[Congressional Record Volume 148, Number 135 (Tuesday, October 15, 2002)]
[Senate]
[Pages S10444-S10446]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BINGAMAN:
  S. 3111. A bill to compensate agricultural producers in the State of 
New Mexico that suffered crop losses as a result of use of a herbicide 
by the Bureau of Land Management; to the Committee on Agriculture, 
Nutrition, and Forestry.
  Mr. BINGAMAN. Mr. President, I rise today to introduce a bill that I 
do believe should not be necessary, and I hope ultimately will not be 
needed. Unfortunately, the failure of the Federal Government to own up 
to its responsibility has left a small group of farmers in Southern New 
Mexico with no other option.
  As I understand it, last July the Bureau of Land Management and the 
Natural Resources Conservation Service applied herbicide, Tebuthiuron, 
on a ranch in Southern Eddy County to help control woody brush. The 
brush control was part of an EQIP project under NRCS.
  I have no reason to doubt the application was consistent with label 
requirements and normal practice. Unfortunately, as frequently happens 
in New Mexico in July, a heavy rainstorm struck the area and the 
pellets of herbicide were apparently washed into the Black River. The 
river is the source of irrigation water for a number of farmers in the 
vicinity of the town of Malaga.
  Unaware of the contamination in the water, farmers irrigated their 
fields in the normal way. Almost immediately, damage to cotton, hay and 
other crops was observed. The Eddy County Extension Office of the 
Cooperative Extension Service at New Mexico State University was asked 
to investigate the damage to the crops.
  Mr. Woods E. Houghton of the Eddy County Office conducted a thorough 
review of the evidence and in a report dated August 20, 2002, concluded 
that Tebuthiuron was the likely cause of the crop damage. The report 
noted levels of Tebuthiuron of over 2 parts per million in some 
samples. Later tests by the State Chemistry Laboratory found levels 
over 5 pm. I ask unanimous consent that the August 20th Cooperative 
Extension Service report be printed in the Record at the conclusion of 
my remarks, exhibit 1.
  All the evidence seems to point to the government's application of 
Tebuthiuron as the most likely source of the poisoning of the crops in 
Malaga. Last month, I asked the heads of BLM and NRCS to look into the 
situation and to advise me what recourse is available to the farmers 
who have lost their crops. Unfortunately, the agencies have not assumed 
any responsibility for the contamination. Moreover, normal crop 
insurance doesn't cover damage caused by chemicals.
  What are the farmers of Malaga, NM, to do? Through no fault of their 
own, they have lost their crops, and the Federal Government is not 
willing to take responsibility. For example, Mr. Oscar Vasquez and his 
family have lost 130 acres of cotton, 20 acres of hay and 1 acre of 
full-grown pecan trees. As Mr. Vasquez points out, his losses may 
persist for several years. He has asked for my assistance in securing 
compensation for his losses. I ask unanimous consent that a letter to 
me by Mr. Vasquez be printed in the Record at the conclusion of my 
remarks, exhibit 2. It appears that as many as nine farmers have 
suffered direct losses from the contamination of their crops and an 
additional thirteen farmers suffered losses when they couldn't irrigate 
because of the contamination in the water.
  I have urged the heads of BLM and NRCS in the strongest terms 
possible to do what they can to assist the farmers of Malaga. 
Unfortunately, nobody wants to take responsibility. The Federal 
Government's response so far is to suggest the farmers sue the 
government, but that's a long, drawn-out process. It is also an 
unacceptable response if the Federal Government is found to be 
responsible.
  The farmers of Malaga need help paying their bills now. These are not 
rich people, but hard working family farmers. Many have farmed the same 
land for many, many years. I ask unanimous consent that a recent 
article from the Carlsbad Current Argus describing the impact this 
event is having on a number of the farmers of Malaga be printed in the 
Record at the end of my remarks, exhibit 3.
  At this point I don't see any other option than to ask that Congress 
provide some relief to the farmers of Malaga that have suffered losses 
because of this unfortunate situation. I note that last year Congress 
provided financial compensation to farmers in Idaho that suffered crop 
losses in a very similar situation and where BLM and NRCS refused to 
provide compensation. When a federal program was clearly the source of 
the contamination in the water, I do believe the government has a 
responsibility to come to the assistance of the people who have 
suffered losses.
  It is my hope that the agencies involved will step forward, 
acknowledge their responsibility, and do what is right and necessary to 
compensate the farmers. Unfortunately, it now appears the agencies are 
not inclined to do the right thing. Instead, they tell us the affected 
farmers are free to file a tort claim; we all know what a costly and 
time-consuming process any legal action can be. However, the farmers 
need help right now. While it is not the best way, I do believe 
Congressional action may be the only way of getting these farmers the 
financial help they need in a timely manner.
  The bill I am introducing today simply authorizes the Secretary of 
Agriculture, in consultation with the Secretary of the Interior, to use 
funds of the Commodity Credit Corporation to compensate the farmers for 
their losses. We are still working with the Cooperative Extension 
Service at New Mexico State University to determine the total amount of 
the losses, but in light of the small area affected, I fully expect the 
sums needed to be very modest, indeed.
  Mr. President, I ask unanimous consent that a letter supporting this 
legislation from Frank DuBois, New Mexico's Secretary of Agriculture, 
exhibit 4, and a copy of the bill be printed in the Record.
  There being no objection, the bill and additional material was 
ordered to be printed in the Record, as follows:

