New Times December 23-29, 1987 The Front Page
Overexposed and Underprotected
The regulation of pesticides in urban areas has become a bad joke, but one Glendale resident is determined to fight for her rights
By Kathleen Stanton
“This is the place, “ Debbie McQueen thought when she moved into the home on West Tuckey Lane four years ago. “This is where we’re going to raise our children.”
Looking back, it seems but a moment elapsed between that feeling of satisfaction and the first sensation of the malaise creeping over her neighborhood.
“Everyone is the neighborhood began to get sick at the same time in April,” McQueen says. All the neighbors noticed it, but when someone mentioned pesticides, “we all laughed,” she says. “It was just a joke.”
None of them are laughing now. Not since the hot morning last August when McQueen and two other neighbors saw a cropduster pause behind their homes and discharge a strong-smelling chemical. A chemical they suspect caused convulsions, severe diarrhea, skin ulcerations and other health problems among themselves, their children and pets.
Going by the sheer number of people complaining, McQueen neighborhood has become the hottest spot on a map peppered with hot spots where sprawling urban development is colliding with the state’s agriculture industry. But in the peculiar arithmetic practiced by state pesticide regulators, those numbers don’t add up to much.
That’s what McQueen, who remembers lifting her two young sons in her arms to watch the hovering helicopter, found out. As have families up and down her street, located in a new stucco-and-tile subdivision that sweeps past fields still cultivated for carrots, sorghum and other cash crops in southwest Glendale.
“Within three days [of the spraying} my older boy, who had gone outside soon afterward, began having convulsions, with profuse sweating, chest congestion and glazed eyes,” McQueen recounts. “Both boys developed ulcers inside their nostrils. And our two dogs, who live in the backyard, became very ill with the same symptoms, seizures and open sores on their skin.”
The first seizure came at a night, and McQueen says it was unforgettable. Jason McQueen, a sturdy blond five-year-old, became rigid, his eyes glazed. His body started twitching violently and saliva bubbled from the corners of his mouth. Then he started screaming.
“You can’t imagine what it was like, trying to hold him and not knowing what was happening to him,” McQueen says. He continued to suffer seizures regularly for at least a month afterward, and tests by a neurologist ruled out conventional neurological disorders as a cause.
Down the street, four-year-old Joseph Gonzales had developed severe diarrhea shortly after the helicopter’s appearance last August 27. The diarrhea continued for six week s afterward, according to his mother Elizabeth, as the boy’s weight dwindled.
It was not the first time that Joseph had become ill following a pesticide application to neighboring fields. In fact, Elizabeth Gonzales states in a written complaint to the state Commission of Agriculture and Horticulture, the family’s history of illness closely parallels pesticide applications since they moved to the neighborhood six months ago. During one application last May family members who were outside actually felt mist on their faces, causing intense itching, eye irritation and chest congestion, she says.
Records on file with the commission show that at least half a dozen other families in the neighborhood have reported similar symptoms, also linked to the time they saw the nimble Bell Jet Ranger with the brown and orange stripes spraying chemicals over the adjoining field.
Under the state Environmental Quality Act of 1986, the public’s involuntary exposure to pesticides was supposed to cease. There is supposed to be recourse for people when such incidents do occur. They can file a complaint with the state agriculture commission, which is given authority by the Act to regulate agricultural pesticide use. A prompt investigation must be conducted and wrongdoers, depending on the gravity of their violations, are subject to heavy fines and even jail sentences. The law says.
It’s not working that way.
Top state official have already assured Marsh Aviation Company, which owns the helicopter, that they don’t believe “anything improper” occurred, based on the pilot’s denial that he made an application near McQueen’s home August 27. Despite three eyewitness accounts contradicting that denial, the state failed to take residue samples in the area. Without that vital physical evidence, it is impossible to prove the most serious of the residents’ allegations – that the cropduster allowed pesticide to drift onto their homes where it caused serious illness.
Those same top officials have produced a set of pesticide regulations that subvert key provisions of the EQA, including a provision to increase control over pesticide applications near residential areas. The regulations, together with the state’s response to spraying incidents like the one McQueen reported, have made pesticide reform under the EQA a bad joke.
The big mistake, according to environmental activist Pamela Swift, was turning over pesticide regulation to the agriculture commission, a sleepy collection of old-timers with strong ties to the farm lobby. The aggies, however, refused to support the EQA unless pesticide regulation remained with an agency they consider “friendly.” In response, public-interest groups insisted on a series of oversight measures, some of them unprecedented, in the law.
But records and statements of key officials indicate that oversight has been effectively scuttled, if not by politics, then by sheer indifference. A new legislative session is just around the corner but no one seems inclined to tamper with the status quo – no matter how many people say the law’s just not working.
McQueen, the 29-year-old wife of a corporate sales representative, has a direct, no-nonsense way of presenting her facts. It compels the attention – and the respect – of most listeners, including legislator and state health officials to whom she told her story.
Last October 30, she was among a dozen or so people who testified before the joint legislative committee on pesticide oversight. Commission director Ivan J. “Tiny” Shields had already presented his report when McQueen took the podium, facing a semicircle of craggy rural legislators. It was not a particularly sympathetic audience – indeed most of the committee members make their living through farming or ranching – and some were clearly grumpy from listening to people complain about pesticides.
What McQueen had to say, however, did more than deepen their scowls. Speaking in a flat Midwestern drawl, she methodically presented information that undermined the credibility of Shield’s statistics on citizen complaints, challenged the objectivity of commission officials, and raised questions about their commitment to investigate cases such as hers.
