PW investigates: Lack of transparency, scrutiny involving state agency’s Pesticide Section

PW investigates: Lack of transparency, scrutiny involving state agency’s Pesticide Section

- in Environment, Top Story
(Photo: NC Department of Agriculture 2018 Pesticide Report)

North Carolina’s dated and weak pesticide regulations do little to discourage the misuse of dangerous chemicals

A few hours before dawn one March morning in 2013, Johnathan Covington woke to find his young daughter on the couch, crying. The night prior, an acrid smell had begun infiltrating the family home. Covington’s daughter said her eyes hurt and she couldn’t sleep. 

Now that the odor was even stronger, Covington thought plastic wires were burning inside the walls.

He roused his wife and their two children — including an infant — and rushed them outside. In the bracing chill of late winter, the odor was worse. To escape, the Covingtons got inside their car and called the Duplin County fire department.

As firefighters approached the Covington home around 6 a.m., they also became ill. Their eyes burned; they couldn’t breathe. They ordered the family to drive away immediately. Then the firefighters left, too. 

The culprit was not fire, but chloropicrin. A poison, it can damage the lungs and irritate the eyes and skin. Troops deployed it as a chemical warfare agent during World War I. Although chloropicrin is no longer authorized for military use, farmers can legally apply it as a gas to their fields to exterminate nearly every living thing in soil.

Unknown to the Covingtons, William Whaley, illegally operating under a different farmer’s pesticide license, had fumigated a tobacco field near their home with chloropicrin a day and a half earlier. Whaley hadn’t posted any warning signs, nor notified anyone of the fumigation. Nor had he provided protective gear to a migrant farmworker, who had assisted him that day. 

But Whaley and even the landowner refused to take responsibility. “The problem was not in application of the soil fumigants,” claimed Daniel Kornegay, who owned and leased the field, according to an investigator’s case notes, “but that residents are not used to farming and the smells of farming.”

By negligence or accident, pesticide drift harms humans, bees, fish, waterways, yards, private gardens and neighboring crops each year in North Carolina. However, the true extent of the problem is unknown because the state Department of Agriculture’s Pesticide Section, which oversees the investigations, responds primarily to complaints. 

Nonetheless, when the Section does learn of an incident, pesticide violators are rarely punished in proportion to their offenses, a Policy Watch analysis of five years’ of data found. Anemic state standards and a lack of transparency have created a system in which pesticide applicators can violate the law without substantial consequence.

Of the 196 cases settled with the Section in the past five years, the average fine is $1,176. The violations include simple licensing and certification lapses, but also more serious breaches, like burning and improperly storing contaminated containers, misusing restricted pesticides, dumping, exposing the public and farmworkers to toxic substances, killing bees and damaging neighboring crops. In extreme circumstances, pesticide applicators can lose or forfeit their license, but that rarely occurs — just twice since 2015.

A 1981 provision in state law favors violators by capping the financial penalties the department and the state Pesticide Board can assess on commercial applicators: just $2,000 per violation, even for repeat offenders. The maximum is even lower — $500 per willful violation — for private applicators, such as farmers, who spray on property they rent or own. The department’s district managers also have the latitude to privately negotiate with the violators to reduce the fines, which has created an inconsistent and opaque penalty system.

As for the Covingtons, the Agriculture Department referred them to the state Department of Health and Human Services for further evaluation. (The Covingtons could not be reached this week about any effects on their long-term health.)  Four firefighters went to the emergency room, where doctors diagnosed and treated them for chloropicrin exposure.

Whaley, though, dismissed concerns about his actions. Investigator Drew Long wrote in the case notes that Whaley repeatedly failed to cooperate and showed “pure disregard for the regulations.” 

“He said he didn’t know what the big deal was, and that chloropicrin is less harmful than chicken litter,” Long wrote. 

The case notes reflect Whaley’s lack of remorse: “Everyone’s still alive, aren’t they?” he told the investigator.

In 2015, two years after the incident, the Pesticide Board announced it had fined the farmer Randy Riggs, who hired Whaley to fumigate the field.

