The Record (Sacramento, Calif.)  [Printer-friendly version]
August 21, 2005

REGULATION ADRIFT

[Rachel's introduction: Poor enforcement contributes to the
persistent failure of the risk-based regulatory system -- one more
reason why a precautionary approach is needed.]

By Hank Shaw, Capitol Bureau Chief, The Record

SACRAMENTO -- Every year, illegally used pesticides sicken thousands
of farm workers laboring long hours to harvest California's
agricultural bounty. But all too often, justice for the campesinos is
slow, weak or nonexistent.

California's agriculture commissioners -- the county officials
responsible for protecting farm workers and the public from mishandled
pesticides -- often perform perfunctory inspections and fail to levy
fines against violators, a Record investigation has found.

Such spotty enforcement has emboldened unscrupulous growers and
allowed others to become sloppy, skipping safety precautions and
causing permanent injuries. Many of the insecticides and herbicides
that farm workers breathe and touch every day can damage the eyes and
lungs and are linked to increased cancer rates, sterility, Parkinson's
disease, miscarriages and nerve damage.

A Record analysis of six years of state Department of Pesticide
Regulation data shows many pesticide violations that injure workers
result in nothing more than a warning letter. And those that do draw
fines average about $500 per worker.

A few agriculture commissioners use fines to send stern messages to
growers. Sacramento County's Frank Carl is one of them. Carl levied
208 fines for misuse of pesticides from 1999 through 2004.

Others, such as San Joaquin County Agriculture Commissioner Scott
Hudson and his Stanislaus County counterpart, Dennis Gudgel, say
they'd rather educate growers and see them comply with the law than
levy fines against them.

As a result, San Joaquin, the sixth-largest agriculture county in
California, levied only 48 fines against pesticide violators in the
six-year period from 1999 through 2004. Stanislaus, the state's
seventh-largest farming county, levied just 18.

Hudson and Gudgel acknowledge that results of a compliance-based
system can look a lot like inaction, although they say they are
working hard to prevent pesticide misuse through educational forums.

But most field workers say they've never even heard of agriculture
commissioners, let alone know who they are, what they do or how to
contact them. Unknown thousands of illnesses are never reported,
leaving shattered lives hidden in quiet corners of rural California.

The endemic inaction frustrates advocates for the state's 400,000 farm
workers. "For the most part, it's not like the commissioners are bad
actors," United Farm Workers spokesman Marc Grossman said. "They just
don't do anything."

Commissioners say successfully prosecuting violators isn't easy. Add
to this the difficulties of a largely Spanish-speaking work force of
illegal immigrants fearful of retribution from their bosses, the
transient nature of most farm workers and overstressed inspection
departments.

It's no wonder many cases slip through the commissioners' fingers.

Benito Salomon's case did.

The 37-year-old Marysville resident came to California from Nayarit,
Mexico, to seek his fortune. But pesticide poisoning cost him a lung
and both kidneys and has left him a quaking wreck. He cannot walk. The
grower responsible received no fine.

A dismal record

The Record graded California's 55 agriculture commissioners based on
the quality of their inspections -- how many violations they find --
and what they do once they find them.

Overall, only a tiny percentage of pesticide violations resulted in
fines, but enforcement varies widely from county to county. For
example, records show a violator in Sacramento County is about 10
times more likely to draw a fine than a violator in San Joaquin,
Tulare, Kern, Kings or Merced counties.

Enforcement is even worse in Monterey, Stanislaus and Merced counties.
Combined, these three counties wrote only 69 fines for illegal
pesticide use from 1999 through 2004. Sacramento County levied that
many in 2004 alone.

Standing at the bottom of the enforcement scale are the Sacramento
Valley counties of Yuba and Solano. Between them, they levied only
three pesticide fines in six years. Solano recently replaced its
agriculture commissioner. A county spokeswoman said the commissioner
chose not to apply for another term.

It is not uncommon for violators to receive either no punishment or a
symbolic fine even when they injure workers, residents or motorists.

In January 2003, three Kern County residents went to the emergency
room and 11 others fell ill after a grower fumigated the soil in
nearby fields with metam-sodium, a powerful toxin. The fine worked out
to $100 per illness.

In April 2000, a helicopter sprayed 22 cauliflower harvesters with
pesticides in Monterey County. Shortly after the helicopter passed,
the workers developed headaches, nausea, numb lips and the shakes.
Although the grower took the workers to a hospital, the county
agriculture commissioner issued neither a warning letter nor a fine to
either the grower or the sprayer.

