Ξ March 27th, 2011 | → 2 Comments | ∇ A Day at a Time, Herbicides, Interviews, WALLA WALLA, Wine & Politics, Wine News |
The dust may have settled around the civil case of Kevin Kohlman versus Roseburg Forest Products, but not the herbicides. Fate and transport issues remain. Indeed, in this interview with the expert witness in the case, Dr. Susan Kegley of the Pesticide Research Institute, we learn of a surprising new twist, one of potentially even greater import than that of herbicide drift as it has so far been discussed in my series: Surface and groundwater contamination.
Drift falling directly onto a vineyard, whether upon initial application or through secondary volatilization, is only one of the modes of errant herbicide transport. It may often happen that a herbicide finds its way into the primary irrigation sources used for a crop.
Though in the Kohlman’s case, we saw prima facie evidence of a helicopter spray application clearly done contrary to label recommendations – as shown in a photo included in part 2 of my interview with the gentleman – the jury came back with a reasonable doubt. How are we to explain their decision? Apart from claims that the defendant, Roseburg Forest Products, frustrated discovery and massaged evidence, of an apparent Voir Dire violation during jury selection, and the judge’s refusal to allow relevant information into evidence, Dr. Kegley mentions an additional possible source of doubt. Perhaps it was that too few water samples were taken from the Kohlman’s irrigation sources, for herbicide contamination was strongly indicated in their holding reservoir. The idea is that both drift and improper herbicide applications, on snow melt for example, were potential contamination pathways. It bears repeating that none of the herbicides found in the Legacy vineyard were used by the Kohlmans.
Here as well does Dr. Kegley provide a crash course on what might be called the culture of the EPA; she sketches the health concerns surrounding herbicides commonly used in forestry; and offers insight into the scientific spirit. With even ’sustainable’ farming is at risk, of the dire consequences of drift and water contamination on organics, including finished organic wine, she say with classic understatement, “It’s not good press, put it that way.” Of course, her work is far more multifaceted. I strongly encourage readers to visit her company’s website, the Pesticide Research Institute, to learn more.
Please read the newspaper report Dying on the Vine for critical background. For previous installments of this series, please see Herbicides.
Admin I am working on the matter of herbicide drift and I was hoping you might help. My research began when looking into a case out of Oregon, the Douglas County area, involving a winery, Legacy Vineyards.
Dr. Susan Kegley I was the expert witness on that case.
You know, it was the funniest thing. During my conversation with Mr. Tupper of the Pesticide Action Network (PAN) a short time ago and he mentioned your familiarity with drift issues and the herbicides in that case. It is a remarkable coincidence that you were in fact the expert witness!
Dr. SK (laughs) Well, it is one of the few that made it into the papers. A lot of times these cases are settled on the contingency that nobody say anything to the public.
Is that right? I spoke to Steve Renquist. He’s the OSU Extension agent, and he went into considerable depth. He mentioned nothing about such a contingency. As the expert witness, are you free to speak?
Dr. SK The case is over. As for speaking, I was never told not to. He lost. So there is no settlement.
Yes. In that case it came down to reasonable doubt about the source of the herbicides.
Dr. SK Yes. Herbicides are used for more than one thing. The question in that case was where did these things come from. There were other uses of herbicides, but they were all further away. And the wind wasn’t blowing in the right direction to get them into Kevin Kohlman’s vineyard.
And even if one assumes roadside spraying alone might have had some effect, it certainly wouldn’t have resulted in the death of so many 1000s of vines. One of Mr. Renquist’s points was that because of fairly recent introduction of the wine industry in that part of the world, near Roseburg, that it is going to take some time for negotiations between the timber industry and wineries and grape growers to come to terms with spray drift?
