Firm guilty of illegal spraying
Written by Jane Stebbins, Pilot staff writer   
April 08, 2014 10:36 pm

A commercial aerial spray company falsified records, hampered the investigation and was ultimately found guilty of illegally spraying herbicides on property — and possibly residents — north of Gold Beach, according to a state agency report.

The results of a five-month investigation by the Oregon Department of Agriculture (ODA) will likely result in fines against Pacific Air Research, a White City-based firm owned by Steve Owen.

The investigation revealed that a helicopter owned by Pacific Air Research was hired by Crook Timberlands of Coos Bay to spray three tracts of land north of Gold Beach. At the same time, the private forester hired to oversee those operations learned that the owner of another tract on the other side of Cedar Valley, wanted to spray his property the same day using the same operator. 

 The forester then coordinated the two operations.

But homes, animals and people were also sprayed as the helicopter flew back and forth over the valley, the report reads, prompting complaints to doctors and state and federal agencies and resulting in the largest case involving commercial chemical spraying in the state of Oregon.

The federal government will now conduct “enforcement actions” — fines — regarding the spraying of residences, while state officials address the false records that misled the ODA regarding what was being sprayed and other violations.

 Fines at the federal level start at $750 a count. If it is determined that gross negligence was involved in the spraying operations, civil fines could be $10,000 per count; if no negligence is found, that could drop to $1,000 a count for the first offense and $2,000 for repeated offenses.

It might have been all fine, said Mike Odenthal, investigations coordinator with the ODA, had the pilot sprayed the three tracts owned by Crook Timberlands on the west side of the valley, then relocated his tanker vehicle and helicopter to the second property to the southeast and sprayed that land.

“He flew the forester to the (second) parcel, then flew back and loaded his helicopter,” Odenthal said. 

Based on the number of acres reported to have been sprayed and the mix-ratio of the pesticide used, the helicopter made four round trips between the two parcels — and over the homes in Cedar Valley.

“People said they felt like it (the helicopter) was leaking,” said Katie Coba, director of the ODA. “This was not a drift event. We don’t know how the product got on the property, but we know they flew over the residents numerous times.”

The products were supposed to include triclopyr and 2,4-D, common pesticides used in Round-Up and other products available in garden centers. At least three other chemicals were also found on foliage.

Immediately, some 40-plus residents started to fall ill — sore throats, dizziness, balance problems, nausea and difficulty seeing — and a horse lost more than 500 pounds, a dog half its body weight, and a colt has gone blind.

Doctors said they didn’t know what to do as they didn’t know what chemical reactions they were treating — and demands to determine what the product were unsuccessful.

Oregon law requires the property owner or land manager to name what pesticides or herbicides are to be sprayed in any given season, but the applicator of those chemicals — in this case, Pacific Air Research — does not have to divulge that information to anyone except the ODA.

And that’s when investigations got bogged down.

“This was an unusual investigation for our pesticide program,” Coba said. “It was complex;  the toughest investigation we’ve been involved in since my tenure at the department. It was very, very difficult to get information from the applicator. He was not cooperative, he gave us false information, there was conflicting and confusing information. It made it difficult to do a thorough investigation.”

“Usually, you call an applicator and say, ‘Hey! You got a bird up in this area? We’ve got a complaint,’ and they tell us,” Odenthal said. “That didn’t happen this time. It took almost a week before we got to talk to the aerial applicator, and his office — his wife — wouldn’t give us any information. Most of the time, it’s a quick phone call and we get our information.”

He said the state agencies have historically had a satisfactory relationship with Pacific Air Research, an aerial spraying firm established in 2005.

“He (owner Steve Owen) has been … OK to work with,” Odenthal said. “I would not say he’s the most helpful guy. But for whatever reason, this time he didn’t want to help. And he wouldn’t say why.”

Owen declined to take phone calls from the Curry Coastal Pilot.

