Appendix E: Spray-drift investigation/enforcement

Developed by Karenza de Silva, Fiona Knox (Environment Waikato Environmental Planner) and Dave Watson (Environment Waikato Monitoring Officer). Pat Clark (Agrichemical Consultant) provided further technical advice, Dr Pat Holland (Science Manager, Food and Biological Chemistry Laboratory, Hort+ Research, Ruakura, Hamilton) contributed to the section on sample collection and analysis. Information has been used from the Ministry of Health’s Guidelines for Public Health Services. The Investigation and Surveillance of Agrichemical Spraydrift Incidents [1998] has been used in this appendix.

Purpose of the appendix

The purpose of this appendix is to provide a protocol for local authority staff who have the responsibility of investigating spray-drift incidents and complaints. The appendix provides guidance on:

responding to complaints received
the practical nature of investigation, including interviewing and collecting evidence in the field
relevant RMA responsibilities.

The investigation forms to be filled out by local authority staff when a complaint is received are attached, and include:

Form 1: to be completed when a monitoring officer receives a complaint
Form 2: to be completed if a field investigation of the complaint is warranted
Form 3: to be completed in the field when interviewing the applicator.

Form 4 is an example of an information sheet the local authority can provide to anyone who considers they or their property have been affected by agrichemical spray drift. The information sought is the information the local authority needs to initiate an investigation into a spray-drift incident.

Aim of a spray-drift investigation

The aim of spray -drift investigation is to establish the cause, and effect, of any incident. Agrichemical application is a complex science. Many factors are involved, none of which can be ignored in an investigation. Inattention to detail can lead to inaccurate and unfair conclusions being reached, affecting either the complainant or the agrichemical applicator. Where any organisation adopts an enforcement policy for spray drift, the response and investigation must be of the highest standard. There is no alternative.

If staff decide to investigate, the investigation must be carried out immediately.

The attached Forms 2 and 3 should be completed when investigating.

Further legal and technical information should be sought from specialists when investigating an incident. Guidance is provided in this appendix as to when specialist advice should be sought.

Response to spray-drift complaints

Significant spray-drift incidents should be identified and attended to immediately. Evidence is more difficult to get after the event. The initial decision as to an event’s significance is important. Any decision to delay a response to a complaint amounts to downgrading the incident.

Note:

the person taking the initial complaint must complete Form 1 (complainant details)
the details received from filling out Form 1 will provide the grounds for a decision as to whether or not to immediately respond, and will also be useful in any subsequent investigation.

Investigation

Should the complaint be investigated?

The effect of spray drift is often plant damage from herbicides, or health and environmental concerns. The first indication of a spray-drift incident is likely to come in the form of a complaint from a member of the public.

In determining whether or not to investigate a complaint, ask yourself the following questions:

Does the information collected from the complainant indicate a breach of a rule in the local authority plan (operative and/or proposed – see Old plan, new plan or both)?
If yes, identify the rule(s) that may have been breached and the significance of the incident based on the information provided by the complainant.
If there are no relevant rules in an operative or proposed plan, is there a breach of the s 17 duty?
Is the information provided insufficient to warrant an investigation (eg, complainant does not recall date)? If there is not enough evidence, inform the complainant that an investigation is not warranted and provide a diary (see Form 4) for future incidents.

If you are unsure whether to investigate, contact an agrichemical consultant and/or the local authority’s lawyer.

Each case will be different and decisions will need to be made on a case-by-case basis.

Tips on interviewing

Information from the complainant must be collected in a systematic manner. The investigation has to identify all possible factors of cause and effect. The information on agrichemical selection and application technique is a starting point in identifying possible causes.

The focus of interviews is to elicit what was seen - not what was thought. Spray-drift complainants sense invasion of privacy and frustration, which can lead to inaccurate although honest opinions being formed. Similarly, witnesses may have mixed feelings. They may share the complainant’s concern, or they may wish to stay neutral, or they may have sympathy for the applicator. If a neutral or unsympathetic witness is given the opportunity to explain what was seen, it can help to describe the larger picture.

