Ag-Mart: The end of a long, sad story

A long, disappointing episode came to a close today as the NC Pesticide Board accepted a final settlement agreement in the Ag-Mart case that has dragged on for more than five years. In 2005 the state found hundreds of pesticide safety violations in what would become the Department of Agriculture’s largest enforcement case ever.

Three families alleged that their children’s birth defects were related to pesticide exposure that pregnant workers experienced while working for Ag-Mart on tomato farms in Florida and North Carolina. One of the children died, and another, Carlitos (pictured at right), became a symbol of this case through stirring photography and reporting in the Raleigh News & Observer and Palm Beach Post. An investigation by the NC Division of Public Health could not prove whether the pesticide exposures to pregnant workers caused the birth defects, but found that they were almost certainly a contributing factor.

Today’s settlement covered six points. The state’s attorney provided an overview based on what the state gets out of the agreement, and what Ag-Mart gets. What the state gets:

• Ag-Mart agrees to dismiss their appeal of the Pesticide Board’s ruling against them.
• Ag-Mart will pay a $25,000 settlement – that’s $24,000 for this case, and another $1,000 to settle a separate case of pesticide misuse from 2006 that was never heard by the Pesticide Board.
• Ag-Mart will conduct a pesticide education program for North Carolina farmworkers during the 2011 and 2012 growing season.

What Ag-Mart gets:

• The Pesticide Board will make a public statement to the effect that there have been no pesticide violations found on Ag-Mart’s North Carolina farms since 2006, and that Jeffrey Oxley and Ag-Mart are free of any negligence or liability in this case.

• Ag-Mart’s employee, Jeffrey Oxley, will get to keep his pesticide license, with a 6-month probationary period.
• The Pesticide Board will amend its ruling so that all violations that were found to be “willful” violations of pesticide rules are now classified as “non-specified.”

All in all, this appears to be a much better deal for Ag-Mart than it is for the state, or for Ag-Mart’s employees. The settlement sends an unfortunate message that the state ultimately will not hold anyone responsible when a preventable pesticide incident has the potential to cause irreparable harm farmworkers and their families. How much worse would a case have to be in order to make the charges stick?

It is understandable that the state wanted to finally settle this case, but the settlement terms seem to be much more about rehabilitating Ag-Mart’s public image than protecting worker health and safety. A 2008 Governor’s Pesticide Task Force examined pesticide health and safety requirements in the aftermath of this case. Some regulations were tightened up around the margins, but larger reforms were rejected, and the funding for educational programs that resulted have all been cut since then in the state’s budget crisis.

One huge question remains unanswered: What is Ag-Mart going to do, and what is the state going to do, to make sure that something like this never happens again in our state? The Pesticide Board’s silence on this question today was deafening.

Update 6/19/10: Take action: write to the pesticide board.

Opposing modest improvements for farmworkers

NC Policy Watch has an excellent article today about the NC Department of Agriculture's efforts to block the legislation to better protect farm workers from pesticides.

This dynamic of inaction at the NC Department of Agriculture has been a problem throughout the Ag-Mart case and ensuing efforts at reform. Too bad we can't legislate compassion.

Ag-Mart receives a slap on the wrist in worker endangerment case

The North Carolina Pesticide Board has completed their deliberation on the case against Ag-Mart, the tomato company accused of the largest pesticide violations case in state history.

More than 200 charges of worker endangerment were at issue in the case. On Thursday, 2/19, The Pesticide Board found Ag-Mart guilty of just six charges of sending workers back into fields before the “re-entry interval” (REI) had expired, for a total fine of just $3,000. The hundreds of charges originally filed against Ag-Mart first came to light in 2005 when three babies with severe birth defects were born to Ag-Mart workers who worked in tomato fields in North Carolina and Florida during their pregnancies.

Get the full details from the Raleigh News & Observer's article.

The $3,000 fine highlights just how low the penalties are for cases of worker endangerment, and how difficult such charges are to prove. The state does not require pesticide applicators to keep records of compliance with the re-entry intervals that are designed to protect workers from hazardous pesticide residues in the field. Without these records, there was no documentation to corroborate the charges brought by state investigators resulting from Ag-Mart’s spray tickets and worker testimony.