                                S. 3111

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. COMPENSATION OF NEW MEXICO PRODUCERS FOR CROP 
                   DAMAGE FROM BLM USE OF HERBICIDE.

       (a) In General.--The Secretary of Agriculture, in 
     consultation with the Secretary of the Interior, may use such 
     funds of the Commodity Credit Corporation as are necessary to 
     compensate agricultural producers in the State of New Mexico 
     that suffered crop losses as a result of the use of the 
     herbicide tebuthiuron by the Bureau of Land Management during 
     the 2002 calendar year.
       (b) Liability.--Nothing in this section constitutes an 
     admission of liability by the United States arising from the 
     use of the herbicide tebuthiuron by the Bureau of Land 
     Management.
       (c) Regulations.--
       (1) In general.--The Secretary of Agriculture may 
     promulgate such regulations as are necessary to implement 
     this section.
       (2) Procedure.--The promulgation of the regulations and 
     administration of this section shall be made without regard 
     to--
       (A) the notice and comment provisions of section 553 of 
     title 5, United States Code;
       (B) the Statement of Policy of the Secretary of Agriculture 
     effective July 24, 1971 (36 Fed. Reg. 13804), relating to 
     notices of proposed rulemaking and public participation in 
     rulemaking; and
       (C) chapter 35 of title 44, United States Code (commonly 
     known as the ``Paperwork Reduction Act'').
       (3) Congressional review of agency rulemaking.--In carrying 
     out this subsection, the Secretary shall use the authority 
     provided under section 808 of title 5, United States Code.

         Cooperative Extension Service, New Mexico State 
           University,
                                  Las Cruces, NM, August 20, 2002.
       Saturation report of cotton damage in the Malaga NM area 
     approximately, 350 acres.
       Background: Oscar Vasquez farm, and his landlords.
       2001 crop year, cotton except 10 acres (Duarte); 23 acres 
     on home place, which was in alfalfa.
       Pre 15 January 2002 field were moldboard, disked to comply 
     with pink bollworm regulations. They were also treated with 1 
     pint Trifluralin, 1 pint Caporal per acre. This was 
     incorporated with a spring tooth harrow and disked one time. 
     Watered on 15-30 January 2002 and first part of February 
     2002, with black river water.
       15 March 2002 stale bed worked up.

