The tragedy that is North Carolina's pesticide regulatory system

We are running a story on our Home Page that highlights the inadequacies of the pesticide regulatory system in North Carolina. The story contains numerous links to other reports of the problems the State experienced in responding to reports of injuries, including severe birth defects in children of field workers exposed to agricultural pesticides, that have been reported to it.

The State's investigation resulted in Ag-Mart, one of the nation's largest produce growers, being charged with hundreds of violations of the State's existing pesticide regulations. The case dragged on for over five years and the N. C. Pesticide Board recently found that regulators could prove only six violations and reduced the fine to $3000, only a fraction of what the original fine was and nowhere near what the legal costs in the case have been. What all that shows is that it is virtually impossible under the existing regulations to be able to enforce sanctions on violators of the existing rules.

It should also be noted that the existing rules are not only virtually impossible to enforce, but if they could be enforced they are extremely lenient. While that may sound like a subjective, even biased, statement consider this. Current regulations permit a pesticide applicator (a.k.a.: crop-duster) to spray your property without your consent and there is virtually no recourse available to you. It, of course, gets more complicated, but that is the bottom line.

In a recent case in which a school in Beaufort County was sprayed by a crop-duster, the ensuing debate centered not on whether regulations were adequate to keep a crop duster from spraying the school, but rather how much pesticide he could pump onto the school before he violated the regulations. And of all the absurdities that case illustrated, the fact that the State is not authorized to test for pesticides inside a school--only on the grounds outside--is but one more example of the ridiculous inadequacy of the current regulations.

So when the Beaufort County Commissioners were considering the adoption of an ordinance ostensibly meant to protect farmland from urban development it was suggested to the Commissioners that they address this issue of protecting schools, hospitals, nursing homes, etc. from being sprayed. Led by Robert Cayton, reportedly a member of the Beaufort Farm Bureau, the Beaufort Commissioners rejected such protection of our school. Only Hood Richardson and Stan Deatherage voted to do so.

The regulations developed for the "Voluntary Ag Districts" illustrate the insidiousness of this issue. The original idea was that Ag Districts would help preserve farmland from being developed. But deep inside the fine print was a stipulation that if a famer sprays his land within the Ag. District and "drift" gets deposited on a neighbor's land, home or even into a school or nursing home the Ag. District rules in effect granted immunity because they specifically "forewarn" neighbors that such activity is acceptable within the district.

And in testimony before the Pesticide Board an aerial applicator testified that "it is virtually impossible to spray a field without 'drift' going 'off target'."

What was suggested to the Beaufort Commissioners was a simple solution. Before anyone can spray their land in such a fashion that "drift" dumps pesticides on neighbors they would have to get the neighbor to agree it was ok. Failure to obtain such releases would make the sprayer (not the farmer) strictly liable for the unacceptable deposits and they would have to clean it up.

Unbelievably the N. C. and Beaufort County Farm Bureau opposed the suggestion. Even a member of the Beaufort School Board (Mac Hodges) joined in with the local Farm Bureau to oppose a provision that if someone in an Ag. District sprayed near a school that they would have to notify the principal in advance and the school would have to notify the parents so they could keep their children from being present when the spraying took place. The Farm Bureau argued that such notice was too much trouble and it would be too expensive to clean the school if it was accidentally sprayed!

But further investigation revealed why the Farm Bureau lobby was so intent on killing the suggestion for Beaufort. They feared other local communities would seek to regulated pesticide use.

The Farm Bureau argued that counties should not be able to regulate pesticide use; that only the State can do that. The reason they want only the State doing it is that the existing regulatory system is heavily dominated by the agricultural chemical industry. They control it. Just look at the membership of the N. C. Pesticide Board. And consider that the major "study" they used to justify their regulatory scheme was produced by a scientist who himself received funding from the industry.

So here's the game. The agricultural chemical industry has lobbied to secure lenient pesticide rules that are virtually unenforceable. The Ag-Mart case proves that. Then they establish the legal precedent that damages done by spraying people cannot a be assessed against the perpetrator unless the victim can prove the spraying actually caused the injury. That, of course, is virtually impossible to do. Many parents don't even know their children have been exposed to harmful substances at a school that has been sprayed. And obviously the injury may not be obvious at the time it takes place. But if you've ever had an asthmatic child wake up in the middle of the night unable to breath you know the horrors of respiratory problems, not to mention the birth defects as seen in the Ag-Mart case.

The alternative to the current ineffective system is something the lawyers call "strict liability." Strict liability, as opposed to negligence tort liability, says that: "Here's what you can and cannot do, and if you do something other than what is permitted, simply committing the violation makes you liable." For example, strict liability--as proposed to the Beaufort County Commissioners--would say: "You can't spray in such a way that it ends up on/in a school and if you do you have to clean it up." Just that simple. But the Beaufort County Farm Bureau fought that to the point of bringing its high-priced lobbyists from Raleigh to argue against it. Their argument: Existing state regulations are sufficient. Obviously the Ag-Mart parents of those children born without arms and legs don't agree. And one might suspect that a $3000 fine against Ag-Mart, or any other huge corporate producer, is simply seen as a "cost of doing business."