Dr. Susan Kegley That would be an accurate characterization. I think that one of the things that happened to Kevin was that he called his legislator and she said what was he doing trying to grow grapes in timber country anyway? So there are a lot of barriers that need to be broken down before this is given the same weight. If you think about it economically, grapes have the potential to – and are already – contributing pretty heavily to Oregon’s economy. The state would be wise to accommodate as many different economic activities as they can. The Oregon Department of Agriculture really doesn’t think that way now.
It took 4 years for this case to be litigated. Once again relying on my conversation with Mr. Renquist, he suggested that there were perpetual continuances sought by Roseburg Forest Products. Is that your observation as well?
Dr. Susan Kegley I wasn’t privy to the day to day legal details about why it took forever. (laughs) But that sounds correct. They kept asking for the case to be dismissed.
The idea was to wear down Mr. Kohlman. Maybe this guy will just go away.
Dr. SK Yes. But he wasn’t interested in giving up and going away.
When did you come into the case? And your responsibility was to perform scientific assays of plant tissue?
Dr. SK Perhaps it was in the summer of 2008. No, there were 2 main things: Providing testimony on whether pesticides and herbicides can move from one place to another, the fate and transport of a compound after you release it from the spray rig; and then the other was to talk about damage characteristic of those particular herbicides.
So it was principally Oust and Velpar. Is that correct?
Dr. SK Yes.
But there has also been talk of 2,4,D and Garlon. I’ve been told these are used in smaller applications, a rancher spraying a fence line, for example.
Dr. SK No. They use those a lot in forestry.
And they are often used in aerial spraying?
Dr. SK Yes.
I’ve read the product sheets for a number of these herbicides. And 2,4,D was specifically recommended for grasses…
Dr. SK It’s mostly used for broadleaf plants. You may have looked a label that is specific to roadside spraying. Several 2,4,D products are made for targeting different markets, including forestry applications.
Perhaps this is merely inflammatory, but my understanding is that the product is related to Agent Orange. Is that correct?
Dr. SK Yes and no. It’s got one fewer chlorine atom than Agent Orange does. Agent Orange is a mixture of 2,4,D and 2,4,5,T. Both of those products are contaminated with Dioxins and other really carcinogenic substances. In theory they’ve gotten most of the contaminants out of the production process, so it is not clear whether that is still an issue. The EPA usually spends some time talking about impurities, and I haven’t looked at that assessment lately, but they seem to have gotten it down to the point where the EPA is not concerned about it anymore.
Were you to estimate the percentage of these chemicals, Oust,Velpar, 2,4,D, and Garlon, used by the forest products industry, where would 2,4,D fit in?
Dr. SK It is one of the main ones. People are moving away from ester formulations of 2,4,D, which is very volatile and does really drift. But that was one of the products we found that was used in the Kohlman case. They are not out of circulation.
A lot was made of the elevation of the helicopters seen spraying herbicides on the clearcut above the Kohlman’s property. The article mentioned spraying being done at 90 feet when the recommended altitude is far lower. But then there is the question of secondary volatilization on subsequent days, and as a result of environmental events, rain and wind for example. Is there science on the secondary volatility of these compounds?
Dr. SK Yes, and that is mostly what the Drift Catcher program Karl [Tupper] and I together worked on over at PAN, volatilization drift. The 2,4,D ester formulation does do volatilization drift, and most of the other chemicals used in forestry; Garlon might be the next most volatile. Certainly Oust, sulfometuron-methyl, they’re not volatile at all. They are not going to volatilize after application. So if you’re finding Oust and sulfometuron-methyl it is almost certainly from spray drift.
Herbicide Toxicity and Transport
The subject is vast and very complicated. And bringing bad news to one’s readership is often met with a shrug. The wine community tends to be upbeat, and a bit on the conservative side. In any event, someone wouldn’t buy vineyard property in complete isolation from all local services. Neither would virtually any business. So it is more likely that there is patchwork of land ownership nearer towns and cities. So with respect to drift upon application and drift from secondary volatilization after application, many more people and farmers are potentially affected by timber industry herbicide use than simply Mr. Kohlman and his vineyard. Now one of the issues OSU Extension agent Mr. Renquist could not address are the health risks associated with these chemicals. Could you speak to that matter?
