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Les Davis, executive director of the Arizona Agricultural Aviation Association, was surprised and skeptical when told about the Hegi case. It's critical that people have proof before they accuse aerial applicators of injury, he says. A lot of people complain about pesticide odor, noisy planes and the nuisance of crop dusting, but the evidence of damage is often not there.
"I have never heard of anybody in Arizona being killed by being sprayed by a pesticide. It's just the family saying that's why he died," says Davis, who has operated an aerial application company and is a longtime advocate of pilots. "It's a disservice to agriculture when people make these claims."
Davis, who is adamant that the name "crop duster" be replaced with "aerial applicator," was the last administrator for the Board of Pesticide Control before it was eventually folded into the Department of Agriculture. "I helped write the rules operating right now," he says.
Those rules require a burden of proof that is so high, critics say it is extremely difficult for a pilot to receive a serious penalty and a steep fine.
Poor enforcement was the theme of a scathing report on the department's pesticide compliance program by the Arizona Office of the Auditor General last September. The crux of the problem: Fines are too low to be a deterrent. The auditor found that the point system for determining fines, even when used liberally, was incapable of awarding the maximum fine of $500 for a non-serious violation, a Class 1 misdemeanor. Serious violations, a Class 6 felony, carry a maximum fine of $10,000, but nearly all violations in the last five years were deemed non-serious, even with clear evidence of serious misconduct.
When the audit -- by far the most critical of seven audits of the department's programs -- was released last fall, it was virtually ignored by the media, lawmakers and Governor Jane Hull, who signed a bill to continue the department after its 10-year sunset review.
"It's not a question of getting into some sort of brinkmanship in a sunset bill," said Francie Noyes, a spokeswoman for the governor, when asked about the audit. "The governor is confident that the agency is doing its job."
Peterson agreed, saying the audit didn't sound the alarm bell. "I don't think they found any glaring problems."
If any pilot should have set off alarm bells, it was Joe Henderson. The department investigated 27 complaints against him, fining him in half the cases -- none considered serious.
Pesticide from Henderson's plane hit cars, horseback riders, a plant nursery and a day-care center, according to department records. He sprayed a manufacturing plant while employees were working inside -- twice. He sprayed an entire subdivision in Queen Creek, where neighbors ran for cover from the pesticide that eventually killed the trees lining their front yards. And three years before his death in a plane crash, Henderson killed 80,000 fish in one morning at the University of Arizona's Maricopa Agricultural Research Center.
Fellow pilots say the number of complaints against Henderson should be taken in context. His company, San Tan Dusters, did a high volume of business, and Henderson's clients were primarily farmers whose land came right up next to subdivisions from the East Valley.
"He had a wonderful operation," says Davis. "He was very careful with chemicals and one heck of a pilot."
But to some people on the ground below, Henderson was a daredevil. He was once fined $240 for a complaint that he was "flying like a maniac," department records show. Bill Day, a Chandler rancher, pulled out a rifle and shot Henderson's plane when he continued to buzz Day's horses, according to news accounts in April 1994. Day was charged with aggravated assault and criminal damage, and Henderson was cleared of any wrongdoing by the Federal Aviation Administration. About the same time, Cheryl Livermore told the media that she and two friends were "blitzkrieged" by Henderson while horseback riding.
Agriculture department officials acknowledge that they have repeat offenders who need to be regulated differently, yet they seem mired in a system that favors industry over public safety. Leaders from industry, the Legislature and the department are reluctant to push for change.
"We do our best to make sure we know what people are doing," says Peterson. "By doing this, people are always on their toes, and we have compliance with the law."
The auditor general didn't find that to be true. Besides finding that penalties are too low to deter violators, auditors also found that regulators almost never know when or where crop dusting will take place. Pilots, even chronic violators, don't have to report what they sprayed until they've hit -- or missed -- their targets.
Setting up a system like the one in California, where all pilots must get permission ahead of time to spray, would not be worthwhile, department officials in Arizona say, because less than 1 percent of the estimated 30,000 pesticide applications ever result in a complaint. Asked several times about monitoring repeat offenders -- a recommendation of the auditor general -- Peterson agreed that it should be done. But he wouldn't make any promises.