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"We can make every effort to protect public health, but again, we have to regulate the applicator," he says. "We've shown the stuff is there. . . . It's an expensive process to run each one of these tests."
Cody Pierce of Pierce Aviation was the crop duster who dropped endosulfan less than 75 feet from the canal. Pierce, who had no prior violations, was assigned points for human exposure, for water contamination (despite the absence of water samples) and for knowingly committing the violation. No points were assigned for killing fish. The department labeled the case non-serious, and Pierce was fined $99.
"He got the maximum fine you could give him," says Peterson.
Giving Pierce more points for human exposure would have required proof that someone got medical treatment. The only category in which Pierce could have gained points was wrongfulness of conduct. His violation was ranked "substantial," the second highest category. To call it "aggravated," which would have bumped him to the serious category, would require proving "substantial probability" of serious physical injury, sustained medical treatment or enough environmental damage to pose a threat to public health, safety or property. The case did not rise to that level, says Peterson.
Neither did the cases of Erin Petersen and Cort Bacon, even though they received medical treatment for pesticide exposure. The Rural/Metro firefighters were sprayed while refilling their fire truck beside a canal in Yuma. Because their hospitalization lasted less than 12 hours, the penalty against the pilot, Jeffrey Kottenbrook, was $99.
One of the agriculture department's repeat offenders, Robert Moseley, received only a warning letter for letting pesticide drift hit three retirees on Mountain View golf course in Laveen in February 1996.
"It was kind of bizarre because all of a sudden there was a plane that looked like it was going to get us," says Paul Fanning, who suspects that the pneumonia he caught soon after the golf game was pesticide-related. "It surprised me that they didn't fine him because you're using a chemical that affects citizens."
Other states give more weight to the probability of harm to humans, animals and the environment, even when none has been found. The North Dakota Department of Agriculture, for example, penalized two people with fines of $2,575 and $4,500 for possible human exposure to pesticide drift, although the health effects from exposure were never proven. One case involved workers on an oil rig who claimed they were sprayed by a crop duster. The other was a 12-year-old girl who was sprayed while running a tractor.
Peterson says Arizona does take into account the likelihood of harm, but he is leery of giving too much weight to something not supported by evidence. "It just leaves you open to legal challenges over and over again," he says. "If there are situations where problems have occurred, we will address it."
Although Peterson says evidence of damage is a prerequisite for a serious violation and steep fine, that was not the case in one of the rare $6,000 fines levied against a pilot.
Penny Freeman was flashing her headlights, but she couldn't stop pilot Tommy Socha from spraying methyl parathion as his plane dived under a power line, flew over the road and crossed a field south of Coolidge. The spray coated her windshield, but more important, Socha hit a field of alfalfa that was later harvested as hay for livestock. Investigator C. Ray Peery was worried that the chemical, which can cause serious problems for livestock, had contaminated the hay.
Peery warned the farmer who harvested the hay, but tests of the alfalfa showed safe levels for methyl parathion, and for acephate and chlorpyrifos, two chemicals left over from a previous application by Socha.
Just two years earlier, Socha paid only $42 for a complaint that pesticide exposure at a mobile home park caused four children to vomit.
In the alfalfa case, no people, crops or animals were damaged. The $6,000 penalty was based partly on how close Socha came to contaminating livestock's food, which could lead to contaminating the human food supply. A bigger issue was Socha's negligence, says Peterson. The pilot actually sprayed the car and the field, as opposed to allowing drift to hit an unintended target.
By avoiding similar violations during a year of probation, Socha ended up paying $2,000. The case is one of the few the department put in the serious category.
Southwest of Phoenix, fishermen scooping up poisoned fish from a canal didn't warrant the same concern.
Dove hunting season was under way, and Kevin Ellis and fellow officer Steve Middleton from the U.S. Fish and Wildlife Service had a farmer's permission to monitor hunters on September 1, 1997, at Paloma Partners Ranch southwest of Phoenix. But instead of watching birds become prey, the officers watched a black plane spray pesticide dangerously close to a canal bordering a cotton field.
An hour after the spraying, fumes still hung in the air. Ellis peered into the canal and saw water rippling with the jerks and twists of fish struggling for oxygen. Ellis drove down the canal for six miles, watching thousands of fish turning belly up.