Good practice tips

Avoid leading questions. Witnesses should be allowed to tell their story, in their own words.
Never suggest facts to a witness. If the witness is not giving information that fits the picture, ask open questions.
Use questions to focus on points you need to clarify.

Sample collection

All samples should be delivered to a laboratory on the understanding that if the laboratory is not able to carry out the analysis it will immediately arrange for the samples to be forwarded to an appropriate lab.

Vital factors in sample collection are as follows.

Time

The analysts need the sample as soon as possible, so you should collect it immediately, and deliver it to the laboratory after leaving the scene. This maintains evidential integrity by not having to store the samples in the local authority office. Some laboratories will store samples deep frozen, on hold them, until decisions are made as to whether an analysis will proceed.
If in doubt about cost, it is better to collect the samples first and take advantage of any freezer storage the laboratory offers. Remember: once frozen the samples maintain their integrity until defrosted.

Representation

For economic and practical reasons the number of samples must be limited.
The investigating officer must use intuition, and keep an open mind in the sampling technique.
Individual sampling from as representative an area as possible provides the best picture of an incident.
Always wear disposable gloves. Use a new pair for each sample.
Do not bulk sample. Spray drift tends to float, and can be uneven as it lands.

Walking through an area taking samples, from a large number of locations, will give an average of spray concentrations.

Sample the least affected areas first, and the worst last. This practice increases evidential integrity.
Vegetation samples should be from the outer areas of a plant.
The average may be less than the levels that caused damage. This can establish a misleading defence to drift damage. When sampling before plant damage appears or with non-herbicide drift, consider the path and the extent of the drift. A rule of thumb is to estimate the likely path of the drift, and sample systematically:
- from the point of the complaint
- to the point of agrichemical application
- the site at which the spray tanks were filled, filling sites and the spray tanks.
Sampling application areas is important for establishing the identity of the applicator, the agrichemical and the concentration of that agrichemical.
Sampling of filling sites can indicate the agrichemical used. However, if more than one chemical is used over time, it could be different to what was used at the incident. Some discretion is necessary.
Take samples from areas likely to be exposed to any drift (eg, the outside leaves of plants, and plants away from the cover of trees or buildings).
Consider the swirling effect on spray deposition. The wind is one factor in drift direction, but application technique, particularly aerial or air-blast spraying, can cause a swirling effect irrespective of wind direction.
As you work backwards from the area of complaint to the actual application site, considering shelter belts, buildings or other undulations between the sampling points can help to identify likely deposition points.
Consider how and where vapours will or are drifting (with volatile agrichemicals).
Consider sampling again if plant damage appears later.
Sampling immediately at the time of the complaint, and then later as plant damage appears, can identify heavily affected areas and drift patterns.
Vegetation and water samples provide the best indication of spray drift. If soil samples are taken they should be taken from exposed areas. These samples should be scrapings from the surface only. Place each sample in a suitable container, such as a clean press-seal bag.
Water samples must be collected in specially prepared sample bottles to avoid contamination. For sampling tank water, allow the tap to run first, to flush the pipe.
Do not freeze water samples, but keep them cool.
Surface samples can be collected by wiping the surface with a clean tissue and placing the tissue in a clean press-seal bag. An unused tissue should be submitted in a separate sample bag for comparison as a control sample.

