! 1Docket# EPA-HQ-OPP-2009-0687

EPA Panel Presentation December 2009

Volatilization Farm Impact

Presenter: Larry Jacobs ! larry@jacobsfarm.com ! (650) 224-0805 Organization: Jacobs Farm / Del Cabo, Inc. ! PO 508, Pescadero, CA 94060

Overview

Jacobs Farm, founded in 1980 as an organic farm, was an early adapter and

pioneer of organic farming practices. Insect pests are controlled by encouraging

beneficial insects through habitat management, diversified cropping systems and

application of materials approved for organic farms under National Organic

Program. Fresh culinary herbs are produced on 240 acres at 6 locations (green

dots) on the California coast between Santa Cruz and San Francisco.

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October 2006 Whole Foods Market detected Chlorpyrifos and Diazinon.

Advisory Notice: Residue Finding Under DOCK Testing

Memo to: Nick Moless

From: Wilfred A. Sumner II, Technical Director 510-452-8019

Date: 10/13/06

Client: Whole Foods Market

Sample collection location: Whole Foods Market Midwest Distribution Center

Shipper / Label name: Jacobs Farm, Del Cabo

PO or Other Product ID#: 03276 / 26229

Arrival Date: 10/05/06

Residue Found / Amount: Diazinon / 0.031 ppm

Chlorpyrifos / 0.042 ppm Product Organic Baby Dill

Residue!Detected!Exceeds 5% of US EPA Tolerance This product has been found to be out of compliance with the requirements of the National Organic Program. As such, it may not be labeled or sold as organic. This notice does not constitute a recommendation to detain or destroy product. We recommend that the retailer forward this information to the appropriate distributor/shipper for further investigation.

Not Registered for Use, No Action Level has been Established* This product contains residues that are not registered, and therefore is in technical violation of US regulations and may not be sold in the US. Notify grower and distributor/shipper of this finding, so that subsequent corrective actions may be taken. Any product in retailer’s possession should be returned to the distributor/shipper. To ensure that future shipments comply with US regulations, SCS recommends that two successive shipments of product be tested by SCS, either at the distributor/shipper’s warehouse or at the grower’s facility, and found to be within compliance. *!Note: For products currently being sold in the state of California, SCS’s testing laboratory is required to report this

result to the California Department of Pesticide Regulation.

! 3We were sure there had been a mistake. If true, there could be significant

losses. It was far worst.

Our Response:

! Recalled dill.

! Stopped harvest.

! Sampled product from our packing facility for pesticides.

! Traced product to Block WB9 to Wilder State Park from PO & Product ID#.

! Sampled implicated field and surrounding blocks for pesticides.

! Tested crops from all farms.

! Reported incident to Santa Cruz County Agricultural Commissioner.

Initial Results:

! Packing facility product had no detectable residues.

! Samples taken from our other farms had no detectable pesticide residues.

! Confirmed residues in block WB9 and others at our farm 1 mile north of

Santa Cruz at Wilder State Park.

CROP BLOCK DATE SAMPLED TEST RESULT WHERE TESTED DILL WB9 25-Oct-06 CHLORPYRIFOS 0.039 Scientific Certification SystemsDILL WB9 25-Oct-06 DIAZINON 0.029 Scientific Certification SystemsDILL WB9 27-Oct-06 CHLORPYRIFOS 0.040 Primus Labs DILL WB9 27-Oct-06 DIAZINON 0.030 Primus Labs

SAGE WK25 30-Oct-06 CHLORPYRIFOS 0.011 Scientific Certification SystemsSAGE WK25 30-Oct-06 DIAZINON 0.021 Scientific Certification Systems

ROSEMARY WK18 30-Oct-06 CHLORPYRIFOS 0.027 Scientific Certification SystemsDILL Swanton7-3 30-Oct-06 CHLORPYRIFOS ND Scientific Certification SystemsDILL Swanton7-3 30-Oct-06 DIAZINON ND Scientific Certification SystemsDILL Swanton6-3 30-Oct-06 CHLORPYRIFOS ND Scientific Certification Systems

ROSEMARY WB21 7-Nov-06 CHLORPYRIFOS 0.017 Scientific Certification SystemsROSEMARY WK9-13 7-Nov-06 CHLORPYRIFOS 0.024 Scientific Certification Systems

! 4Detected Residue Locations October/November 2006

We were astonished to find widespread contamination on land in the middle of a

state park. A popular trail used by families, hikers and bicyclists surrounds the

farm is easily seen in the above image.