And in a recent San Joaquin County case, at least 25 walnut processors
reported symptoms ranging from dizziness to nausea to shortness of
breath after the management fogged the plant with the insecticide
resmethrin. Exposure to resmethrin can increase chances of sterility
and contribute to birth defects and other reproductive disorders.

Even though this is the largest reported illness case in recent San
Joaquin history, Hudson said he couldn't prove the owner broke the
law, because the pesticide label lacked specific rules for airing out
the warehouse or for how long to keep people away.

Rashes, nausea and cancer

Braulio Martinez blames pesticides for ruining his sight. Years after
he was sprayed while working in a vineyard, the 53-year-old Tulare
County resident still endures sometimes unbearable pain in his eyes.

He remembers the day. A plane sprayed a nearby field while he was
working in Kings County. He does not know what he was exposed to, but
he began feeling symptoms that night.

"My head hurt. I was tired and felt like I wanted to throw up,"
Martinez said. "Within a month's time, I noticed a burning and itching
in my eyes, and the more I scratched, the worse it felt."

Martinez never reported his illness.

Cases like Martinez's are typical, because California serves as the
nation's produce aisle. Pests prefer fruit, nuts and vegetables to
crops such as wheat and corn. Growers of those preferred crops use
more pesticides to keep them blemish-free for choosy shoppers.

Many fruits and vegetables must be picked by hand, putting workers in
close proximity with a brew of pesticides and herbicides whose sole
purpose is to kill.

Most of the truly nasty pesticides have been banned in California,
such as chlordane and DDT, and the days of farm workers collapsing
from immediate contact with pesticides are largely over. Most acute
poisonings now cause rashes, welts, nausea, headaches or dizziness.

A group of workers at a Yuba County ranch said last week that they
often suffer from rashes and irritation due to constant contact with
sulfur. Some have rashes or boils on exposed skin. Noe Vilchez said
his eyes are always burning, much like Martinez's.

Death can come from long-term exposure to a variety of pesticides.
Scores can cause cancer, reproductive problems, nerve damage and
Parkinson's disease.

The nightmare for Marysville's Benito Salomon began eight years ago,
when he was sprayed by pesticides in a Yuba County peach orchard.

Nausea hit him first. He started to cough up blood. Still, Salomon
returned to work day after day, against his friends' advice.

His condition worsened. Salomon sought medical attention, but the
clinic could not help him.

"And so the day came when I just couldn't work anymore," he said
through a translator.

Salomon spends his days now on a mattress near a swamp cooler, watched
over by his mother, religious icons and a small collection of Mexican
soccer-team hats.

"I miss working and feeling healthy," he said, propping himself up on
a set of shaky arms no thicker than those of a young girl. "Right now
I can't even go to the restroom by myself.

"Sometimes I have dreams, and in the dreams I am walking. But when I
wake up I can't even move."

Dr. Marion Moses is one of the nation's foremost experts on the
effects of pesticides on the human body. As doctor to the late farm-
labor leader Cesar Chavez, Moses has had good reason to study the
toxins.

Since catastrophic illness has become rare, growers and agriculture
commissioners often downplay pesticide exposure, Moses said. "Their
standard is if you're not in the boneyard, you're fine," she said.
"That's not the point. The point is unacceptable legal exposures."

Moses likened the situation to lead exposure. Chronic or high-level
exposure to lead can cause a slew of health problems, including brain
damage and death.

"They didn't wait until workers were sick" to ban items with lead,
Moses said. "There was a level that you could not exceed. You don't
have that with pesticides."

And lead is easy to detect. Pesticides are not, which fools many
doctors. "A lot of doctors really don't know how to diagnose it," she
said.

Enforcement vs. compliance

Some agriculture commissioners view themselves as enforcers, a sort of
"crop cop." They'll fine a grower when they catch a sprayer not
wearing goggles even if he or she wasn't hurt -- because the potential
was there. A fine sends a message.

Other commissioners will send their message with a warning letter.
Some simply ask the grower not to do it again.

Empathy for the world's most-heavily regulated farmers is a prime
reason for such leniency. Many commissioners come from farming
families, and a few even oversee the operations of their relatives.
Indeed, an agriculture commissioner's official job is to promote
farming in a county.