Rick Barnes, manager of Crook Timberlands, cannot be held liable for the operations of the spraying company, said Dale Mitchell, pesticide manager with the ODA, as he is merely responsible to inform the ODA of the chemicals the timber company intends to have sprayed.

The investigation didn’t get underway, however, for eight days — a situation that still rankles the affected residents.

“They should’ve been out here immediately when we reported the spray,” said Cedar Valley resident Kathryn Rickard, whose dog’s health is slowly fading. “My information says the first 72 hours is critical — they didn’t do their job. The minute they got the phone calls, they should’ve sent somebody out. Even FEMA does. They had enough phone calls, they should’ve sent someone.”

Their phone calls eventually resulted in the involvement of the state Pesticide Analytical Response Center — a state agency that coordinates investigations and reports to toxicologists at Oregon State University — the Environmental Protection Agency, the Centers for Disease Control, and Beyond Toxics, a nonprofit environment and health advocacy — further complicating the investigation.

Testing was limited to pesticide use, and those tests showed the presence of not only the chemicals approved to be sprayed, but various others, including sulfometuron methyl — deemed by federal regulations to be “slightly toxic” — and glyphosate, which has been shown to increase breast cancer rates even with exposures in the parts-per-trillion ratio, according to a recent study in the journal Ecotoxicology.

 Chemicals sprayed on the Kaufmann tract were found to be what had been approved for use there.

The tests showed how strong the chemicals were, but it is impossible to determine how that might affect humans and animals, as it was unknown how much of the chemical each person was exposed to, Coba said.

Treated areas were found to have up to 28,000 parts per billion (ppb) of 2,4-D and 46,000 ppb of triclopyr; residential areas were exposed to spray concentrations of 10 to 16 ppb — substantially less. And the investigation showed that 8 pints of glyphosate were used on one tract where only 7.5 pints was approved for use.

“Whether it’s significant or not, he went above the label rate,” Odenthal stated.

It is too soon to say if state law — including fines — will be changed after the punitive phase of the investigation, Coba said.

It is common for pesticide applicators to challenge the findings in court, Coba said. Knowing that, investigators were forced to take even more time in getting the correct information before divulging it to the public.

The helicopter itself was examined and found to be in satisfactory condition, Odenthal said. And the applicator will not be denied access to the skies in the immediate future.

“We have ruled out any other source,” he said. “It most likely came from the aircraft. How it got there (direct spray versus inadvertently spilled droplets) we don’t know.”

But, Odenthal said, “We have enough to show that this product came from that applicator.”

“Enforcement,” or punishment falls under administrative law, so the state agencies only have to have a preponderance of evidence, rather than evidence “beyond a reasonable doubt,” as is required in criminal law.

Citizens’ health

Officials at the ODA said they recognize the community’s concerns about possible exposure, the Pesticide Analytical Response Center will play a “key role” in recommending ways physicians can obtain information about chemicals.

“We don’t feel comfortable about the way we did that work,” Coba admitted, regarding the delay in getting information to affected residents and physicians. “At first, we thought it was just triclopyr. When we found out we were getting falsified records, we weren’t sure what happened, where. We had to make sure before we notified residents.

“This is an area of concern for us,” she added. “We have to learn from this. We’ve got to go back and review the case. In hindsight, no one was happy with the way information was shared.”

Media in a teleconference call Tuesday also expressed their dismay at the ODA’s refusal to release documents under the Freedom of Information Act, saying those documents were exempt from such disclosure. The Department of Justice later determined the ODA was wrong; Coda said, adding that such information will be divulged in the future.

Some of the residents contacted declined to comment Tuesday afternoon, saying they wanted to await the results of a meeting in Gold Beach before “making any decisions.” They declined to elaborate on that, either.

One decision Rickard faces, too, is the fate of her dog, who she says now looks like the bony “thestrals” in Harry Potter movies.

“He’s just not ready to give it up; the vet’s not even sure why,” Rickard said. “But when that tail goes down and he quits smiling, that’ll be the end.”