Large natural buffers:

! Pacific Ocean to south.

! Coastal hills and Santa Cruz Mountains to north.

! Wetlands and riparian habitat to east (500 feet minimum).

! Coastal shrub and riparian habitat to west (1000 feet minimum).

The closest conventional farm in the above image is to the west (left). From the

edge of our field (purple line) to the edge of neighbor’s brussel sprout field is

500 feet at the closest spot. From the edge of the brussel sprout field to sample

sites in Block is greater than 1,500 feet. One small field in top left is separated

closer to conventional production separated by railroad right of way and road.

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County map portrays separation between our farm (pink) and conventional

brussel sprout farms (yellow and blue).

! 6Jacobs Farm Wilder State Park, Conventional Fields and Santa Cruz

120 acres of rosemary, thyme, sage, dill and other herbs were ready for

Thanksgiving harvest at the time we discovered the extent of the contamination.

Losses exceeding $500,000 were reported to the County Agricultural

Commissioner.

Santa Cruz County Agricultural Commissioner Results

CROP BLOCK DATE SAMPLED TEST RESULT WHERE TESTED DILL WB9 30-Oct-06 CHLORPYRIFOS 0.030 Santa Cruz Ag Commissioner DILL! WB9! 30-Oct-06 DIAZINON 0.010 Santa Cruz Ag Commissioner DILL! WB9! 30-Oct-06 CHLORPYRIFOS 0.010 Santa Cruz Ag Commissioner DILL! WB9! 30-Oct-06 DIAZINON 0.020 Santa Cruz Ag Commissioner DILL WB9 30-Oct-06 CHLORPYRIFOS 0.010 Santa Cruz Ag Commissioner

BRUSSEL SC#5 30-Oct-06 CHLORPYRIFOS 0.300 Santa Cruz Ag Commissioner SPROUTS SC#5 30-Oct-06 DIAZINON 0.070 Santa Cruz Ag Commissioner BRUSSEL SC#6 30-Oct-06 CHLORPYRIFOS 0.700 Santa Cruz Ag Commissioner SPROUTS SC#6 30-Oct-06 DIAZINON ND Santa Cruz Ag Commissioner

! 7The Agricultural Commissioner’s investigation confirmed dill contamination in

Block9 at our farm at Wilder State Park. It showed higher residues on brussel

sprouts at conventional farms to east and west.

To our surprise the Agricultural Commissioner’s report concluded there was no

violation. It ordered us to STOP HARVEST. Our crop was illegal to market

because Chlorpyrifos and Diazinon are not registered on the crops we grow. For

the organic market residues exceeded tolerances defined by National Organic

Program (NOP). The agency mandated with pesticide regulation could do

nothing. Nobody was responsible.

The Agricultural Commissioners pesticide application records showed only one

farm service company did all applications of Chlorpyrifos and Diazinon within

several miles of our farm. We didn’t understand how the county agricultural

commissioner was not able to determine responsibility. It had to come from

somewhere and somebody.

The Commissioner’s office explained no gradient was found to indicate pesticide

drift as defined by law. They checked weather and pesticide application records

and concluded all applications were done in accordance with regulations. No

laws were violated.

By googling we learned:

! Chlorpyrifos and Diazinon volatilize.

! Depositions of volatilized pesticides do not leave gradients.

! Volatilized particles are picked up by fog, a common occurrence in our

area.

Two articles pertinent to our problem (See Appendix):

1. Aerial Movement and Deposition of Diazinon, Chlorpyrifos and Ethyl

Parathion, February 1993 by Stein & White (California Department of

Pesticide Regulation and California Department of Agriculture).

! 82. Pesticide Occurrence and Distribution in Fog Collected near Monterey,

California, 1991, by Schomburg, Glotfeity and Selber (USDA, ARS,

Environmental Chemistry Laboratory, Beltsville Agricultural Research

Center and Department of Environmental Toxicology University of

California Davis.

Post application volatilization is well documented by regulatory agencies. State

and federal regulations exempt volatilization from the definition of drift. It

contaminated our fields but legally is not drift.

