Wednesday, January 9, 2008

Ag-Mart hearing at the Pesticide Board, 1/8/08

Yesterday, PESTed's staff attended a hearing in Raleigh on the infamous Ag-Mart case, in which the tomato grower has been investigated for hundreds of violations of NC pesticide law and federal Worker Protection Standards. The investigation started off back in 2005 after three of Ag-Mart's employees gave birth to children with severe birth defects, all within a few months of one another.
North Carolina's Pesticide Board, a citizen body that serves as the professional licensing board for pesticide applicators in the state, is charged with making the decision in the $185,000 case. At yesterday's hearing, the board heard hours of testimony from lawyers for both sides, and then asked their own legal counsel for other information before their next meeting on Feb 12th. So, no decisions until then, at least.
Three different news outlets have covered the hearing, so rather than giving you a blow by blow, I'll refer you on to them:

Raleigh News & Observer - Hearing pits state against Ag-Mart
Wilmington Star-News - No ruling yet about safety violations at grower's area farms

Independent Weekly - Ag-Mart case still hanging

I do want to share a few key impressions from the day, however:

1) Over the past year, the NC pesticide board has received recommendations from two separate administrative law judges ("ALJs" - Judge Wade and Judge Webster) that most of the charges against Ag-Mart should be dropped and their fines drastically reduced. I had feared that when pressed with making a final decision, the board might simply defer to those judges and accept their recommendations without much question. But so far, they don't seem to be doing that. Board members asked many probing and pointed questions of attorneys on both sides during the hearing, giving me the impression that they're skeptical of many of Ag-Mart's arguments, and that their minds are far from made up yet. Of course there's not been any real decision yet, but I'm heartened somewhat to find that the pesticide board is weighing the matter very carefully.

2) Farm workers, babies with birth defects, consumers who eat food harvested too soon after spraying, air pollution and run-off - there are so many real human and environmental impacts of any company's failure to abide by state pesticide regulations, and nary a one was mentioned in the 3 hours of testimony and questions heard by the pesticide board. Perhaps that was a strategic decision on someone's part that I just don't get. Perhaps they were thinking that since health impacts and pollution and all that stuff are hard to prove in a direct "cause and effect" way, they are not factual or "material" evidence for a case like this, and so the state's talking about them might open them up to attack from the other side. Maybe that's what they were thinking, but gosh, it seems that evoking all those impacts should have been important to remind the board and everyone present why we have pesticide regulations in the first place, and why it's so important to take them seriously. So many of Ag-Mart's arguments have to do with "slight" non-compliance with the regulations: harvesting six days after spraying, rather than seven as required; applying pesticides not registered for use on tomatoes in NC; possibly spraying on one side of a field when workers are on the other side; etc. Oopsie! Is the state supposed to just waive the fines because the violations weren't so bad?


The regulations are what they are for a reason (and they're not enough as it is, though that's a whole other blog post...), and we must keep perspective on what that reason is: people's health, their very lives, and our environment are all at stake when pesticides are applied unsafely. It is not okay to bend the rules!!

3) The attorneys for Ag-Mart probably didn't realize this, but in the course of their arguments, they did a pretty good job of laying out the case for The Agricultural Families Protection Act (H1818), pending legislation that would close many of the loopholes in NC pesticide law:

Ag-Mart's argument:
* Ag-Mart records are not "inaccurate" - they simply don't keep a record of which worker is where and when, because that information is not particularly important to farmers, and is not required under federal or state laws.
* There is no record of spraying and work locations to draw from - there is only a record of potential or planned spray sites, and potential or planned work sites.
Proposed law change in H1818:
* Require agricultural employers to maintain accurate records of pesticide applications to document compliance with the Worker Protection Standard.

Ag-Mart's argument:
* Many Ag-Mart workers were questioned as to whether they'd been sprayed or asked to enter fields before the required "re-entry interval" had elapsed, and they all said no, that there had been no such violations.
Why that may not mean much:
* Under current laws, workers involved in a state investigation are not kept anonymous - their names appear in public records related to the case.
* Under current laws, workers also have no protection from retaliation if they act as whistleblowers. In other words, if they report their boss to an enforcement agency, or cooperate with an investigation and get their boss in trouble, they have no recourse if their boss subsequently fires them or reduces their pay in retaliation.
* The vast majority of Ag-Mart's employees are undocumented immigrants. Many have low to no literacy, and many do not speak Spanish well - they speak an indigenous Mexican language. All this makes them very vulnerable, and so unlikely to stick their necks out.
Proposed law changes in H1818:
* Add a confidentiality clause that enables agricultural employees to confidentially file a complaint about workplace pesticide safety violations.
* Add the NC Pesticide Law to the list of statutes covered under NC’s anti-retaliation law, to protect workers from retaliation for attempting to comply with the law.

Other changes that would be made if H1818 becomes law:
* Ensure adequate pesticide decontamination facilities by requiring 1 shower head per 8 workers–making the standard equal to NC jail standards.
* Employers should ensure access to a working telephone and emergency medical contact information in every worker housing unit.
* Raise fines from $500 to $2000 maximum per violation for large agricultural employers. Preserve the lower fines for small family farmers.

I believe this case has demonstrated that NC needs the changes H1818 proposes! The Agricultural Families Protection Act would add little additional responsibility for farmers who are already in full compliance with state and federal rules on pesticide use and worker safety. But, it would make it much harder for other agricultural employers to break those rules and get away with it. It would also provide some measure of protection from excessive pesticide exposure and from exploitation for the most vulnerable workers and their families.

If you're concerned about this too, then please take a moment to make your thoughts public. You can write a letter to the editor of one of the papers that covered the story (N&O, Wilmington Star-News, IndyWeek), or to your local paper, expressing your views and hope that we can make our pesticide laws work better. Tips on writing a letter to the editor from the NC Conservation Network.

Want to do more? Be an Ambassador for Just & Sustainable Agriculture this spring! PESTed is working with groups of concerned people all over the state to organize meetings with their representatives in the NC General Assembly this winter and spring - contact us to be a part of it! We're also happy to accept donations to sponsor this effort: gas cards to help us get out to far-away districts and work with concerned citizens on preparing for their meetings, gift cards to purchase food for those people while they're preparing, and straight-up money are all very welcome.

Thank you, and we'll keep on keeping you posted!

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