McQueen told legislators that while Shields reported there had been just ten health-related complaints in the past year, she had counted more than twice that many while thumbing through the complaint log at commission headquarters. Nor, it appears, is the complaint log complete. Commission records show that at least four other people in McQueen’s neighborhood submitted written complaints about the August 27 incident, but the log shows just one complaint – hers.
The reason for the discrepancy, Shields counters, is that the commission categorizes complaints by what is first on the caller’s list. “We assume people mention the main thing first, so if they complaint about smell we put it under ‘odor’ even though the might also have mentioned drift or health effects,” he says. “We’re just trying not to present confusing statistics.”
State Representative Larry Hawke of Tucson, a committee member and key sponsor of the EDQ, calls Shields’ explanation “pretty weak – quite weak, in fact.”
Even more people from her neighborhood would have filed complaints, McQueen says, except for the attitude of Chris Rice, the commission inspector who handled the investigation. “He told me there had been no application in our neighborhood that day because there was no [record] of it,” she told the legislators. “He also told me that I should call the state health department because, he said,’ in actuality I am working for the farmers and [state health investigator] Don Selvey is working for you.’”
Rice contends that McQueen misunderstood his effort to explain the distinction between enforcing pesticide regulations – his job – and evaluating health complaints, which is done by the Arizona Department of health Services’ (DHS) office of risk assessment.
It wasn’t the only instance of pro-industry bias, McQueen asserts. She quotes Les Davis, director of the commission’s division of agricultural chemicals and environmental services, as saying, “I have no reason to believe a helicopter was discharging behind your home [August 27, 1987], as, to date, no [application records] is on file.
“I’m telling you as a friend, if you pursue this matter, Marsh Aviation will slap a slander suit on you.”
Marsh manager Elsie Humphreys says her company is considering no such legal action, and Davis denies ever offering such a warning. (The act contains strong language prohibiting the intimidation of people who file pesticide complaints.) “I deny that completely: I don’t say things like that,” Davis insists. But the remark was overheard by a third party, Melody Baker of Phoenix, who corroborates McQueen’s account and says it came on the heels of a telephone conversation between Davis and Humphreys. During the conversation, Davis told Humphreys he had no reason to believe anything illegal had occurred, the women say.
Davis does acknowledge doubting McQueen. “Marsh has always been real good about filing [records],” he says. Cropdusters are required to record specific information about each application they are hired to make and to provide copies to the commission, which receives about 30,000 such records each year.
Humphreys maintains that Marsh did not make an application near McQueen’s home on August 27, although one had been scheduled. The pilot’s record shows an application was made there the following day, but Humphreys denies that Marsh had anything to do with the discharge that prompted the neighborhood flare-up. “The pilots sometimes fly over an area to scout for hazards before making an application, so he may have there on the 27th but he definitely didn’t make an application that day,” Humphreys insists.
Rice, the commission inspector assigned to the McQueen case, won’t comment while his investigation is still open. But his actions reflect little faith in the residents’ assertion that Marsh was there, discharging something, on the 27th, not the 28th.
Perhaps most damaging to a potential enforcement case was Rice’s failure to test soil, vegetation or residents’ property for pesticide residues. He declines to discuss the matter while the case is still under investigation. Such evidence is critical to demonstrate that the strong odor that filled McQueen’s house was, in fact, pesticide drifting off target. Without proof that drift occurred, it is almost impossible to prove a connection with health effects.
And under the commission’s new regulations, only by demonstrating a serious health threat can the state seek the maximum civil penalty, a $10,000 fine per violation, or bring felony charges under the Act’s criminal provisions.
The absence of such important evidence is particularly frustrating because DHS investigator Don Selvey says that some of the symptoms experienced by Jason McQueen and others in the neighborhood area are consistent with chronic exposure to Pydrin, which Marsh admits applying on the fields near McQueen’s home on August 28.
Rice not only failed to collect potential crucial physical evidence, he also supplied misinformation to Selvey. The two agencies are supposed to work together on pesticide investigations involving health complaints, but Selvey say that when he asked Rice for Marsh Aviation’s August 27 application records, Rice to him there were none and failed to mention the dispute over Marsh’s application record for the 28th.
“I do get the feeling that [the commission] believes that no application occurred,” says Selvey, an epidemiologist in the DHS risk assessment office. “Frankly I’m not among those who believe that if there is no record there was no application.”
The absence, or inaccuracy, of a record to document an application is itself a violation of commission regulations. That the commission would draw important conclusions from incomplete information bothers Hawke, who was closely involved in drafting pesticide portions of the Act. “What does the commission mean? If there’s no record there’s been no application, ipso facto? That doesn’t make sense,” Hawke says.
THE FUNDAMENAL FACT OF LIFE within the agriculture commission, says former pesticide inspector Cynthia Wood, is a deep loyalty to the agricultural industry. “The commission was chartered before Arizona became a state and was chartered to promote agriculture. Five of its six members are industry people and the sixth, the public’s representative, was a long-time farmer before his retirement,” she explains. “It’s contradictory with the mandate to regulate pesticide use.”
The clock turns back as one enters the Spanish Revival building at 1688 West Adams, one of the oldest buildings at the Arizona State Capitol, where the commission is headquartered. Silver-haired gents in bola tie mosey between offices, speaking in a distinctive rural accent that has all but disappeared elsewhere in Phoenix. The pesticide inspectors, mostly young men in their first government job, are guarded and silent around outsiders.
Commission director Ivan J. “Tiny” Shield dominates the office physically and philosophically. He holds a Ph.D. in entomology and is rooted in Arizona’s agricultural development. He’s been advising farmers since 1952, when he became a county extension agent, and served as director of the University of Arizona cooperative extension service office in Maricopa County for twenty years before becoming commission director in 1982.
Shields did not participate in drafting the pesticide provisions of the EQA, but he has presided over their implementation. Public-interest advocates say the result is a complete disregard of the public’s right not to suffer unwilling pesticide exposure.