The Pesticide Board’s judgment underscores two very serious shortcomings in North Carolina’s pesticide laws and regulations:

1. At just $500 per violation, fines for companies who violate the state’s pesticide regulations are far too low. In a case where workers were put directly in harm’s way, a $3,000 total fine is a pittance, and a shameful conclusion to a case with such serious consequences.
2. North Carolina needs a robust record-keeping requirement in order to be able to enforce its worker protection standards. Without clear records, it is next to impossible to know whether or not growers comply with the law.

Unless the NC General Assembly and the NC Pesticide Board correct these critical problems, bad actors have no incentive to comply with North Carolina’s pesticide laws and regulations that are intended to protect workers and the public. Ag-Mart has shown just how flimsy those laws can be.

Toxic Free NC will be fighting hard this year, together with our allies in the Farmworker Advocacy Network, to win this campaign so that another Ag-Mart case will never be repeated in North Carolina. Donate now to support this fight.


More background

In 2008 the NC Pesticide Board found Ag-Mart in violation of 42 counts of improper pesticide use, such as improperly mixing pesticides, and using pesticides that were not labeled for use in North Carolina. The Board fined Ag-Mart $21,000 for those violations, and revoked the farm manager’s pesticide license as a result.

Ag-Mart is also facing close to a million dollars in fines for hundreds of new charges of pesticide misuse and worker endangerment in New Jersey. In addition, the company has already paid out a civil settlement to workers who contend that pesticide misuse led to the severe birth defects in their son, who was born with no arms or legs after both his parents worked in Ag-Mart fields in North Carolina. The amount of the settlement is undisclosed, but it is believed to be in the millions.

by Fawn Pattison

Ag-Mart workers take the stand

On Wednesday two former Ag-Mart employees finally took the stand in the state's protracted enforcement case against the company accused of hundreds of violations in the largest pesticide case in North Carolina history.


News & Observer photo

Francisca Herrera and Abraham Candelario are the parents of Carlitos Candelario, the little boy whose birth defects stunned the state and tipped investigators off to a pattern of problems. Since the state began investigating the case in 2006, there have been dozens of court hearings, task force meetings, legislative hearings, and many other opportunities for attorneys and "experts" to debate the merits of the state's case, but until yesterday none of the affected workers had been heard. From the Raleigh News & Observer:

Herrera, 22, said she was often told to work in fields that were still wet with pesticides. She said her supervisors ignored her complaints of frequent headaches and stomach pains. "The boss would always be scolding us and telling us that we came to this country to work, not to rest," she said in Spanish. (Source: Raleigh News & Observer article)

Whatever the relative strengths and weaknesses of the state's case against the tomato giant, it was gratifying to finally hear from those whom the case actually affected. Carlitos stayed quiet for two days in the hearing room as his parents waited for their turn to testify. But as his mother took the stand, he cried at being separated from her, and his audible wails outside the hearing room underscored his presence in the hearing.

The Ag-Mart case, at its core, is not about re-entry interval violations, record-keeping requirements, or worker intimidation. It's about what can happen when we use, misuse, or misunderstand the use of toxic chemicals, whether to grow our food, change our environments, or manufacture the consumer products we use every day. With or without negligence, with or without malfeasance, toxic chemicals get into our bodies, and sometimes cause irreperable harm. Whether or not the state collects its $100,000 from Ag-Mart, we need to be looking much harder at the trade-offs we're willing to make for a cheap food supply.

A challenging victory

This week the NC Legislature passed a small but important piece of legislation to improve the lives of farmworkers who work in North Carolina's fields.

S 847, "Prevent Agricultural Pesticide Exposure," will not prevent agricultural pesticide exposure. However, it will grant a very basic form of workplace dignity to farmworkers: the right to report safety problems on the job without the threat of being fired, demoted or otherwise punished for doing so. Farmworkers who are punished for reporting pesticide safety concerns will have the right to file a complaint with the NC Department of Labor under REDA, the Retaliatory Employment Discrimination Act, and to win their job or lost wages back.