Dr. SK 2,4,D is on the list of possible carcinogens.
Is that because of Dioxin contamination?
Dr. SK Probably, but it’s not really clear. Very few of the tests have actually been done with very pure 2,4,D. And then the question becomes whether someone is using pure 2,4,D in the products. And that is not clear either. There is certainly still some Dioxin contamination. That’s the issue with 2,4,D. It is also an endocrine disrupter. There is a fair amount of evidence that shows that it interferes with reproduction in amphibians for sure, and potentially humans as well.
Garlon, at high enough doses, causes birth defects. And again, are you going to get enough from spray drift to have that effect? We’re not sure. It depends on the particular incident. All of these herbicides can make their way into groundwater. They are all potential groundwater contaminants. You run the risk of exposure through both air and water when living in the area, particularly if you’re on a well.
Oust and sulfometuron-methyl have relatively low toxicity to humans, but a super high toxicity to plants. So that anything that depends on plants for food – like grape growers and vineyard owners – (laughs) it’s particularly problematic. But it not so much of human health risk. Or even fish or aquatic organisms, or birds, anything like that, not the data I’ve looked at anyway. There are always more studies that can be done, but basically it comes out pretty clean on those studies.
And then Atrazine is also on the list of endocrine disrupting chemicals. Its been a big deal at EPA. People have been trying to get EPA to regulate it, but it’s billions of dollars a year for Syngenta, the company that makes it. EPA has trouble making decisions about chemicals like that.
Whose Science Is It Anyway?
There is also the question of synergistic effects. Everything is tested on a chemical by chemical basis, but in the chemical bath an industrial agricultural area can be, it seems somewhat futile to analyze each in isolation.
Dr. SK But we have no data on the testing. No one has tested them as mixtures even though they are often formulated as mixtures of active ingredients in the products. It is another failing of our regulatory system although I do not want them to spend the next 50 years doing the tests on the mixtures! I would like to see them move to something besides the more toxic herbicides and pesticides.
That raises another question about whose science is it? I mean, Monsanto is infamous for its ability to skew and bend research protocols to already preconceived ends, if I may put it that way. I’m trying to be diplomatic here. So how do results from your organization, the Pesticide Research Institute, confront the often proprietary research done in university labs, for example, by companies like Syngenta and Monsanto? In other words, how can science be done if the scientific protocols and results are not publicly known?
Dr. SK Well, EPA uses a certain set of data to register the pesticide/herbicide, to make the decision to allow it to be used. That’s public. Or at least EPA’s interpretation of it is public. We don’t get to look at the actual studies. EPA’s staff writes it up, and that is what’s made available. So we have that data. We’re really relying on the agency to do a good job of that. But that does not always happen, that’s for sure.
Where you have some help is with independent researches, mostly at universities, who are studying the effects of these chemicals as well. The problem is that for someone trying to get research money, funding for research on these things, it’s not a particularly sexy topic. So it is not well-funded. It’s like, ‘Yeah, you’re doing the same studies that a billion other people have done. You’re not learning anything new.’ And that is the goal of academic research. Tyrone Hayes, who is a professor here at UC Berkeley, has been doing research on Atrazine and its effects on amphibians. He’s finding feminization of male frogs so that they actually have ovaries and eggs. EPA is trying really hard to ignore his evidence. (laughs) EPA has said that it’s an effect that the frogs were feminized, but it’s not an adverse effect!
We certainly don’t have enough information on these chemicals; but we have more than we do on a lot of chemicals. And that’s helpful. We have enough to know that we shouldn’t be using some of them. From the angle of the grape growers, these really toxic and persistent herbicides and pesticides, like Oust and sulfometuron-methyl, because they just don’t go away for years, they really should be reserved for very, very select uses where you don’t really want anything growing anywhere! There are not too many of those situations. Certainly not steep hillsides with forests and soil!