“Shields has made it quite clear that his job is to protect the industry, and a lot of the problems you’re hearing about today relate to that and the fact [the commission] is not really very experienced with pesticide regulation,” says Michael Gregory, the Sierra Club’s pesticide specialist in Arizona.
Shields asserts that “pesticide regulation in California and Arizona is miles ahead of other states in strictness.”
But Wood agrees with the commission’s critics. She worked for the commission nearly eight years and is the only pesticide inspector ever to receive a merit commendation from the Board of Pesticide Control for her enforcement work. Wood continued as an inspector for eight months after the commission took over pesticide regulation from the board, a semi-autonomous arm of the commission that was disbanded by the EQA in August 1986. She resigned to become a hazardous-materials specialist with the Arizona Department of Transportation.
Based on that experience, she says pesticide regulation has not improved with the change. Turnover among inspectors continues to be high, she says, “and I don’t think there’s any greater effort on investigations.”
Davis and Shields say the number of citizen complaints is dwindling steadily, and that it reflects increased cooperation from cropdusters. They acknowledge that they have yet to seek an injunction or criminal prosecution, or even cite someone for a serious civil violation, all increased enforcement provisions under the new law.
Indeed, no enforcement case has even gone before a hearing officer. They’ve all been settled by agreement with the violators. But that, contends Davis, is because the violators know they can’t win. “With our present investigation techniques, when the decision is made to [cite] a violation we have no trouble reaching a settlement that the attorneys will back because they know we’ve built the case,” he says.
Just how real are the complaint statistics? Besides Debbie McQueen’s testimony challenging their accuracy, several citizens at the oversight hearing charged that inspectors discouraged them from pressing their complaints.
David contends his inspectors do not discourage people from making complaints but Wood disputes his account. “[Commission officials] don’t want to log things in because, under the law, the attorney general has to review the disposition of each citizen complaint,” she says. “At one point, Les didn’t want [citizen complaints] to be logged in until they were substantiated in in some way.”
Davis denies there was ever such a policy. “We do not discourage people; that’s what we’re her for, “he asserts.
While enforcement is primarily a story of what the commission hasn’t done, it’s equally important to look closely at what it has done. The commission’s development of rules to implement the Act – rules that gut the Act, according to critics – marked the disintegration of the carefully structured deal that allowed both farm lobbyists and the public interest advocates to support the law.
In fact, th commission has interpreted the law so narrowly that some parts, including key provision to protect the public, many never see any use. Under the EQA, for instance, the main protection for Debbie McQueen’s neighborhood is to designate it a pesticide management area (PMA).
Cropdusters operating in PMAs must give advance notice before applying any pesticide on a list drawn up by the commission. The intent is to allow inspectors to closely monitor pesticide applications in such areas. “Monitoring is unquestionably the best enforcement tool we have,” says Wood.
McQueen submitted such a request, signed by 21 neighbors, in September. But, she says, “Les Davis says we may not meet the qualifications because he didn’t think they were using highly toxic chemicals out here.” Under the commission’s new regulations, an area must meet all of the following criteria in order to qualify for protection: The property must be within on-quarter mile for the field to be treated; the pesticide must be applied by air; the pesticide must be highly toxic or odoriferous, a category that now includes less than thirty brand names; and at least 5 percent of the residences in a neighborhood must file complaints w/the commission.
Asked to predict how many neighborhoods will qualify for protection under those criteria, Wood forms a zero with her hand. “Residents will really have to organize in order to meet the 5 percent requirement, and it will be hard to determine what constitutes 5 percent,” she says.
“The pesticide requirement,” Wood adds, “fails to recognize that other materials [than those on the list] can be very dangerous.” The pesticide chlordimeform, for example, is subject to some of the strictest handling requirements in existence because it is a virulent carcinogen – but it is not in the “highly toxic” or “odoriferous” categories.
Davis contends that the pesticide requirement is there because the law requires it. “It’s in the law and we have to abide by it,” he says.
But the law says nothing of the sort. The law requires cropdusters to notify the commission in advance before applying certain pesticides in a PMA, but the law doesn’t limit that list to highly toxic or oderiferous ones. It says the list must include highly toxic, odoriferous, “and other pesticides with similar odoriferous characteristics, or otherwise appropriate for inclusion and shall include in that list paraquat.”
Why should the commission want to deter the establishment of PMAs, possibly the most painless way to reduce the friction between homeowners and farmers? For one thing, the powerful Arizona Farm Bureau Federation has misgivings about them.
“I know it sounds good, and we supported [the PMA provision of the law], but it’s not the total answer to using pesticides in an urban area,” says Jim Klinger, lobbyist for the Farm Bureau. “It creates a new management problem for the farmer because pest infestations can explode overnight. Sometimes there is not time to provide 24-hour advance notice.”
Klinker acknowledges that the law “has some wiggle room” in the notification requirement, but worries that farmers in PMAs nevertheless may face legal liability if the fail to meet it.
Wood says the commission’s motive for gutting the PMA provision flows from its basic vision of purpose. As an inspector, she says, she saw plenty of evidence that top commission officials consider monitoring pesticide applications a waste of time, time better spent helping farmers grow crops.
Debbie McQueen did not stop with the agriculture commission. When she realized the commission was bungling her investigation, and that its regulations might preclude even the limited protection of a PMA, McQueen sought help elsewhere.
She wrote Senators Dennis DeConcini and John McCain. She filed separate complaints with the state Department of Environmental Quality, the state Attorney General and the Environmental Protection Agency. And she testified before the legislative oversight committee. She even wrote Nancy Reagan.