We explained the problem to the pesticide applicator and asked them to stop the

contamination. We asked a judge to stop the continued applications. His initial

decision to temporarily stop pesticide applications was reversed when the County

Agricultural Commissioner’s report was submitted stating: NO VIOLATION. NO

DRIFT.

Detectable pesticide residues continued in December 2006. No tests were run in

January and February. We found no contamination in March 2007.

CROP BLOCK SAMPLED TEST RESULT WHERE TESTED ROSEMARY WB 20-21 5-Dec-06 CHLORPYRIFOS 0.010 Scientific Certification Systems ROSEMARY WK9-13 5-Dec-06 CHLORPYRIFOS 0.013 Scientific Certification Systems ROSEMARY WK15-18 5-Dec-06 CHLORPYRIFOS 0.025 Scientific Certification Systems ROSEMARY WK9-13 19-Dec-06 CHLORPYRIFOS 0.023 Scientific Certification Systems ROSEMARY WK20-21 29-Dec-06 CHLORPYRIFOS 0.011 Scientific Certification Systems ROSEMARY WK9-13 2-Mar-07 CHLORPYRIFOS ND Scientific Certification Systems ROSEMARY WK21 2-Mar-07 CHLORPYRIFOS ND Scientific Certification Systems

April 2007 our farm manager called at midnight. He smelled pesticides and could

see spray equipment at the farm to the east. He lives at the farm with his wife

and children. Samples taken a few days later were positive for Chlorpyrifos:

CROP BLOCK DATE SAMPLED TEST RESULT WHERE TESTED

ROSEMARY WK18 17-Apr-07 CHLORPYRIFOS 0.016 Scientific Certification Systems

ROSEMARY WK18 24-Apr-07 CHLORPYRIFOS 0.020 Scientific Certification Systems

! 9It became clear contamination of organophosphates on our crops was ongoing

and would not stop until applications stopped.

July 2007 Test Results

CROP BLOCK DATE SAMPLED TEST RESULT WHERE TESTED THYME WK6 27-Jul-07 DIMETHOATE 0.025 Scientific Certification Systems THYME WK6 27-Jul-07 OMETHOATE 0.031 Scientific Certification Systems SAGE WK1 27-Jul-07 CHLORPYRIFOS 0.028 Scientific Certification Systems SAGE! WK1 27-Jul-07 DIAZINON 0.014 Scientific Certification Systems SAGE! WK1 27-Jul-07 DIMETHOATE 0.029 Scientific Certification Systems SAGE! WK1 27-Jul-07 OMETHOATE 0.063 Scientific Certification Systems

ROSEMARY WK18 27-Jul-07 CHLORPYRIFOS 0.044 Scientific Certification Systems ROSEMARY WK18 27-Jul-07 DIAZINON 0.022 Scientific Certification Systems ROSEMARY WK18 27-Jul-07 DIMETHOATE 0.031 Scientific Certification Systems

In 2007 the pesticide applicator increased droplet size, lowered boom height and

added a sticker to the pesticide mix and tried Dimethoate.

Volatilization doesn’t care about droplet size, boom height and sticker

solutions.

! 10July 2007 Pesticide Applications

July 2007 Pesticide Residues

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We continued sampling and testing for pesticide residues in 2007:

CROP BLOCK DATE SAMPLED TEST RESULT WHERE TESTED THYME WK6 13-Aug-07 DIMETHOATE 0.070 ENVIRONMNETAL MICRO ANALYSIS THYME WK6 13-Aug-07 DIMETHOATE 0.070 ENVIRONMNETAL MICRO ANALYSIS SAGE WK1 15-Aug-07 DIAZINON 0.050 ENVIRONMNETAL MICRO ANALYSIS SAGE WK1 15-Aug-07 DIMETHOATE 0.080 ENVIRONMNETAL MICRO ANALYSIS

ROSEMARY WK18 15-Aug-07 DIMETHOATE 0.030 ENVIRONMNETAL MICRO ANALYSIS THYME WK18 15-Aug-07 DIMETHOATE 0.050 ENVIRONMNETAL MICRO ANALYSIS