[[Page S10445]]

       21 April 2002 Planted with DG-206 NK seed.
       25 June 2002 irrigated with CID water.
       2 July 2002 Cultivated.
       10-11 July 2002 sprayed for boll-worms (Heliothis zia) with 
     1.5 pint Lorsban and 1-pint Amigo surfactant per acre.
       26 July 2002 Boll weevil control committee sprayed fields 
     Malthion ULV.
       20-23 July 2002 Irrigated with black river water.
       18-19 July 2002 Rain floodwater on black river.
       27 July 2002 Oscar noticed problems with cotton.
       30 July 2002 Oscar called Woods E. Houghton county agent.
       31 July 2002 Woods E. Houghton visited Oscar Vasquez farm, 
     and concluded something in the water caused problems. Woods 
     took soil and plant samples. Samples sent to Dr. Bob Flynn 
     for Ecreading. Dr. Goldberg and Dr. McWilliams for diagnosis 
     of disease or nutrition disorders if they occurred. Surface 
     water bureau notified NM ED department Dr. Jim Davis. 
     Suspected possible illegal disposal of produced water which 
     is high in saline. High salt consternation could cause 
     similar damage.
       7 Aug 2002 Woods Houghton and Jim Ballard of Eddy County 
     Sheriff Office, flew over and photographed. Talked with Oscar 
     again. Recalled BLM treated a number of acres above on the 
     black river with Spike (Tebuthiuron) 8 July 2002. Confirmed 
     this with Mr. Mike Ramirez BLM. Reported possible off target 
     effects to Ms. Margery Lewis NMDA and Mr. Russell Knight 
     NMDA. Conferred with Mr. Tom Davis CID.
       8 Aug 2002 Dr. Flynn reported that the unhealthy plants had 
     a lower Ec value then the healthy plant soil samples. The 
     problem most likely not salt or produced water.
       16 Aug 2002 Received from Dr. Goldberg diagnosis record, 
     which indicated that no plant pathogenic microorganisms were 
     isolated from the sample submitted.
       Symptoms: Plant Yellowing at top and then turned clororotic 
     followed by necrosis between veins and on leaf edges with DG-
     206. On ACLA 1517-99 started from bottom to top but same 
     symptoms. Fruit drop starts first. Plants die from top down. 
     Some plants appear to recover set new flowers and attempting 
     new growth. Most 90% or more die back almost completely. 
     Symptoms atypical of Spike but consistent with chlorophyll 
     inhibitors. Also the root hairs are dead and brittle do not 
     stay attached to plant when pulled up.
       Other Information: On contact with BLM and NRCS equip 
     project on three mile draw area was treated with Tebuthiuron 
     (Spike 20p) on 8 July 02. Approximately 2,300 acres were 
     treated some at 0.5AI and some at 0.75 AI per acre. This draw 
     drains in to the black river above the diversion. The 
     diversion diverts water to the farms, which are reporting 
     damage. M&M Air Service was the applicator. Laboratory 
     results from Analytical Pesticide Technology Laboratories 
     Wyamissing Pa. Reported results of soil 0.187 ppm, cotton 1 
     1.66ppm, cotton 2 2.03ppm, Elm collected at diversion 
     0.196ppm, Cottonwood collected at diversion 0.329ppm. These 
     samples were collected by Mr. Tom Davis and submitted by 
     Carisbad Irrigation District for analysis. Samples were also 
     taken by Mr. Russell Knight and Mr. Woods Houghton on 09 Aug. 
     02. The hydrograph of blackriver at USGS gauging station 
     above the diversion but below three-mile draw show the water 
     flow on the 17 July at less then 4 CFS, on 18-19 July it 
     peaked at greater the 100 CFS. This area experienced high 
     intensity short duration storm in this time frame. There are 
     older treatment areas in the vicinity as well.
       Conclusion: Tebuthiuron Herbicide contamination of black 
     river prior to irrigation has resulted in cotton crop losses. 
     That flash flooding may have contributed to off target 
     movement of products containing Tebuthiuron.

                                            Woods E. Houghton,

                                    Eddy County Agriculture Agent/
     Acting Program Director.
                                  ____