But part of the reason the law is failing is that the oversight mechanisms are failing as well. Despite the fact that agricultural pesticides account for the single most significant exposure to industrial toxins that most Arizonans face, their regulation is far down the list of priorities for agencies such as the EPA and the state attorney general.
“Only if we find fairly major problems with a state’s program can we even consider taking jurisdiction [for pesticide regulation], “says Nancy Frost, chief of the EPA’s pesticide section in San Francisco. She and other EPA officials say they are satisfied with the commission’s performance and professed only vague awareness of public dissatisfaction with it.
The state’s chief executive has broad general powers to intervene in such matters, but apparently pesticide regulation is not a priority for Governor Evan Mecham. In early June, a coalition of 27 groups, representing outdoor sports groups, environmentalists and farmworkers, sought Mecham’s intervention to strengthen the commission’s proposed regulations. All they got was the brush-off.
Former Mecham aide Sam Steiger met with leaders of the coalition. But as Shields recalls it, Steiger stopped him briefly during an unrelated meeting and simply mentioned the coalition’s visit. “I never heard anything more from him about it,” Shields says. “The whole thing took no more than a minute or two.”
The Act also established a legislative oversight committee to monitor agency performance and identify weak spots in the law. Given its make-up and early indications, no one seriously expects the legislative committee to recommend any but minor changes, least of all the Act’s authors.
To begin with, Republican legislative leaders such as House Speaker Joe Lane, a Wilcox rancher, stacked the committee with rural legislators. At least half of those on the committee are ranchers or farmers, or are directly dependent on agriculture for their livelihoods.
Hawke, the Act’s key sponsor, says he was not even offered a position. “I put myself on it – I had to ask to be on it,” he says.
Lane appointed state representative Jim Hartdegen, a Casa Grande conservative who seldom masks his disdain for government – and especially federal regulation, as the House Co-chair. Flanked by dour colleagues, Hardegen kept the parade of pesticide critics off-balance and irritated with facetious questions. He interrupted testimony about health effects from pesticides to muse, “Does anyone know how many people are killed by coyotes each year. I’d really like to know that.”
In an interview later, Hartedegen turned serious. “I think these people are telling the truth. They shouldn’t have to wait months to find out what’s put on the fields that’s making them sick.
“I would like to sit down with the other drafters [of the Act], not in an adversarial way, and look at what the agriculture commission is doing,” he says.
But the fixes he and other legislator are talking about are minor. “I’m afraid it’s still too early to try and make major changes in the Act,” Hartdegen says. “The trouble is if you go back in and open it up, the aggies will get in there and there’s no telling what will happen.”
In addition to legislative oversight, the Act also requires the state attorney general to review the commission’s response to each citizen complaint it receives – an unprecedented requirement in state law.
Farm lobbyist Jim Klinker describes the attorney general provision as “something in the law that is so different from any other statutory oversight provision. It says the attorney general has a special role”.
Farm labor lobbyist Nadine Wettstein goes even further, “The Act mandates oversight by the Attorney General’s Office,” she says.
The attorney general doesn’t see it that way, however. “The truth is, none of the legislators who foisted that role on {Attorney General Bob} Corbin ever asked if he wanted it or had the resources to do it,” says John Shadegg, a top aide to Corbin.
The Act’s first funding included $472,000 for the Attorney General’s Office, the second-largest budget allocation of any agency involved with the new law. The legislature authorized fifteen additional full-time employees, including five lawyers and two criminal investigators, for Corbin to enforce the Act. This year, Corbin got $564,100 and authorization to hire to more full-time people to enforce the EQA.
Yet agency lawyers plead poverty and deny the law requires them to do more than provide routine legal advice to the agriculture commission. When telephoned by New Times, the office was unprepared even to say how many cases had been referred back to the commission for additional investigation or stronger penalties. None have been referred to the AG’s criminal division for possible prosecution under the Act’s criminal provisions.
And when Phoenix activist Pamela Swift asked Corbin to investigate nine cases which, she says, were mishandled by the commission, the Attorney General’s Office did not even contact the people involved.
Assistant attorney general John Feigen, who handled Swift’s complaint, says he limited his review to the commission’s files and found everything to be in order – although, he admits, he could find no record at all on two of the nine complaints.
Assistant attorney general Beryl Dulsky, head of the civil environmental law division, defends Feigen. “Our review does not consist of re-investigating a case,” Dulsky says.
Swift wrote the attorney general again last month, asking for an investigation of the agriculture commission. This time Corbin responded, “I am afraid I have to inform you that I have no authority whatsoever over investigating or directing how agencies are to conduct themselves…The only authority I have is to give civil legal advice to a commission [and] to investigate possible violations of the criminal statutes.”
The attorney General’s Office is one of the last stops Debbie McQueen made in her campaign to protect her two young sons from pesticide exposure. Indeed, what little faith she has left in her state government rests in large part on the criminal investigators who came to visit her from the Attorney General’ Office last month.
But it’s not clear what they can, or will do about her complaint at this point. “All I can say is that I thought it was serious enough to have two people go out there and talk to her,” says assistant attorney general Rich Maraviglia. “I asked her not to lose faith; sometimes what we do takes a long time, but we never forget about something.”
These days McQueen’s voice takes on a certain stridency when she discusses her plight. “My kids’ doctor told us to get them away from the spray,” she says. “Selvey told us he thinks chronic exposure to the spraying is causing the boys problems.
“And still Les Davis says he has no reason to believe an application took place. We don’t’ qualify for a pesticide management area. I’m afraid we can’t sell our home because we talked publicly about our problem,” McQueen says.
This, according to the people who wrote the law, wasn’t supposed to happen. The long and disgraceful history of official indifference to thepublic’s steady exposure to agricultural toxins was supposed to be over. It isn’t.
