Dicamba Update: Nebraska Tallies Hefty Regulatory Cost

What’s it like to be in a pesticide regulator’s shoes today? In Nebraska, it’s all dicamba, all the time. Tim Creger, Pesticide/Fertilizer Program Manager with the Nebraska Department of Agriculture addressed the problem in his insightful presentation at the annual meeting of the Association of American Pesticide Control Officials earlier this month. CropLife’s conversation with Creger picked up where his talk left off.

Dicamba Update: Nebraska Tallies Hefty Regulatory Cost

“The resources we spend on this one single issue are taking away from lots of stuff that we should be doing.” — Tim Creger

CL: Where are you at now with your pesticide investigations?

The 2018 cases we are just wrapping up, and we are still working our way through a number of the late ones. I would say the vast majority are probably warning letters, because we are dealing with first-time offenders. As crop rotation goes, at least in our grain belt area, it’s 90% or more corn-soybeans. Quite a few of the people in 2017 that had problems, saw the reason and avoided it altogether, and planted exclusively dicamba-tolerant varieties and didn’t have any complaints in 2018.

CL: Last year, about half of Nebraska’s drift claims were investigated – were the others not investigated because people wanted only to report it?

Yes, they wanted to report it, but they didn’t want us necessarily poking our noses in their business. They wanted us to know they were still having problems. We were prepared to investigate as many as possibly we could. We triaged them by letting folks know they had options other than open door-closed door policy. They would call us, saying, ‘I’ve got dicamba problems,’ and we’d walk through the situation with them. Once we had an understanding of the scale of the problem, then we would give them their options: We can investigate this completely, and that means we’re coming to take names, and we’re going to be talking to every one of your neighbors plus maybe another set of them.

Then we’d start scaling back and ask if they want us to talk only to the applicator they thought caused the problem. This isn’t a complaint investigation as much as a determination of whether the nearby applicator used the product correctly on a specific field. A lot of these people felt they knew exactly where it came from.

Out of the 105 complaints we had, there were maybe 30 to 40 let us do that. Some didn’t want us involved at all but wanted to report it.

CL: Were monetary penalties assessed?

In 2017, we had one penalty and maybe a dozen or so warning letters. The one penalty we had wasn’t even related to drift. We had a gentlemen who refused to provide records of Restricted Use Pesticides that he was using, before dicamba was even classified as a RUP.

CL: Are there any unique issues Nebraska has faced in dealing with dicamba?

I don’t know how intensive organic agriculture is in many other states, but in our state, it has become quite a deal. There are a lot of export markets in our state because of our geographic location. A lot of producers grow special GM crops designed for certain export markets or for pharmaceutical use. We have a couple of seed companies that grow almost exclusively for the Japanese tofu market. They are not classifying it as organic, but it’s a non-GMO variety and it is really sensitive to everything. That group of companies and growers really got hit hard this last year. They almost grow this tofu soybean variety like an organic, where they make sure it’s isolated and doesn’t have surrounding crops that can have herbicide impact. They thought they were doing well until the middle to the end of summer and then all of a sudden, we had a number of fields looking bad.

CL: Is there a common thread in the drift cases you’ve seen?

I wish I could say that there was. We haven’t got the data spread out on an analysis sheet like some states try and put their finger on one or two things.

I take all the complaints; I’m the one that delegates them out to my inspectors; I look at all of their case reports. But to be able to say from a cursory or in-depth look at cases that there is a common thread, it’s just all over the map. Out of the 50 complaints we investigated, we took information and samples, we probably had fewer than five wind-speed violations on either side of that 3- to 10-mph wind speed range. We only found a couple of cases where people had incorrect nozzles. We didn’t see anybody that had violations on ground speed.

A lot of the stuff that people would call violations that caused problems, you can’t prove. You can’t prove a spray droplet size after the fact; you can’t prove humidity in the field after the fact. There is a lot of stuff that is on the label, and most of the states will tell you it’s virtually unenforceable, because you can’t prove any of it. That’s been true of pesticide regulations since the day they started. Being able to prove something to pursue an enforcement action is really, really hard if not impossible at times. And then you have state-to-state differences in how enforcement-minded the state agency is. Some states are very aggressive while other states are not.

