This correspondence is provided as public comments for my petition to amend the pesticide regulations sections 2 VAC 5-670 and 2 VAC 5-680. 

I would like to provide some information on my experience with the application of herbicide on my property.  The events began when Appalachian Electric Power (AEP) began cutting and leaving debris on my property.  The standard easement that AEP uses gives them permission to tear down your home if they want to (copy of AEP easement attached as exhibit 1).  I have been to court with AEP three times acting as my own attorney and we settled out of court once with AEP agreeing to pay me damages.  AEP wrote a letter to the Wythe County General District Court indicating the parties have reached an agreement.  AEP has never paid the settlement and their attorney told me they were not going to pay.   A copy of these documents is included as Exhibit 2.

The reason for the requested amendment was application of herbicide on my property at 881 Lead Mines Road, Austinville, Virginia.  This is also the property where AEP cut brush and trees on my property and left them for me to clean up.  During this past summer I kept noticing that all the vegetation under and adjacent to the power line was dead.  I did not realize what had happened for some time.  I called the Department of Agriculture and a representative of this agency met me at the property.  It was indicated that AEP probably had sprayed the area.  I was told that AEP had an easement to do this spraying.  I informed the individual that he was telling me something that he did not know.  I was told that the AEP easement includes a clause to provide maintenance to their easement.  I have not found any definition of “maintain” that includes destroying something.

In the Complaint Investigation Report Case No 48600 dated July 31, 2012 it refers to the power line right-of-way on my property (exhibit 3).  In my reply dated September 10, 2012 I asked the Virginia Department of Agriculture and Consumer Services and AEP for a copy of this right-of-way agreement (Exhibit 4).  I have not received this document.  I have searched the clerk’s office in the Wythe County Court House and have not found any type of right-of-way or easement agreement for my property.

The first requested amendment is for 2 VAC 5-670  – rules and regulations for enforcement of the virginia pesticide law,  Application and Equipment be revised to include the following:  “No person shall apply, dispense, or use any pesticide or herbicide on property without written permission from the property owner and notification of the application with Material Safety Data Sheets (MSDS) to the property owner”.  All employers are required by OSHA to maintain a list of MSDS information for all employees to see.  My property was sprayed without any notification to me prior to or after the application.   This requirement should have been part of the initial regulations.  One comment on the MSDS sheet for herbicide applied to my property is “if the individual stops breathing call 911”!!

Unless there is an easement or right-of-way agreement that specifically allows application of herbicide or pesticide it should be assumed that this authority does not exist.  It was my experience that the representative of the Department of Agriculture and Consumer Services accepted the right of AEP or their contractor to apply herbicide or pesticide on property where there was a power line.  This assumption should not be acceptable.  I was told it was my responsibility to document that AEP did not have an easement.  I did that, told the Department of Agriculture and Consumer Services that AEP did not have such an easement, with no results.

The second requested amendment is for 2 VAC 5-680 REGULATIONS governing licensing of pesticide business operating under authority of the virginia PESTICIDE control act be revised to include the following:  “Require the revocation of a business license for any one who applies pesticide or herbicide to property without permission from the property owner and notification of the application to the property owner with MSDS information.  It is also required to include restoration of the property and an environmental cleanup”.

The position of AEP and their contractor is that they will proceed with whatever they want to do with the knowledge that an individual property owner could not afford the legal expense to seek damages.   The public needs the help of the Department of Agriculture and Consumer Services to protect their property and insist on the responsible application of herbicides and pesticides.

These comments are not intended to be making any complaint toward the employees of the Department of Agriculture and Consumer Services.  They were considerate and did not intend to be misleading. They were only making comments that were normal in the past.