This legislation also directs the NC Pesticide Board to create new rules that improve how agricultural employers keep records when they use pesticides and workers are present. This step is intended to make enforcement of violations easier for the NC Department of Agriculture, and to eliminate the "he-said-she-said" nature of their enforcement cases now.

This is important legislation, and those who worked to pass it should be proud (particularly Rep. Dan Blue, Sen. Charlie Albertson, Health Director Leah Devlin and Governor Easley). But they also shouldn't be lulled into thinking that farmworkers and their families are now safe from harmful exposure to pesticides, or that a disastrous incident like what has been alleged in the Ag-Mart case couldn't happen again.

Toxic Free NC and our allies in the Farmworker Advocacy Network (FAN) have spent years researching workplace pesticide exposure, talking with farmworkers about their experiences, and examining programs in other states. Only one of our long list of recommendations - retaliation protection - made it into S 847 (read more about FAN's recommendations here).

One of the greatest challenges that we face in advocating for and with farmworkers is actually the democratic process, which is designed to ensure that every citizen gets a vote and a voice. Unfortunately, most of the people who labor to plant, tend and harvest our food in the United States are not citizens, and don't get a vote -- or a voice. No elected official in NC is accountable to farmworkers, except perhaps in a moral sense.

Elected officials don't have to listen to farmworkers - even if they could speak to them - but they do have to listen to their constituents, and they especially listen to the lobby groups and business interests - like the Farm Bureau - who are constantly in their offices demanding specific outcomes.

Many, many citizens joined Toxic Free NC and our FAN partners in advocating for worker protection, both before and during the legislative session. Despite all that, we did not get the best possible legislation for farmworkers. We got the best possible legislation in an environment dominated by business interests.

In the future, we can work harder, we can speak louder, and we can recruit more citizens to call on the moral values of our elected officials. We should and we must continue to work for a just and sustainable future for our state, its workers and its residents. To do that, we must also work for the restoration of integrity to our democratic process, to diminish the power of private profit to act as gatekeeper for our health and safety.

What you can do:

• Check out Democracy NC's work to clean up politics in NC
• Know your legislators
• Sign up to volunteer or to get action alerts about issues like this one
• Make a contribution to support our work
• Invite Toxic Free NC or one of our FAN partners to come speak at your school, church or community group.

Pesticide Task Force punts on the tough issues

A Task Force convened earlier this year by Governor Mike Easley to address pesticide exposure hazards in agriculture has sent its recommendations to the Governor (read the press release). The report contains some good ideas and some welcome changes, to be sure, but misses the chance to bring much-needed basic workplace protections to farmworkers who face the threat of pesticide exposure on the job.

Within the report's recommendations you'll find budget requests for several of the agencies that were represented on the Task Force, ideas for the expansion of many voluntary and educational programs, and very little reform. Only one of the recommendations brought by farmworker advocates, a provision that would outlaw retaliation against workers who report workplace safety problems, was adopted by the Task Force.

The Task Force faced several challenges in its structure, including the absence of any farmworker representatives. Because the recommendations were made by consensus, any Task Force member was able to prevent recommendations from going forward. One Task Force member in particular, Commissioner of Agriculture Steve Troxler, was extremely effective in preventing the Task Force from taking up several of the reform measures they discussed.

There were some key issues exposed by the Ag-Mart case that the Task Force chose to put off for future study:

• Keep workers' names confidential when they report workplace safety problems.
• Require growers to keep records of compliance with Worker Protection Standards by recording when workers are sent back into the fields after spraying.
  
• Increase minimal pesticide fines and remove the standard of "willful" violations.

Panelists also recommended solutions including: require crop-specific pesticide safety training; redesign pesticide labels and ensure that they are also provided in Spanish; encourage the use of organic farming, Integrated Pest Management and less-toxic alternatives; improve regulations of pesticide drift; require adequate showers and telephones in employer-provided farmworker housing; screen workers regularly for health impacts; increase the number of bilingual pesticide inspectors, and many others. None of these were mentioned in the final report to the Governor.