Overexposed and Underprotected
The regulation of pesticides in urban areas has become a bad joke, but one Glendale resident is determined to fight for her rights
By Kathleen Stanton
“This is the place, “ Debbie McQueen thought when she moved into the home on West Tuckey Lane four years ago. “This is where we’re going to raise our children.”
Looking back, it seems but a moment elapsed between that feeling of satisfaction and the first sensation of the malaise creeping over her neighborhood.
“Everyone is the neighborhood began to get sick at the same time in April,” McQueen says. All the neighbors noticed it, but when someone mentioned pesticides, “we all laughed,” she says. “It was just a joke.”
None of them are laughing now. Not since the hot morning last August when McQueen and two other neighbors saw a cropduster pause behind their homes and discharge a strong-smelling chemical. A chemical they suspect caused convulsions, severe diarrhea, skin ulcerations and other health problems among themselves, their children and pets.
Going by the sheer number of people complaining, McQueen neighborhood has become the hottest spot on a map peppered with hot spots where sprawling urban development is colliding with the state’s agriculture industry. But in the peculiar arithmetic practiced by state pesticide regulators, those numbers don’t add up to much.
That’s what McQueen, who remembers lifting her two young sons in her arms to watch the hovering helicopter, found out. As have families up and down her street, located in a new stucco-and-tile subdivision that sweeps past fields still cultivated for carrots, sorghum and other cash crops in southwest Glendale.
“Within three days [of the spraying} my older boy, who had gone outside soon afterward, began having convulsions, with profuse sweating, chest congestion and glazed eyes,” McQueen recounts. “Both boys developed ulcers inside their nostrils. And our two dogs, who live in the backyard, became very ill with the same symptoms, seizures and open sores on their skin.”
The first seizure came at a night, and McQueen says it was unforgettable. Jason McQueen, a sturdy blond five-year-old, became rigid, his eyes glazed. His body started twitching violently and saliva bubbled from the corners of his mouth. Then he started screaming.
“You can’t imagine what it was like, trying to hold him and not knowing what was happening to him,” McQueen says. He continued to suffer seizures regularly for at least a month afterward, and tests by a neurologist ruled out conventional neurological disorders as a cause.
Down the street, four-year-old Joseph Gonzales had developed severe diarrhea shortly after the helicopter’s appearance last August 27. The diarrhea continued for six week s afterward, according to his mother Elizabeth, as the boy’s weight dwindled.
It was not the first time that Joseph had become ill following a pesticide application to neighboring fields. In fact, Elizabeth Gonzales states in a written complaint to the state Commission of Agriculture and Horticulture, the family’s history of illness closely parallels pesticide applications since they moved to the neighborhood six months ago. During one application last May family members who were outside actually felt mist on their faces, causing intense itching, eye irritation and chest congestion, she says.
Records on file with the commission show that at least half a dozen other families in the neighborhood have reported similar symptoms, also linked to the time they saw the nimble Bell Jet Ranger with the brown and orange stripes spraying chemicals over the adjoining field.
Under the state Environmental Quality Act of 1986, the public’s involuntary exposure to pesticides was supposed to cease. There is supposed to be recourse for people when such incidents do occur. They can file a complaint with the state agriculture commission, which is given authority by the Act to regulate agricultural pesticide use. A prompt investigation must be conducted and wrongdoers, depending on the gravity of their violations, are subject to heavy fines and even jail sentences. The law says.
It’s not working that way.
Top state official have already assured Marsh Aviation Company, which owns the helicopter, that they don’t believe “anything improper” occurred, based on the pilot’s denial that he made an application near McQueen’s home August 27. Despite three eyewitness accounts contradicting that denial, the state failed to take residue samples in the area. Without that vital physical evidence, it is impossible to prove the most serious of the residents’ allegations – that the cropduster allowed pesticide to drift onto their homes where it caused serious illness.
Those same top officials have produced a set of pesticide regulations that subvert key provisions of the EQA, including a provision to increase control over pesticide applications near residential areas. The regulations, together with the state’s response to spraying incidents like the one McQueen reported, have made pesticide reform under the EQA a bad joke.
The big mistake, according to environmental activist Pamela Swift, was turning over pesticide regulation to the agriculture commission, a sleepy collection of old-timers with strong ties to the farm lobby. The aggies, however, refused to support the EQA unless pesticide regulation remained with an agency they consider “friendly.” In response, public-interest groups insisted on a series of oversight measures, some of them unprecedented, in the law.
But records and statements of key officials indicate that oversight has been effectively scuttled, if not by politics, then by sheer indifference. A new legislative session is just around the corner but no one seems inclined to tamper with the status quo – no matter how many people say the law’s just not working.
McQueen, the 29-year-old wife of a corporate sales representative, has a direct, no-nonsense way of presenting her facts. It compels the attention – and the respect – of most listeners, including legislator and state health officials to whom she told her story.
Last October 30, she was among a dozen or so people who testified before the joint legislative committee on pesticide oversight. Commission director Ivan J. “Tiny” Shields had already presented his report when McQueen took the podium, facing a semicircle of craggy rural legislators. It was not a particularly sympathetic audience – indeed most of the committee members make their living through farming or ranching – and some were clearly grumpy from listening to people complain about pesticides.
What McQueen had to say, however, did more than deepen their scowls. Speaking in a flat Midwestern drawl, she methodically presented information that undermined the credibility of Shield’s statistics on citizen complaints, challenged the objectivity of commission officials, and raised questions about their commitment to investigate cases such as hers.
McQueen told legislators that while Shields reported there had been just ten health-related complaints in the past year, she had counted more than twice that many while thumbing through the complaint log at commission headquarters. Nor, it appears, is the complaint log complete. Commission records show that at least four other people in McQueen’s neighborhood submitted written complaints about the August 27 incident, but the log shows just one complaint – hers.