CL: How much has regulating dicamba cost the state of Nebraska?

I provided a cost estimate – emphasis on ‘estimate’ – to EPA last summer when they were asking for that kind of information. Missouri and Nebraska were similar in our estimates. We started looking at work hours spent on dicamba – not just in field but in the lab, case review, administration, and staff support. I told EPA it probably took 60% to 70% percent of our work hours for nine months last year. We don’t have any way to increase our budget. We get static funding from EPA, and I don’t have any way to modify the amount of revenue we receive from any other source.

What happens is that the resources we spend on this one single issue are taking away from lots of stuff that we should be doing. That was one of the points that I made in my presentation at AAPCO. Folks that had lawncare complaints, folks that wanted us to look into right-of-way application – they got placed down the ladder. I’ve had discussions coming into this next year and I want to move away from that approach. I don’t think it’s fair to the public or folks that pay the bills, and to the legislative intent of the law. The intent of our law was to provide adequate services to all citizens of the state – not just to a handful of people to apply one chemical.

We’re still trying to come up with a different, and I’d like to call it better, approach to dicamba this coming year. One of the things we’ve been working on hard within AAPCO, is to get a guidance document to the states that helps provide some interpretative guidance on the 2019 and 2020 labels. Even though labels were rewritten with our input, they came out the other end with a continued concern for definitions. We’ve got situations where there’s language in the new labels that are clearly enforceable to the state and agencies. Yet EPA says, it’s not the intent. Do we enforce them or not? Traditional enforcement policy says that’s enforceable language.

CL: Can you point to a specific example?

One of the labels says, ‘If wind direction shifts such that the wind is blowing toward neighboring sensitive crops or residential areas, stop the application.’ The question to EPA was, what will the state or federal agency recognize as evidence that the applicators met this requirement? There’s nothing else on the label that says I have to document this, other than the application record start-and-stop time. When we really start to press EPA about statements like that, they say, ‘Well, that’s more of an advisory’ (laughs).

One label, in all caps, says, “DO NOT APPLY WHEN WIND IS BLOWING IN THE DIRECTION OF NEIGHBORING SENSITIVE CROPS OR RESIDENTIAL AREAS.’ Another label uses the term ‘adjacent.’ When we ask EPA, ‘How far away is neighboring? How far away is adjacent?’ They say, ‘It’s whatever the applicator feels it should be.’ Well, that’s not enforceable, because it’s not a distinct distance. There’s a lot of vague language in these labels that EPA feels is advisory; we think it is mandatory.

CL: With the flooding going on right now in Nebraska, what are you expecting this year?

I don’t know what our cropping year is going to be like with all the floods. It was just yesterday that we were starting to get commodity groups to get us estimates of what they think might happen to their livestock and crops for 2019.

Current estimates are very difficult to come by due to the uncertainty of what the weather will do over the next month, and a lot of growers are making last-minute decisions on which crop to plant, not just what variety to plant. That is a situation rarely encountered.

When we talked to the seed industry, they’re saying that dicamba-tolerant crops were roughly 40% to 50% of market share last year. They think that will be 75% in the next two years, and maybe as high as 90% when it’s all said and done. We didn’t see 50% market share in Roundup Ready crops for five to eight years after the rollout. This whole dicamba technology has been adopted much more rapidly. It’s not fair to say that the growers have embraced it. You’ll talk to a lot of growers that say they didn’t have a lot of options. It was the seed industry that decided to shift their entire seed lines and large portions of dicamba-tolerant beans these last two years. The ones that didn’t because they didn’t want to lose the other herbicide-resistant technologies they had, were forced to adopt it because they couldn’t compete.

There are facets to this jewel that no one ever predicted. People like to call and say they have predictive models on this stuff, but I don’t think any of them work this year on this chemical.

Dicamba Update: Nebraska Tallies Hefty Regulatory Cost

The Nebraska National Guard had the opportunity to provide some relief to a fifth-generation farm family whose farm was so devastated by the floods, that you can barely tell there was ever farm land there to begin with. Photo credit: Nebraska National Guard

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