The amount: $2,400 for 12 violations, including poisoning eight people.

S tephen Ruark flew a crop duster for Parrish Aerial, and although his applicator’s license had expired, and his plane hadn’t been inspected in a year, on this afternoon in 2017, his aircraft was loaded with chemicals to spray on soybean fields in Beaufort County. 

Around 2:15, Gary Dillon and Clara Ireland, who manage a catfish farm, saw a plane spraying a field near Pond No. 6. A few weeks earlier, Dillon told investigators, the USDA had sampled fish from one of the ponds “and it showed chlorpyrifos” — a pesticide that is toxic to aquatic life, earthworms and bees. 

“The fish are marketed as natural,” Dillon said, according to the investigator’s case notes, “we don’t need anything to show up in the fish.”

After Ruark made his pass over the fields, the pond managers found dead snails; a follow up inspection by state agriculture officials detected pesticides in a pond.

Pesticide drift can devastate farmers who grow organic crops, said Karen McSwain, associate executive director for programs at the Carolina Farm Stewardship Association.“It’s huge,” she said. “If a farmer knows they’ve been exposed to chemical drift,” they’ll no longer be able to sell it as organic.

And in some cases, organic farmers can lose their certification for that land for three years. 

If the pesticide drift occurs as the result of an intentional act or even an accident, the affected farmer could sue. But, McSwain said,. “Pesticide regulations should err on the side of caution.”

Ruark was initially fined $3,000 for the drift, his lapsed license and his uninspected plane. But two years later, when the state Pesticide Board approved the settlement agreement, the fine had been reduced by a third, to $2,000.

The seven-member board is appointed by the governor, and focuses on the environment and human health. (A separate entity, the Structural Pest Control Board deals with consumer protection.)

Settlement agreements are common in state government. They allow an agency and the violator to avoid the time and expense of a contested case hearing before an Administrative Law Judge. (In North Carolina, civil penalties, regardless of department, go into a public schools fund for disbursement.)

The notices of violation instruct offenders to contact a district manager if they want to discuss the findings or a settlement. If the person calls to negotiate, based on additional information provided, the settlement amount may be reduced. The conversations occur by phone between the district manager and the respondent, said Agriculture Department spokesman Joseph Pitchford. “To my knowledge there is no written documentation of those conversations, just of the eventual settlement agreement information.”

The Pesticide Section’s two district managers have reduced civil penalty amounts in at least 84% of the cases in the past five years. Generally, the reductions are about one-third of the original fine, but in many instances, offenders negotiate even lighter penalties. This means offenders who are skilled negotiators could have an advantage over their less artful counterparts. And offenders who don’t have the bargaining chops might not even ask for a lesser penalty.

If a settlement amount is not reduced, said Patrick Jones, deputy director of the pesticide program, “it is likely the person did not call to discuss.”

Without a paper trail to understand the settlements, there is not only a lack of transparency, but also puzzling inconsistency. For example, several offenders who had been cited for three or four violations related to bee kills received reduced penalties, paying between $500 and $800. But another offender with just two similar violations, paid the full penalty — $900.

District managers are given some discretion in negotiating the settlements, Jones said. However, they are limited in their authority to drop a monetary penalty below a certain amount. “This is to ensure that all alleged violations are treated similarly,” Jones said. “The facts of each case, and the specific violations alleged, always have to be carefully considered in determining whether a request is reasonable. Requests to simply dismiss a Notice of Violation are frequently denied.”

The Department of Agriculture’s settlement process for pesticide violators differs from a comparable one at the Department of Environmental Quality. Correspondence about civil penalties is documented and available either through the DEQ website or by Public Records Request. DEQ and the Environmental Management Commission use a formula, also known as a matrix, to calculate the fine. 

The Pesticide Board, too, uses a matrix to determine a final penalty, but only for violators who decide not to negotiate the fine. Board Chairman Dr. Ricky Langley told Policy Watch the matrix accounts for factors such as the seriousness of the violation, whether people were injured, the number of violations and whether the person is a repeat offender. 