The reason for the discrepancy, Shields counters, is that the commission categorizes complaints by what is first on the caller’s list. “We assume people mention the main thing first, so if they complaint about smell we put it under ‘odor’ even though the might also have mentioned drift or health effects,” he says. “We’re just trying not to present confusing statistics.”
State Representative Larry Hawke of Tucson, a committee member and key sponsor of the EDQ, calls Shields’ explanation “pretty weak – quite weak, in fact.”
Even more people from her neighborhood would have filed complaints, McQueen says, except for the attitude of Chris Rice, the commission inspector who handled the investigation. “He told me there had been no application in our neighborhood that day because there was no [record] of it,” she told the legislators. “He also told me that I should call the state health department because, he said,’ in actuality I am working for the farmers and [state health investigator] Don Selvey is working for you.’”
Rice contends that McQueen misunderstood his effort to explain the distinction between enforcing pesticide regulations – his job – and evaluating health complaints, which is done by the Arizona Department of health Services’ (DHS) office of risk assessment.
It wasn’t the only instance of pro-industry bias, McQueen asserts. She quotes Les Davis, director of the commission’s division of agricultural chemicals and environmental services, as saying, “I have no reason to believe a helicopter was discharging behind your home [August 27, 1987], as, to date, no [application records] is on file.
“I’m telling you as a friend, if you pursue this matter, Marsh Aviation will slap a slander suit on you.”
Marsh manager Elsie Humphreys says her company is considering no such legal action, and Davis denies ever offering such a warning. (The act contains strong language prohibiting the intimidation of people who file pesticide complaints.) “I deny that completely: I don’t say things like that,” Davis insists. But the remark was overheard by a third party, Melody Baker of Phoenix, who corroborates McQueen’s account and says it came on the heels of a telephone conversation between Davis and Humphreys. During the conversation, Davis told Humphreys he had no reason to believe anything illegal had occurred, the women say.
Davis does acknowledge doubting McQueen. “Marsh has always been real good about filing [records],” he says. Cropdusters are required to record specific information about each application they are hired to make and to provide copies to the commission, which receives about 30,000 such records each year.
Humphreys maintains that Marsh did not make an application near McQueen’s home on August 27, although one had been scheduled. The pilot’s record shows an application was made there the following day, but Humphreys denies that Marsh had anything to do with the discharge that prompted the neighborhood flare-up. “The pilots sometimes fly over an area to scout for hazards before making an application, so he may have there on the 27th but he definitely didn’t make an application that day,” Humphreys insists.
Rice, the commission inspector assigned to the McQueen case, won’t comment while his investigation is still open. But his actions reflect little faith in the residents’ assertion that Marsh was there, discharging something, on the 27th, not the 28th.
Perhaps most damaging to a potential enforcement case was Rice’s failure to test soil, vegetation or residents’ property for pesticide residues. He declines to discuss the matter while the case is still under investigation. Such evidence is critical to demonstrate that the strong odor that filled McQueen’s house was, in fact, pesticide drifting off target. Without proof that drift occurred, it is almost impossible to prove a connection with health effects.
And under the commission’s new regulations, only by demonstrating a serious health threat can the state seek the maximum civil penalty, a $10,000 fine per violation, or bring felony charges under the Act’s criminal provisions.
The absence of such important evidence is particularly frustrating because DHS investigator Don Selvey says that some of the symptoms experienced by Jason McQueen and others in the neighborhood area are consistent with chronic exposure to Pydrin, which Marsh admits applying on the fields near McQueen’s home on August 28.
Rice not only failed to collect potential crucial physical evidence, he also supplied misinformation to Selvey. The two agencies are supposed to work together on pesticide investigations involving health complaints, but Selvey say that when he asked Rice for Marsh Aviation’s August 27 application records, Rice to him there were none and failed to mention the dispute over Marsh’s application record for the 28th.
“I do get the feeling that [the commission] believes that no application occurred,” says Selvey, an epidemiologist in the DHS risk assessment office. “Frankly I’m not among those who believe that if there is no record there was no application.”
The absence, or inaccuracy, of a record to document an application is itself a violation of commission regulations. That the commission would draw important conclusions from incomplete information bothers Hawke, who was closely involved in drafting pesticide portions of the Act. “What does the commission mean? If there’s no record there’s been no application, ipso facto? That doesn’t make sense,” Hawke says.
THE FUNDAMENAL FACT OF LIFE within the agriculture commission, says former pesticide inspector Cynthia Wood, is a deep loyalty to the agricultural industry. “The commission was chartered before Arizona became a state and was chartered to promote agriculture. Five of its six members are industry people and the sixth, the public’s representative, was a long-time farmer before his retirement,” she explains. “It’s contradictory with the mandate to regulate pesticide use.”
The clock turns back as one enters the Spanish Revival building at 1688 West Adams, one of the oldest buildings at the Arizona State Capitol, where the commission is headquartered. Silver-haired gents in bola tie mosey between offices, speaking in a distinctive rural accent that has all but disappeared elsewhere in Phoenix. The pesticide inspectors, mostly young men in their first government job, are guarded and silent around outsiders.
Commission director Ivan J. “Tiny” Shield dominates the office physically and philosophically. He holds a Ph.D. in entomology and is rooted in Arizona’s agricultural development. He’s been advising farmers since 1952, when he became a county extension agent, and served as director of the University of Arizona cooperative extension service office in Maricopa County for twenty years before becoming commission director in 1982.
Shields did not participate in drafting the pesticide provisions of the EQA, but he has presided over their implementation. Public-interest advocates say the result is a complete disregard of the public’s right not to suffer unwilling pesticide exposure.