Evidential integrity

You must know, and be able to account for, exactly what happened to the sample from the time you took it from its original site until the time it reaches the laboratory.
When the sample is not with you, you must be able to account for its location (eg, “I placed the sample in a chilly bin in the local authority vehicle and I locked the vehicle”.
This includes the prior history of any utensils, gloves, or containers that come in contact with or were near the sample.
To meet these standards, you need:
- another person to assist with documentation
- fresh gloves for each sample
- fresh containers or bags for each sample
- the smallest possible containers or bags for each sample
- press-seal plastic bags, with as much air removed as possible, for vegetation samples
- to place the original bag in another bag to avoid cross-contamination
- to store samples from light to avoid degradation
- to label and seal bags or containers before moving to the next sample site, to avoid any possibility of confusion as to where the samples were from
- to use a seal large enough for a signature, and name, and a tape that cannot be removed without trace (sealing tape identified clearly as the property of the local authority is more suitable than blank tape)
- to record when, and where, any sample was left before reaching the laboratory (eg, in a locked vehicle while sampling other sprayed areas; with the courier for transport to the laboratory)
- to record, by plan or photograph, the location of sampled sites
- to keep samples secure at all times (eg, do not leave samples in unlocked vehicles); the procedures in place with the laboratory for security of samples should be followed
- to take photographs of samples collected (this should be done by the investigating officer).

Documentation

All of the forms attached are designed to comply with the laws of evidence, as well as to assist with an investigation. The forms must be completed accurately.
All courier receipts, or receipts from the laboratory, are vital evidence. Any loss of receipts affects the integrity of the exhibits.
Photocopies of receipts should be placed on the investigation file, and the originals secured as exhibits. Lost receipts cannot be replaced and need the full records of courier companies, which takes time and is expensive.

Best practice tips

There is no correct number of samples to take. The total area affected by spray drift, the number of residences, and wind speed and direction are variables to consider when deciding on sampling sites and the number of samples that need to be taken.
Remember: water and vegetation samples are the most important key indicators of drift.
All other possible causes must be considered and excluded. Plant damage, human health and animal symptoms may not have been caused by an agrichemical, but by stress, disease or other factors. Even where a herbicide is the cause, other applications nearby, even some weeks beforehand, could have caused the damage. Volatile agrichemicals are capable of travelling kilometres off target, so it is necessary to consider interviewing neighbours.

Map of the location / affected area

During the visit it is useful to draw a map of the location where the drift took place. An effective way is to use acetate sheets (A4 size), then lay these over aerial photographs or topographical maps of the area. This map should include:

an indicator for north
the area where the drift occurred
the target area for the spray
any roads, property boundaries and buildings
an arrow indicating the path of the spray drift
wind direction at the time of the incident
any natural or artificial shelter belts (including hedges and large trees) between the target and the drift areas
the sampling locations and sample numbers of any samples collected
the location of the exposed people at the time the spray drift occurred
an indication of the relevant topography
any other relevant feature(s).

It would also be beneficial to have the witnesses describe in their own hand (drawing and writing) what they saw.

Freeze the scene

Fixed reference points are essential to accurately place any photograph or diagram. Major reference points (eg, bridges, buildings and trigs) show on maps or aerial photos.
Minor reference points need to be identified by locating them in relation to major points and labelling the marker (for example, placing a 60 cm white peg in the ground is wasted if it later becomes overgrown. By noting the location to major reference points it is available later).

Photographic evidence

Photos should be taken. Here are some points to consider.

Show the big picture (ie, an overall shot of the scene), so that sampling and other close-up shots can be located.
Every photo has to tell a story. For example, a damaged plant needs at least three shots:
- a close-up of the damage
- an overall view of the plant to show the context and location
- a wide shot showing the location of the plant in the wider picture.

RMA

The usual procedure for the inspection of a property and the collection of samples, as given in s 332, applies as follows.

332. Power of entry for inspection.

(1) Any enforcement officer, specifically authorised in writing by any local authority or consent authority to do so, may at all reasonable times go on, into, under, or over any place or structure, except a dwelling house, for the purpose of inspection to determine whether or not.

(a) This Act, any regulations, a rule of a plan, a resource consent, section 10 (certain existing uses protected), or section 10A (certain existing activities allowed), or section 20A (certain lawful existing activities allowed) is being complied with; or

(b) An enforcement order, interim enforcement order, abatement notice, or water shortage direction is being complied with; or

(c) Any person is contravening a rule in a proposed plan in a manner prohibited by any of sections 9, 12(3), 14(2), or 15(2).