Whether Governor Easley and the NC Legislature can look beyond the limitations of this report remains to be seen. But they will have to if they intend to fix the problems that Ag-Mart has so painfully pointed out.

You can download the report (PDF, 232 KB) by clicking this link.

The case against Ag-Mart marches forward

The NC Department of Agriculture's case against giant tomato grower Ag-Mart took another step forward at today's NC Pesticide Board meeting. The Board ordered Ag-Mart to pay $21,000 in fines, and revoked the pesticide license of Jeffrey Oxley, the Ag-Mart employee named in the case.

The Board also decided that an Administrative Law Judge had been hasty in tossing out hundreds of charges of endangering workers by allowing them back into the freshly-sprayed fields before protective "re-entry intervals" had expired. The Pesticide Board wants to hear the evidence on those 201 charges, and will hold hearings this summer. In the mean time, it's very likely that the Department of Agriculture will be looking for Ag-Mart workers (or former workers) who can testify in the case.

It's about time the workers' stories are brought to bear in this case. It is amazing that in a case that came to investigators' attention because of the tragic injuries to workers' families, their stories have never been heard. But Ag-Mart's legal counsel will work hard to limit the introduction of "new evidence" -- like workers' statements -- into the record.

Whether the truth will ever come to light, and whether the state's case will withstand the lengthy appeals process that it seems likely to endure, is anybody's guess.

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?

No!!

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!

Legislative committee gets an earful on farmworkers

This week the Agribusiness Committee of the NC House of Representatives heard a bill that is intended make it easier for the state to enforce its pesticide laws in major cases. The Agricultural Family Protection Act, H 1818, was filed by Reps Dan Blue (D-Wake) and Grier Martin (D-Wake) in response to the loopholes in NC's pesticide law exposed by the Ag-Mart case.

The committee did not take a vote, but it heard testimony from many supporters of the bill, representing health and worker advocates, as well as opposition from some in agribusiness.

Steve Davis, a clinic outreach worker from Greene County Health Care, described some of the pesticide injuries he has seen among workers and talked about the importance of adequate showers for workers to decontaminate.

Stephanie Triantafillou of the Farmworker Advocacy Network told the committee that although she works in direct services to farmworkers and their children, her agency can not in good conscience recommend to their clients that they report pesticide problems on the job, because the lack of confidentiality and retaliation protection puts the workers' jobs and housing at risk.

Lawmakers also heard from the NC Farm Bureau and the Agricultural Alliance of NC, who stated that the points in the bill were unnecessary because of existing standards.

The Farmworker Advocacy Network (of which PESTed is a member) has outlined the gaps in NC's laws that gave rise to the proposed legislation:

• NC’s Pesticide Law contains loopholes wherein agricultural employers are not required to keep accurate records documenting their compliance with Worker Protection Standards. While they do have to keep specific information about pesticide spraying for 30 days, that information is not available to the NC Department of Agriculture for inspection and enforcement the way that other pesticide records are.
• Many agricultural workers live in housing that lacks telephones, making it impossible to seek emergency assistance in the case of pesticide poisoning. Many of these units also lack adequate shower facilities to wash off pesticide residues after work or immediately after an exposure. The current standard is 10 workers to a shower, which can mean long lines and increased exposure at the end of the work day.
• Agricultural workers are unable to file confidential complaints to the NCDA regarding workplace pesticide safety, and may be subject to retaliation for such complaints because they are not covered by NC's anti-retaliation law.
• Growers who violate NC pesticide laws pay only $500 per violation in fines, while other violators pay $2,000 per violation. The bill would make the cap $2,000 for everyone, and would explicitly give the NCDA authority to asses lower fines for family farmers.

The flimsy record-keeping provisions have allowed Ag-Mart to argue their way out of the largest pesticide violations case in NC history. Final judgment in that case has not yet been made, however, a judge's December 2006 ruling on the relevant parts of the case make a compelling argument to the legislature for real record-keeping requirements.

The committee chairman, Rep. Bill Faison (D-Orange), stated that he expects the committee to take up this issue during the 2008 short session. Until then, it's business as usual for farmworkers who use pesticides on the job in North Carolina. But you don't hear them complaining, do you?