                                               September 17, 2002.
     Senator Jeff Bingaman,
     Albuquerque, NM.
       Dear Senator Bingaman: I am writing this letter to ask for 
     your help with a serious problem that has occurred on my own 
     Farm, and my rented Farms.
       My name is Oscar Vasquez, I farm approximately 320 acres of 
     cotton, and alfalfa for 27 years. I own 145 acres, and share 
     crop 175 acres from my neighbors, Mr. Damon Bond, Mrs. 
     Catalina Carrasco, and Mr. Pedro Duarte.
       On July 20, 2002, I began watering my cotton with Black 
     River water as I would normally, and continued for 8 days. On 
     July 27, 2002, I began to see wilting effects on the cotton 
     fields I started watering first. I contacted Mr. Woods 
     Houghton, our Eddy County Extension agent. He came and saw 
     the damage on my cotton, it took us till August 7, 2002, to 
     conclude that my cotton had received the damage thru the 
     contaminated irrigation water. We also concluded that the BLM 
     had applied herbicide called Tebuthiuron (Spike) to 
     approximately 2400 acres on Three Mile Draw which is on the 
     Gene & Kathy Hood Ranch, above the Black River Irrigation 
     Diversion Dam.
       The BLM and the NRCS (National Resource Conservation 
     Services), applied this chemical to control brush on the Hood 
     Ranch. The chemical was applied by airplane in pellet form on 
     July 8, 9, & 12. The Hood Ranch received a 2\1/2\" rain in 45 
     minutes on the 18th & 19th of July washing the chemical in 
     the Black River. I began to irrigate my cotton on July 20, 
     2002. My cotton crop has since sustained severe damage, with 
     the chemical terminating the crop before maturity, therefore 
     my crop is totally ruined.
       I have contacted my cotton buyer and he does not want to 
     buy my cotton crop this year. I have sold him 23 consecutive 
     cotton crops in the past. What am I to do with this damaged 
     crop? Do I harvest it? If I do, who will buy it? Or do I 
     destroy it, or graze it? I need answers to all these 
     questions.
       New Mexico Agriculture Department has not assumed the 
     responsibility to let me know what to do. The BLM has not 
     assumed the responsibility either. What are my Landlords 
     going to do for income this year. Mr. & Mrs. Damon Bond are 
     86 years old, Mrs. Catalina Carrasco is 68 years old, and a 
     widow, Mr. Pedro Duarte is a little better off, he is 47 
     years old and has a job. I am 53 years old with the last of 5 
     children attending NMSU. My wife and I do not hire any help 
     on the Farm, we do all the tractor and manual labor work 
     ourselves
       We would appreciate an answer to all our problems, 
     preferably our income problem. The long term damage of these 
     chemical effect is 5 years, or longer. Thank you for your 
     cooperation.
           Sincerely yours,
                                                     Oscar Vasquez
       P.S. Please see attached evidence gathered by Woods 
     Houghton NM Eddy County Extension Agent, and the test results 
     on soil and foliage samples by N.M.A.D. Laboratories. The 
     total acreage is 130 acres of Cotton, 20 acres of Hay, and 1 
     acre of full grown Pecan Trees, on the Oscar Vasquez Farm.
                                  ____


                 [From the Current Argus, Oct. 5, 2002]

Fighting for the Farm: Malaga Farmers Face Uncertain Future After Crops 
                                Damaged

                           (By Stella Davis)