“Shields has made it quite clear that his job is to protect the industry, and a lot of the problems you’re hearing about today relate to that and the fact [the commission] is not really very experienced with pesticide regulation,” says Michael Gregory, the Sierra Club’s pesticide specialist in Arizona.
Shields asserts that “pesticide regulation in California and Arizona is miles ahead of other states in strictness.”
But Wood agrees with the commission’s critics. She worked for the commission nearly eight years and is the only pesticide inspector ever to receive a merit commendation from the Board of Pesticide Control for her enforcement work. Wood continued as an inspector for eight months after the commission took over pesticide regulation from the board, a semi-autonomous arm of the commission that was disbanded by the EQA in August 1986. She resigned to become a hazardous-materials specialist with the Arizona Department of Transportation.
Based on that experience, she says pesticide regulation has not improved with the change. Turnover among inspectors continues to be high, she says, “and I don’t think there’s any greater effort on investigations.”
Davis and Shields say the number of citizen complaints is dwindling steadily, and that it reflects increased cooperation from cropdusters. They acknowledge that they have yet to seek an injunction or criminal prosecution, or even cite someone for a serious civil violation, all increased enforcement provisions under the new law.
Indeed, no enforcement case has even gone before a hearing officer. They’ve all been settled by agreement with the violators. But that, contends Davis, is because the violators know they can’t win. “With our present investigation techniques, when the decision is made to [cite] a violation we have no trouble reaching a settlement that the attorneys will back because they know we’ve built the case,” he says.
Just how real are the complaint statistics? Besides Debbie McQueen’s testimony challenging their accuracy, several citizens at the oversight hearing charged that inspectors discouraged them from pressing their complaints.
David contends his inspectors do not discourage people from making complaints but Wood disputes his account. “[Commission officials] don’t want to log things in because, under the law, the attorney general has to review the disposition of each citizen complaint,” she says. “At one point, Les didn’t want [citizen complaints] to be logged in until they were substantiated in in some way.”
Davis denies there was ever such a policy. “We do not discourage people; that’s what we’re her for, “he asserts.
While enforcement is primarily a story of what the commission hasn’t done, it’s equally important to look closely at what it has done. The commission’s development of rules to implement the Act – rules that gut the Act, according to critics – marked the disintegration of the carefully structured deal that allowed both farm lobbyists and the public interest advocates to support the law.
In fact, th commission has interpreted the law so narrowly that some parts, including key provision to protect the public, many never see any use. Under the EQA, for instance, the main protection for Debbie McQueen’s neighborhood is to designate it a pesticide management area (PMA).
Cropdusters operating in PMAs must give advance notice before applying any pesticide on a list drawn up by the commission. The intent is to allow inspectors to closely monitor pesticide applications in such areas. “Monitoring is unquestionably the best enforcement tool we have,” says Wood.
McQueen submitted such a request, signed by 21 neighbors, in September. But, she says, “Les Davis says we may not meet the qualifications because he didn’t think they were using highly toxic chemicals out here.” Under the commission’s new regulations, an area must meet all of the following criteria in order to qualify for protection: The property must be within on-quarter mile for the field to be treated; the pesticide must be applied by air; the pesticide must be highly toxic or odoriferous, a category that now includes less than thirty brand names; and at least 5 percent of the residences in a neighborhood must file complaints w/the commission.
Asked to predict how many neighborhoods will qualify for protection under those criteria, Wood forms a zero with her hand. “Residents will really have to organize in order to meet the 5 percent requirement, and it will be hard to determine what constitutes 5 percent,” she says.
“The pesticide requirement,” Wood adds, “fails to recognize that other materials [than those on the list] can be very dangerous.” The pesticide chlordimeform, for example, is subject to some of the strictest handling requirements in existence because it is a virulent carcinogen – but it is not in the “highly toxic” or “odoriferous” categories.
Davis contends that the pesticide requirement is there because the law requires it. “It’s in the law and we have to abide by it,” he says.
But the law says nothing of the sort. The law requires cropdusters to notify the commission in advance before applying certain pesticides in a PMA, but the law doesn’t limit that list to highly toxic or oderiferous ones. It says the list must include highly toxic, odoriferous, “and other pesticides with similar odoriferous characteristics, or otherwise appropriate for inclusion and shall include in that list paraquat.”
Why should the commission want to deter the establishment of PMAs, possibly the most painless way to reduce the friction between homeowners and farmers? For one thing, the powerful Arizona Farm Bureau Federation has misgivings about them.
“I know it sounds good, and we supported [the PMA provision of the law], but it’s not the total answer to using pesticides in an urban area,” says Jim Klinger, lobbyist for the Farm Bureau. “It creates a new management problem for the farmer because pest infestations can explode overnight. Sometimes there is not time to provide 24-hour advance notice.”
Klinker acknowledges that the law “has some wiggle room” in the notification requirement, but worries that farmers in PMAs nevertheless may face legal liability if the fail to meet it.
Wood says the commission’s motive for gutting the PMA provision flows from its basic vision of purpose. As an inspector, she says, she saw plenty of evidence that top commission officials consider monitoring pesticide applications a waste of time, time better spent helping farmers grow crops.
Debbie McQueen did not stop with the agriculture commission. When she realized the commission was bungling her investigation, and that its regulations might preclude even the limited protection of a PMA, McQueen sought help elsewhere.
She wrote Senators Dennis DeConcini and John McCain. She filed separate complaints with the state Department of Environmental Quality, the state Attorney General and the Environmental Protection Agency. And she testified before the legislative oversight committee. She even wrote Nancy Reagan.