“With repeated offenses and egregious offenders we do look at stronger penalties and corrective actions,  said Langley, a medical consultant with the State Division of Public Health’s Occupational and Environmental Epidemiology Branch.  

He said that in recent years the Board began compounding the penalties for multiple offenses.

After the final negotiations, the Pesticide Section then forwards the settlement recommendation to the Attorney General’s office, which presents it to the Pesticide Board. Like the EMC, the Pesticide Board then discusses requests for reductions in a public forum, where the offender is invited to attend and address the members. The board then reviews the case and the violator’s history before voting in a public meeting on whether to accept the penalties.

An employee of Sugar Mountain, NC, illegally sprayed Gramoxone, also known as Paraquat, on the town’s flower beds, in the medians, near signs and around town hall. The state reduced the fine from $2,100 to $1,400.

“Our goal is education and prevention first and foremost,” Langley said. “We want offenders to learn from their mistakes and avoid future mistakes.”

Unfortunately, education doesn’t always work. Since the Board so seldom revokes an applicator’s license — and the maximum fine per violation is the same for first-time violators and repeat offenders — there is little financial incentive for the most recalcitrant people to comply with the law.

Two dozen companies involving 47 employees have racked up multiple violations since 2015. (This includes corporate chains like TruGreen, which has independent franchise owners.) Roughly another 10 independent operators are repeat offenders.

Aerial applicators can bear the brunt of the violations because of the amount of land they cover and the unpredictability of wind, which can send the chemicals beyond their intended target. 

Nonetheless, some aerial applicators seem especially sloppy. J. Bryson Cooper of Craft Air Services has logged four violations for pesticide drift in four years. In 2016, chemicals from his plane, destined for a cotton field, wafted onto a car as its driver traveled down a road. Cooper’s $3,200 fine was not reduced. 

But in the most recent incident, which was settled last year, Cooper was spraying a restricted-use pesticide, among the most toxic, onto a soybean field, when the mist drifted into a pond, killing the fish. This time, the $3,200 fine was reduced by a third.

T he legislature set the maximum pesticide fines in 1981 and has never increased them. In today’s dollars, the $2,000 cap would be equivalent to nearly $5,800. Even the lesser maximum penalty of $500 for private applicators would be nearly three times greater, accounting for inflation.

State Rep. Susan Fisher, D-Buncombe, was among a dozen co-sponsors, several of them Republicans, of the Pollinator Protection Act of 2019. The bill would have regulated neonicotinoids, which can harm bees. The measure never made it out of committee.

Fisher said the lack of documentation involving the settlement agreements “is a big gap that needs to be filled in.”

“We need to be consistent with the people we’re supposed to be regulating,” she said, adding that lawmakers should revisit the rules. 

The argument over the state’s weak pesticide law has been brewing since at least 1994, when the NC Center for Public Policy Research published a report about inconsistencies within the Pesticide Section.

At the time, Pesticide Administrator John L. Smith was quoted as saying that the agency deals with a much wider range of applicators and incidents and “needs flexibility in considering all of the factors involved in the cases.”

Yet there has been little if any scrutiny of the Pesticide Section’s penalty system or the law that enables it. A review of the State Auditor’s cases showed no investigations related to the Pesticide Section since at least 2002. The legislative Program Evaluation Division, which functions as a fiscal watchdog, listed no reports dating back to 2008. And the Environmental Review Commission, composed of more than a dozen lawmakers, has not taken up the issue. It’s unlikely to do so: Republican Rep. Jimmy Dixon, a Duplin County farmer, has an extensive record of opposing regulation, especially on agriculture, as well as advocating for less transparency.

State Rep. Pricey Harrison, who sits on the ERC, was among a primary co-sponsor of the 2019 Pollinator Protection Act. She suggested that absent that commission’s action, the Joint Oversight Committee on Agriculture and Natural and Economic Resources should revisit the issue.

“Heavy fines provide a disincentive to act badly,” Harrison said. “There clearly needs to be better oversight of the negotiations. There must be a better way.”