(2) For the purposes of subsection (1), an enforcement officer may take samples of water, air, soil, or organic matter.

(2A) Where a sample is taken under subsection (2) an enforcement officer may also take a sample of any substance that the enforcement officer has reasonable cause to suspect is a contaminant of any water, air, soil, or organic matter.

(3) Every enforcement officer who exercises any power of entry under this section shall produce for inspection his or her warrant of appointment and written authorisation upon initial entry and in response to any later reasonable request.

(4) If the owner or occupier of a place subject to inspection is not present at the time of the inspection, the enforcement officer shall leave in a prominent position at the place or attached to the structure, a written notice showing the date and time of the inspection and the name of the officer carrying out the inspection.

(5) An enforcement officer may not enter, unless the permission of the landowner is obtained, any land which any other Act states may not be entered without that permission.

(6) Any enforcement officer exercising any power under this section may use such assistance as is reasonably necessary. Remember that s 332(6) is available if you need to take other people onto the property to assist you in the investigation.

Remember that s 332(6) is available if you need to take other people onto the property to assist you in the investigation. If personable grounds for believing an offence punishable by imprisonment has occurred, a warrant may be needed to enter and collect evidence under s 344.

Evaluation of information collected

To evaluate the information collected, consider the following questions:

Did off-target spray drift actually occur?
Has the operative and/or proposed plan been complied with?
Is there evidence of a breach of the RMA, sections 15(1)(a), 15(1)(b), 15(2), or a failure to comply with the s 17 duty?

Decision on action required

Once information has been collected and evaluated, the appropriate follow-up action needs to be considered. Staff should take into consideration any related history of complaints and/or incidents. Possible follow-up actions include one or more of the following.

No further action

This may be the case if a complaint is found to be frivolous or malicious, or if no corroborative evidence can be found to substantiate a complaint from a single individual. Providing a fact sheet/checklist for individuals to complete for next time could also follow this up (see Form 4).

A caution to the applicator / property owner

This is appropriate if there is no prior history of such problems, the incident could have been avoided with a little more care, and there are no significant adverse effects.

Requirement for the applicator / property owner to take appropriate measures to prevent similar occurrences

The enforcement options available are:

an abatement notice
an application for an interim enforcement order
an application for an enforcement order.

If the local authority does not have relevant rules in the operative plan and if the proposed air plan has not been notified, an abatement notice can be issued or an application for interim enforcement order and/or enforcement order can be filed relying on s 17 prior to public notification of the proposed air plan.

Once the proposed air plan is publicly notified (and later when the air plan is operative), if there is evidence of a breach of the proposed air plan (or operative air plan) the local authority can issue an abatement notice, apply for an interim enforcement order and/or apply for an enforcement order for breach of the plan.

The standard of proof for an application for interim enforcement order or enforcement order is “on the balance of probabilities” (refer to glossary). If an appeal is filed against an abatement notice, the standard of proof is also on the balance of probabilities.

Prosecution

The options available are as follows.

If you have evidence that an agrichemical has been discharged directly into water, and if the discharge is not expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent or regulations, the local authority can prosecute under s 15(1)(a).
If you have evidence that an agrichemical has been discharged onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water, and if the discharge is not expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent or regulations, the local authority can prosecute under s 15(1)(b).
When the proposed regional air plan has been publicly notified (and once the plan is operative), s 15(2) applies, and if you have evidence that an agrichemical has been discharged into the air from any place or any other source, whether moveable or not, in a manner that contravenes a rule in the plan, unless the discharge is expressly allowed by a resource consent or allowed by s 20A (certain existing lawful activities allowed), the local authority can prosecute.

The evidence required for a prosecution is the criminal standard, which is “beyond reasonable doubt”.