It is not clear in the Kevin Kohlman case. Certainly drift played a part. But it is also possible that the ground water he was using for his vines may have been contaminated. There were not enough water samples taken to really confirm that.
Can it be said that EPA evaluations take into consideration ‘extra-scientific’ considerations? From the outcome of the Kohman trial, for example, it’s clear that it was very difficult for the jurors to overcome reasonable doubt. He didn’t seek a change of venue, perhaps because the Kohlman’s felt completely confident in the quality of their scientific evidence they had amassed. [See the interview with Mr. Kohlman, conducted after this, for his reasons in not seeking a change of venue. It had, among other reasons, to do with the requirements of a civil suit. -Admin].
Dr. SK Do you know what happened, though? The jury foreman who, once selected, and having sat through the whole trial, he died the night before, or very soon before the verdict was made. The person who was the alternate – and I’m telling you what I heard from the attorneys – had worked for the forest service in the past; but he had not revealed that during the Voir Dire, the jury selection process. He had apparently made some comment like ‘I’ve worked with herbicides all my life. There is nothing wrong with them.’ Had he said that during the Voir Dire process he would have been excluded from the jury. There were all kinds of things that didn’t work out quite right.
Yes. I read in Marie-Monique Robin’s The World According to Monsanto it often happens that chemical company executives, whether from Monsanto or Syngenta, others perhaps, bounce around from private to public service. It is not unusual for someone to go from an elevated position within Monsanto to the EPA, for example. That’s what I’m getting at. It seems that there is an extra element here that vitiates the science. So my question is how does one work to make science triumph as opposed to political expediency and convenience.
Dr. SK That’s a really good question. If I knew the answer to that… (laughs) But that is the key question. The hires that are made at EPA, even at the staff level, are vetted by industry, at least that’s what I hear from inside the agency. I have not confirmed that myself, but I know someone pretty high up in the agency who said that during the Bush years there was a lot of this, even among fairly low-level staff positions, this vetting by the industry. The thing is, political appointments can only take you so far. Your staff has to made up of good scientists. They have to believe in protecting public health. You can change the upper-level by political appointments but the staff, they’re government employees, so they’re impossible to change. If you get someone who isn’t a good scientist and who doesn’t care about public health protection, you will be out of luck for many years.
Ultimately you will be found out, whether through the Freedom of Information Act or peer review of your work, presumably…
Dr. SK It’s really hard to distinguish between crappy work and someone with a bias.
With respect to Oust and Velpar, one of them, perhaps both, that among the scientific experiments concerning drift involved applying them under ideal circumstances, in this case on a table top landscape, the plains of Texas, rather than the rugged, mountainous landscape of Roseburg Forest Products’ Oregon. There the temperature changes at elevation, as does the wind and fog, heat gradients, the presence of water, and so on. That would seem to suggest that instructions for the application of herbicides are short-sighted, to say the least. Experimental conditions differ significantly from the real world. So what are we to make of label instructions?
Dr. SK True. That’s exactly right, every bit of it. (laughs) EPA exercises its control over pesticide/herbicide risk through the label. And the label specifies certain application conditions. But there is no one checking. There is very little enforcement, put it that way. No one comes by with any frequency to check if your application is being done correctly; whether you have the proper nozzle size; whether you are applying when the winds are low enough or high enough to prevent drift. It’s a house of cards set up on a label which can’t be enforced. Or it isn’t being enforced. It doesn’t work.
Crop Sensitivity And Organic Woes
What is it about a grapevine that makes it particularly susceptible to these toxins, these herbicides?