       Malaga.--Oscar and Gloria Vasquez sit at the table in their 
     dining room with a morning cup of coffee. But these days, the 
     couple gets little pleasure in gazing out through the large 
     dining room window facing their farm fields.
       Where normally they would see healthy stands of cotton, all 
     they see now are rows of small, leafless cotton stalks with 
     stringy cotton bolls.
       The couple farms about 320 acres--145 acres are owned by 
     them and the 175 remaining acres they sharecrop for three 
     other families who depend on the income from their shares.
       Disaster struck Malaga farmers in late July when they 
     watered their fields from the Black River diversion dam, 
     unaware the water had been contaminated with the herbicide, 
     tebuthiuron.
       Later they discovered the Bureau of Land Management applied 
     the herbicide on the ground just above the diversion dam to 
     control woody vegetation on range and ranchland.
       The chemical was applied in conjunction with a federal cost 
     share program through the Natural Resource Conservation 
     Service, an agency of the U.S. Department of Agriculture. The 
     rancher and the federal agency share the cost of applying the 
     chemical on private ranch land.
       ``This crop is our income. It's our living. We are losing 
     money, and the bills are coming in,';' Oscar Vasquez said. 
     ``I can survive this year, but there are other farmers who 
     won't. They will be wiped out financially. I have two 
     cousins, Tony and Mike Vasquez, who also have crop damage. 
     They are in their sixties and the income loss will be 
     devastating for them.''
       Oscar Vasquez, 53, said he has always tried to meet his 
     commitments and financial obligations and is proud that he 
     and his wife have put five children and a daughter-in-law 
     through college.
       ``My wife and I put them through college, and our youngest 
     is ready to graduate. They all went into engineering and 
     graduated from New Mexico State University. We worked hard on 
     the farm to make the income to put them through college. It's 
     expensive to put kids through college, but we managed. I feel 
     it is a privilege to send my kids to school. The next few 
     months are going to be tight in meeting our son's college 
     expenses. This couldn't have come at a worse time. He's close 
     to finishing.
       ``We will make it through this year financially, but I 
     don't know what is going to happen next year,'' he said. ``We 
     don't know how long the soil will stay contaminated. I have a 
     payment coming due on a mechanical baler, and there are costs 
     associated with planting cotton that I will have to cover 
     without the income from the crops. I usually grow hay and 
     cotton. But because water was scarce this year, I chose to 
     grow cotton and put all the water on it. Now I don't have 
     anything.''
       In another farmhouse about a mile down the road, Dick 
     Calderon worries how he is going to take care of his wife, 
     twin 4-year-old daughters, a 6-year-old son and his elderly 
     parents living next door, as well as meeting all his 
     financial obligations.
       Over half of his cotton crop is dying from water 
     contamination, and his alfalfa died due to lack of water.
       His Federal farm loans are coming due, as are his tractor 
     and equipment loans.
       Damon and Marie Bond, both 86, rely on income from the farm 
     that the Vasquezes

[[Page S10446]]

     sharecrop for them. This year they will have to live on less. 
     Their cotton crop is also damaged.
       The Vasquezes, Calderon and the Bondses are among 11 
     families that have fallen victim to the agriculture disaster.
       They say they are frustrated they feel the state Department 
     of Agriculture--the lead agency in the investigation of the 
     crop kill--has not given them answers or direction on what 
     they should do with their contaminated crops. Even worse, 
     they said, no one has stepped up to the plate to take 
     responsibility.
       ``I began watering my cotton with Black River water as I 
     would normally and continued for eight days,'' Vasquez said. 
     ``On July 27, I began to see wilting effects on the cottom 
     fields that I started watering first.''
       Alarmed, Vasquez contacted the county extension agent to 
     identify the cause.
       ``I contacted Woods Houghton, and he worked with me to 
     determine what caused the damage,'' Vasquez said. ``He's been 
     the only one who has tried to help us and do right by us.''
       Houghton's detective work, poring over books and data for 
     many hours, revealed the cotton crop showed classic signs of 
     chemical damage. More sleuthing on his part showed 
     tebuthiuron was the cause.
       After further investigation, farmers learned the chemical 
     had been applied in the early part of July. On July 18 and 
     19, more than 2 inches of rain fell on the Black River area 
     in a 45-minute period, and the chemical washed into the 
     river.
       Within days of Vasquez's report of crop losses, other 
     farmers who irrigated shortly after the rain began reporting 
     crop losses that ranged from cotton--the most susceptible to 
     tebuthiuron-to alfalfa and pecan and cottonwood trees.
       Calderon said the fear is ever present that the family farm 
     could be lost.
       ``We are going into the third month, and we have not got 
     any answers yet,'' Calderon said. ``The financial stress for 
     me is pretty high right now. I planted 45 acres of cotton, 
     and I've lost over half. I also lost my hay too. I had to 
     stop watering because the water was contaminated. It's dried 
     up, and farming has come to a dead stop for a lot of us. We 
     need some answers. We don't know what to do with what we have 
     in the ground.''
       Vasquez said no one wants to buy the contaminated cotton. 
     Harvesting it would be financial suicide, he said.
       ``The cotton market is down, which is bad enough, and then 
     this,'' he said. ``We get about $50 per bale, but when you 
     add up the cost to harvest one bale, it adds up to $135. No 
     one wants to buy damaged cotton, so why would we go to the 
     cost of harvesting it at $135 per bale.''
       He said the state Department of Agriculture has agreed to 
     one thing: Seed from the contaminated cotton cannot be fed to 
     livestock.
       ``We sell the seed to the dairies in Roswell,'' Vasquez 
     said. ``They use it to feed the cows. So there is another 
     amrket loss for us.''
       Vasquez's cousin, Mike Vasquez, said he has lost 25 acres 
     of cotton, and the loss of income will be devastating.
       ``I have disaster insurance, but I've been told it does not 
     cover manmade disasters,'' he said. `I didn't cause this 
     disaster. The federal government did. I may be poor, but I'm 
     not stupid. Why would I damage my crop that is my livelihood? 
     I'm not that dumb to put down a herbicide in our monsoon 
     season. The BLM, which is the federal government, did that 
     and look what it has brought us (farmers) financial ruin.
       ``We don't know what this stuff has done to the soil and we 
     don't know for how long the soil will be contaminated. It 
     could be several years. But no one is stepping up to take 
     blame for what has happened. The cotton is still in the 
     gound, and we don't know what to do with it.
       Mike Vasquez, who retired after 30 years with the city of 
     Carlsbad's water department, said farming supplements his 
     modest retirement income from the city, and he has had many 
     recent sleepless nights worrying how he is going to pay his 
     farm loans.
       ``The worry is making me physically sick,'' he said. ``We 
     need some answers, and nobody is giving them to us. We also 
     need some financial relief. There has to be someone out there 
     that can give us the answers we need.''
       Marie Bond, 86, who lives near Oscar and Gloria Vasquez, 
     said the loss of income this year is a blow, but she and her 
     husband will just have to tighten their belts and make do 
     with less.
       ``Anything that happens to Oscar happens to us,'' she said. 
     ``My husband and I have weathered some rough times in our 
     lives and, although the income from the farm is important, we 
     will make, it. It's a lot harder on Oscar because he has the 
     expenses that have to be paid and there is no money coming in 
     right now,'' she said.
       ``This is something that should not have happened. It could 
     have been avoided. It's just terrible.''

