Stucker-Gassi, healthy food and farms program coordinator for the Northwest Center for Alternatives to Pesticides in Eugene, Oregon, told the Idaho Press the lack of information and input from communities and farmworkers about the bill is a concern for the organization.

"Our general thought is that we are having much better conversations around pesticide legislation in other states than we are having here," Stucker-Gassi said. "In Oregon there is a farmworker and children protection act that is seeking to ban a pesticide that has been linked to neurological conditions. That bill is being promoted as a great way to protect human health and that is part of the conversation that is missing in Idaho."

A group of about 15 individuals from the Idaho Agricultural Aviation Association were at the hearing to speak in support of creating a penalty matrix for the Department of Agriculture.

A few members spoke in the hearing, telling stories of when they had been fined and penalized by the department, claiming the restrictions were so broad and needed to be narrowed and codified.

Rachel Spacek is the Latino Affairs and Canyon County reporter for the Idaho Press. You can reach her at rspacek@idahopress.com. Follow her on twitter @RachelSpacek.