DILL WB5 15-Aug-07 DIMETHOATE 0.060 ENVIRONMNETAL MICRO ANALYSIS SAGE WK24 15-Aug-07 DIMETHOATE 0.040 ENVIRONMNETAL MICRO ANALYSIS SAGE WK27 15-Aug-07 DIAZINON 0.080 ENVIRONMNETAL MICRO ANALYSIS SAGE WK27 15-Aug-07 DIMETHOATE 0.070 ENVIRONMNETAL MICRO ANALYSIS

CILANTRO WB7 7-Sep-07 CHLORPYRIFOS 0.031 Scientific Certification Systems CILANTRO WB7 7-Sep-07 DIAZINON 0.018 Scientific Certification Systems

THYME WK6 7-Sep-07 DIMETHOATE 0.035 Scientific Certification Systems THYME WK6 7-Sep-07 OMETHOATE 0.042 Scientific Certification Systems SAGE WK24 3-Oct-07 DIMETHOATE 0.015 Scientific Certification Systems

THYME WK23 3-Oct-07 DIMETHOATE 0.059 Scientific Certification Systems THYME WK23 3-Oct-07 OMETHOATE 0.088 Scientific Certification Systems THYME WK4 3-Oct-07 CHLORPYRIFOS 0.009 Scientific Certification Systems THYME WK4 3-Oct-07 DIMETHOATE 0.058 Scientific Certification Systems THYME WK4 3-Oct-07 OMETHOATE 0.062 Scientific Certification Systems

ROSEMARY WB18 3-Oct-07 CHLORPYRIFOS 0.012 Scientific Certification Systems ROSEMARY WB18 3-Oct-07 DIMETHOATE 0.037 Scientific Certification Systems ROSEMARY WB19 3-Oct-07 CHLORPYRIFOS 0.011 Scientific Certification Systems ROSEMARY WB19 3-Oct-07 DIMETHOATE 0.026 Scientific Certification Systems

THYME WK23 19-Oct-07 DIMETHOATE 0.043 Scientific Certification Systems ROSEMARY WB18-19 19-Oct-07 DIMETHOATE 0.023 Scientific Certification Systems ROSEMARY WB18-19 30-Oct-07 DIMETHOATE 0.017 Scientific Certification Systems

THYME WK23 30-Oct-07 DIMETHOATE 0.021 Scientific Certification Systems THYME WK23 30-Oct-07 OMETHOATE 0.033 Scientific Certification Systems

ROSEMARY WB18-19 13-Nov-07 CHLORPYRIFOS 0.013 Scientific Certification Systems ROSEMARY WB18-19 13-Nov-07 DIMETHOATE 0.016 Scientific Certification Systems

THYME WK23 14-Nov-07 DIMETHOATE 0.021 Scientific Certification Systems THYME WK23 14-Nov-07 OMETHOATE 0.020 Scientific Certification Systems

A second loss report and complaint was filled with the Santa Cruz County

Agricultural Commissioner. 2007 losses exceeded $1,000,000.

! 122007 Organophosphate Contamination

After more than 50 residue detections over 12 months, the Agricultural

Commissioner reported NO VIOLATION and:

Nobody is responsible?

Summary from Santa Cruz County Agricultural Commissioner is on following

page. The last sentence says it all:

“….there is no evidence to indicate there was a violation.”

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We can grow crops without pesticides that volatilize. Effective green strategies

are available. Some argue they are more expensive. That is not true especially

when we consider damage to nontarget crops, organic crops, impact to other

species and our health.

Post application pesticide volatilization is a well-documented form of nontarget

crop contamination. Low-level pesticide residues on crops not registered for

their use make them illegal to sell. Organic crops are illegal to sell under the

National Organic Food Act if residues exceed 5% of permitted tolerance.

Volatilization violates consumer’s desire to reduce their pesticide exposure and

confidence in the USDA Organic seal.

Organic farms can’t escape contamination from volatilization. Buffers can’t

prevent it because it moves miles. Changing spray practices can’t stop it.

Exempting it from the definition of drift doesn’t make it go away.

In September 2008 a jury awarded us damages of $1,000,0000 for trespass,

negligence and nuisance. The case has been appealed to the California

Appellant Court arguing that California pesticide regulations preempt all other

government agencies including the Superior Court from ruling on a pesticide

related issue.

We can no longer ignore volatilization as a cause of crop contamination

and subsequent losses.

! 15Appendix

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