                                        Department of Agriculture,


                                          State of New Mexico,

                                  Las Cruces, NM, October 3, 2002.
     Hon. Jeff Bingaman,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Bingaman: We have received complaints from 22 
     farmers in the Carlsbad region indicating they have crop 
     damage which appears to be from alleged movement of a 
     herbicide from an area treated by the Bureau of Land 
     Management (BLM) and the Natural Resource Conservation 
     Service (NRCS). We are currently investigating the complaints 
     to determine if there were violations of state or federal 
     law. I seek your assistance in providing financial support 
     for the individuals whose crops were damaged.
       On August 7, 2002, the New Mexico Department of Agriculture 
     (NMDA) received its first complaint regarding crop damage due 
     to alleged movement from an area treated with Tebuthriuron 
     (Spike) in the Three-Mile Draw area. Preliminary 
     investigation indicates the BLM and the NRCS treated 
     approximately 2,400 acres of rangeland. We also found 
     evidence of significant precipitation which occurred after 
     application in the approximate treated area.
       NMDA has taken samples from the complainants' fields as 
     part of the investigation. Some of the samples analyzed thus 
     far have tested positive for Tebuthiuron. We will continue to 
     analyze the remaining samples and will provide you with the 
     results when they are complete.
       It is my understanding that some of the complainants have 
     crop insurance; however, chemical related damages are not 
     covered. The affected individuals will suffer a severe 
     financial hardship if assistance is not provided. It is also 
     clear these individuals have suffered losses through no fault 
     of their own. Many are small farmers and may not survive 
     without direct financial assistance.
       In 2001 Congress authorized the expenditure of not more 
     than $5 million from the Commodity Credit Corporation to pay 
     claims of crop damage that resulted from the BLM's use of 
     herbicides during the 2001 calendar year in the state of 
     Idaho Enclosed is a copy of Section 757 of Public Law 107-76, 
     which provides the funding. Similar consideration should be 
     given to the affected New Mexico farmers. Our investigation 
     is not complete at this time, but I believe it is very 
     important to bring this matter to your attention since the 
     relevant appropriation bills have not been passed by 
     Congress.
       If you have any questions, please contact me.
           Sincerely,
                                                  Frank A. DuBois.
                                 ______