"Pesticide damage is very, very difficult to prove," says Jerry Thompson, the North Dakota department's pesticide coordinator. "We look at the potential for injury."
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.
Then he saw something more frightening: fishermen dipping their nets into the canal, scooping out the floating fish and loading them into their vehicles for food. Ellis says he ran up to them, pleading with as many as he could not to take the poisoned fish, but more people were coming to the water as he spoke, and he wasn't sure if he stopped everyone in time.
The incident was reported to the federal Environmental Protection Agency, which turned over the case to the Arizona Department of Agriculture.
The fishermen apparently meant little to the department. Daniel Bossard of Pierce Aviation, the offending pilot, received points for killing fish and for knowingly committing the violation. No points were assigned for evidence of human exposure, water contamination (the pesticides Lorsban and Thiodan were detected), or bird kills (Middleton found a dead turkey vulture near the canal, which wasn't retrieved or tested by the department).
Asked about the void of penalties for possible human harm, given the water and fish contamination, Peterson says that aspect was considered, but the department threw up its hands when it discovered that the canal, the water and the fish all belonged to Paloma Partners Ranch. "Those people [the fishermen] would have been trespassing," says Peterson. Had it been a public water source, which it wasn't, the outcome would have been different, he added.
Bossard's violation, his fourth complaint since 1990, was deemed non-serious, and the department fined him $113. His case history includes investigations into the spraying of a trailer park and its pool area in September 1991, and pesticide drift onto a romaine lettuce field in March 1994. Further information was not available because of the destruction of paper files after five years.
Bossard was not surprised by the fish kill, according to an investigator's report. Although winds were calm, and nothing unusual happened, Bossard told the investigator he faced a number of obstacles: fish stocked close to a cotton field, a pesticide that tends to hang in the air, and humidity that makes drift hard to avoid.