Dr. SK There are several different mechanisms of action for these herbicides. Grapes grow really fast during their season. And many of the mechanisms of action of the herbicides are inhibiting some pathway for a vine’s growth. They are particularly sensitive. There are probably many other crops similarly sensitive, but since they are growing a lot of grapes in that area you’re seeing the effects in a vineyard first. In California there have been issues with prune and plum trees, orchard crops, with herbicide drift. They are still finding herbicides used on rice in damaged prune trees 10 miles away. So, grapes aren’t unique; but they are fast-growing and therefore are pretty susceptible.
My understanding is that the levels required to do significant damage are quite low, down to parts per billion. It mortality high at such levels, or is it damage from which a plant could recover?
Dr. SK There is damage from which the plant could recover but you might lose your yield for the year, lose your harvest altogether. I think what Kevin Kohlman was seeing was that established vines would suffer damage, but not die. But the new vines couldn’t handle it at all. They died.
What happens to one’s organic certification when herbicide drift is implicated in crop damage?
Dr. SK They can’t market their crop. Their certification doesn’t usually get revoked because it’s not their fault. Another case I did involved Larry Jacobs who owns Jacob’s Farm Del Cabo out of Pescadero, California. He was getting drifted on by brussel spout pesticide applications that were upwind of him. He would periodically test his crops just to be sure he’s not adding pesticide residues. I think he has to some of that for marketing. Once he detected residue from brussel sprout drift, he couldn’t market his crops for a couple of years.
Grapes are somewhat different. You don’t necessarily test the grapes directly. And from those grapes a wine is made. In your scientific opinion, can herbicide and pesticide residues end up in the finished wine?
Dr. SK Yes. I’ve seen some data on that. There are some that make it in. In fact, there were such residues in Kevin Kohlman’s wine. 2,4,D was found in his wine. That’s not good. So growers really do need to worry about that because, well, it’s not good press, put it that way. I’m not sure whether the FDA tests wine, whether I’ve seen the data there, but there have been several publications on different food crops, and wine was one of them. Yes, it’s an issue.
Are the tests expensive?
Dr. SK Yes. About $300 a sample.
There was a instance of this recently. I read of an enterprising couple of wine bloggers who took what is known in the trade as a ‘natural’ wine made in Washington State, the Walla Walla area, where winegrowers have had difficulties with orchardists and wheat growers, and they submitted it for testing. Now, let me first add that as far as I’ve been able to determine, winegrowers do not necessarily want to know if they have drift issues, even when an orchard or wheat field is very near their vineyard. So the wine bloggers did submit a sample of the wine but only, as far as I know, for the testing of volatile acidity, bioamines, levels of which would cause spoilage or would at the very least suggest poor winery hygiene and quality control. They did not look for pesticide or herbicide residues. If one were to do a test does it cost $300 per compound sought?
Dr. SK No. There is a lab that we use for our air monitoring work. They do a multi-residue scan for about 130 pesticides for about $350 a sample.
Are you an avid wine drinker?
Dr. SK I am, indeed!
And finally, would you tell me how you arrived at your profession?
Dr. SK I have a Ph.D in Organic Chemistry from the University of North Carolina, Chapel Hill. After graduating in 1982, I taught in academia for 14 years, and did research on organometallic chemistry; nobody knows what that is. (laughs) Then I became very interested in doing environmentally-related chemistry. I then reoriented my research program to start looking at fate and transport of chemicals in the environment. I moved to Berkeley in 1992 and started an environmental chemistry program there, a curriculum development program to get the students using state-of-the-art instrumentation and doing their own projects. They would go out in the field, take the samples, bring them to the lab and learn how to do the analyses. They would learn the whole process, along with data interpretation.”
One of our experiments was on strawberries. We went to the California Department of Food and Agriculture’s lab that does such analyses. After doing our work, it really changed their opinions about what they were eating. When you can see the chemicals on your food, it makes it very real.
In 1998 a job opened up at PAN, the Pesticide Action Network. I took it. And I have been doing pesticide research ever since.
Thank you very much for your time.
Dr. SK Good luck. It’s important for this information to get out to the public.