But part of the reason the law is failing is that the oversight mechanisms are failing as well. Despite the fact that agricultural pesticides account for the single most significant exposure to industrial toxins that most Arizonans face, their regulation is far down the list of priorities for agencies such as the EPA and the state attorney general.
“Only if we find fairly major problems with a state’s program can we even consider taking jurisdiction [for pesticide regulation], “says Nancy Frost, chief of the EPA’s pesticide section in San Francisco. She and other EPA officials say they are satisfied with the commission’s performance and professed only vague awareness of public dissatisfaction with it.
The state’s chief executive has broad general powers to intervene in such matters, but apparently pesticide regulation is not a priority for Governor Evan Mecham. In early June, a coalition of 27 groups, representing outdoor sports groups, environmentalists and farmworkers, sought Mecham’s intervention to strengthen the commission’s proposed regulations. All they got was the brush-off.
Former Mecham aide Sam Steiger met with leaders of the coalition. But as Shields recalls it, Steiger stopped him briefly during an unrelated meeting and simply mentioned the coalition’s visit. “I never heard anything more from him about it,” Shields says. “The whole thing took no more than a minute or two.”
The Act also established a legislative oversight committee to monitor agency performance and identify weak spots in the law. Given its make-up and early indications, no one seriously expects the legislative committee to recommend any but minor changes, least of all the Act’s authors.
To begin with, Republican legislative leaders such as House Speaker Joe Lane, a Wilcox rancher, stacked the committee with rural legislators. At least half of those on the committee are ranchers or farmers, or are directly dependent on agriculture for their livelihoods.
Hawke, the Act’s key sponsor, says he was not even offered a position. “I put myself on it – I had to ask to be on it,” he says.
Lane appointed state representative Jim Hartdegen, a Casa Grande conservative who seldom masks his disdain for government – and especially federal regulation, as the House Co-chair. Flanked by dour colleagues, Hardegen kept the parade of pesticide critics off-balance and irritated with facetious questions. He interrupted testimony about health effects from pesticides to muse, “Does anyone know how many people are killed by coyotes each year. I’d really like to know that.”
In an interview later, Hartedegen turned serious. “I think these people are telling the truth. They shouldn’t have to wait months to find out what’s put on the fields that’s making them sick.
“I would like to sit down with the other drafters [of the Act], not in an adversarial way, and look at what the agriculture commission is doing,” he says.
But the fixes he and other legislator are talking about are minor. “I’m afraid it’s still too early to try and make major changes in the Act,” Hartdegen says. “The trouble is if you go back in and open it up, the aggies will get in there and there’s no telling what will happen.”
In addition to legislative oversight, the Act also requires the state attorney general to review the commission’s response to each citizen complaint it receives – an unprecedented requirement in state law.
Farm lobbyist Jim Klinker describes the attorney general provision as “something in the law that is so different from any other statutory oversight provision. It says the attorney general has a special role”.
Farm labor lobbyist Nadine Wettstein goes even further, “The Act mandates oversight by the Attorney General’s Office,” she says.
The attorney general doesn’t see it that way, however. “The truth is, none of the legislators who foisted that role on {Attorney General Bob} Corbin ever asked if he wanted it or had the resources to do it,” says John Shadegg, a top aide to Corbin.
The Act’s first funding included $472,000 for the Attorney General’s Office, the second-largest budget allocation of any agency involved with the new law. The legislature authorized fifteen additional full-time employees, including five lawyers and two criminal investigators, for Corbin to enforce the Act. This year, Corbin got $564,100 and authorization to hire to more full-time people to enforce the EQA.
Yet agency lawyers plead poverty and deny the law requires them to do more than provide routine legal advice to the agriculture commission. When telephoned by New Times, the office was unprepared even to say how many cases had been referred back to the commission for additional investigation or stronger penalties. None have been referred to the AG’s criminal division for possible prosecution under the Act’s criminal provisions.
And when Phoenix activist Pamela Swift asked Corbin to investigate nine cases which, she says, were mishandled by the commission, the Attorney General’s Office did not even contact the people involved.
Assistant attorney general John Feigen, who handled Swift’s complaint, says he limited his review to the commission’s files and found everything to be in order – although, he admits, he could find no record at all on two of the nine complaints.
Assistant attorney general Beryl Dulsky, head of the civil environmental law division, defends Feigen. “Our review does not consist of re-investigating a case,” Dulsky says.
Swift wrote the attorney general again last month, asking for an investigation of the agriculture commission. This time Corbin responded, “I am afraid I have to inform you that I have no authority whatsoever over investigating or directing how agencies are to conduct themselves…The only authority I have is to give civil legal advice to a commission [and] to investigate possible violations of the criminal statutes.”
The attorney General’s Office is one of the last stops Debbie McQueen made in her campaign to protect her two young sons from pesticide exposure. Indeed, what little faith she has left in her state government rests in large part on the criminal investigators who came to visit her from the Attorney General’ Office last month.
But it’s not clear what they can, or will do about her complaint at this point. “All I can say is that I thought it was serious enough to have two people go out there and talk to her,” says assistant attorney general Rich Maraviglia. “I asked her not to lose faith; sometimes what we do takes a long time, but we never forget about something.”
These days McQueen’s voice takes on a certain stridency when she discusses her plight. “My kids’ doctor told us to get them away from the spray,” she says. “Selvey told us he thinks chronic exposure to the spraying is causing the boys problems.
“And still Les Davis says he has no reason to believe an application took place. We don’t’ qualify for a pesticide management area. I’m afraid we can’t sell our home because we talked publicly about our problem,” McQueen says.
This, according to the people who wrote the law, wasn’t supposed to happen. The long and disgraceful history of official indifference to thepublic’s steady exposure to agricultural toxins was supposed to be over. It isn’t.