Commissioners say they wrestle with this conflict.

Most have come to the conclusion that enforcing pesticide laws
protects workers and helps law-abiding farmers who have a right to use
pesticides properly.

Sacramento's Carl is one of the toughest enforcers in the state. He
instructs his inspectors to levy a fine whenever they see a violation
that endangers a worker.

"If it's a worker-safety violation in Sacramento County, you get a
fine. Period," Carl said.

Former Calaveras County Agriculture Commissioner Jerry Howard -- who
was hired in Solano County last month to step up enforcement --
agreed.

"I have zero tolerance for spraying people," he said. "To me, that's
the capital crime in pesticide use."

One case in particular illustrates Carl's strict stance.

In 1998, Carl fined Lodi-based grape grower Felten-Mehlhaff Farms
$17,856 for allowing 14 workers to enter a Sacramento County vineyard
while it was being treated with sulfur, not taking them to a doctor
after they were exposed and failing to train them and 37 other workers
in pesticide safety. Chronic or high-level exposure to sulfur can lead
to lung problems and skin damage.

Carl fined Felten-Mehlhaff on a per-worker basis, something rarely
done by his colleagues.

Hudson, Gudgel and others say they, too, will fine for serious safety
cases. Hudson fined a grower $5,200 in 2001 for poisoning nearby
residents with methyl bromide.

But they say they try to educate growers and pesticide companies about
the law so they aren't forced to levy fines.

"Our goal is to avoid getting to a fine," Hudson said. "Our goal is
for compliance."

As Gudgel put it: "Do we measure the quality of a program based on the
number of tickets we write, or do we measure it on the instance of
compliance?" Hudson and Gudgel say a new push for enforcement by the
state diminishes their educational efforts. They say they're getting
dinged for focusing too heavily on compliance.

"There's been a growing concern that enforcement in the pesticide area
needs to be stronger," Hudson said, noting that his office should
issue more fines in 2005 than it did last year. "We've responded
accordingly."

Starvation, ignorance and fear

Even strict commissioners can investigate only what they know about.
Carl said he did not find out about the Lodi grape grower's violation
until he was notified by a representative of California Rural Legal
Assistance.

All of the commissioners interviewed for this report said their
pesticide enforcement has suffered because they have lost staff to
budget cuts. They also sometimes must shift efforts to deal with
industry issues, such as the spread of the glassy-winged sharpshooter,
which carries a grapevine-killing disease.

As just one example of shrinking departments, the San Joaquin County
Agriculture Commissioner's Office employed 65 people in 1960. It now
employs 49.

The decline is noticeable. San Joaquin County Farm Bureau Federation
President Mike Robinson, who grows alfalfa and other field crops in
the Delta, says that although he attends Hudson's educational
seminars, county inspectors have never visited his fields.

"We really don't see them a lot," Robinson said.

Farm worker Mario Murillo, a 15-year veteran of ranches from Murietta
to Marysville, said he has never met an inspector from a county
agriculture commissioner's office.

Hudson, Carl and others also blast the system for reporting pesticide-
related illness, which requires doctors to report to the
commissioners' offices any potential pesticide cases. But this rarely
happens.

State records show that only one illness in five is reported,
Department of Pesticide Regulation spokesman Glenn Brank said. That's
why department agents comb the state's worker's compensation files to
glean other cases.

Farm workers and their advocates say they are actively discouraged
from reporting illnesses and often are punished when they do. A worker
named Steven, who did not want his last name published for fear of
retribution, said several of his co-workers were fired recently after
complaining about horrible working conditions at a Marysville farm.

The realities of migrant life are another factor. Many farm laborers
entered California illegally and fear deportation more than pesticide
exposure. Most speak no English and have no vehicles to drive
themselves to doctors. They almost always lack health insurance.

"Workers don't know how to report it," said California Rural Legal
Assistance paralegal Luis Rivera, whose territory includes San Joaquin
and Stanislaus counties. "When you go to a labor camp, you will not
see a public telephone, you will not see public transportation."

None of the workers interviewed last week at a Yuba County ranch had
ever heard of an agriculture commissioner, and all said they thought
their only recourse if they got sick was to tell the patron -- their
boss. They said that wouldn't do any good.

Tulare County's Martinez, the worker permanently injured by misused
pesticides, said the same thing.

"You know, I was thinking about my check," he said. "I wanted to keep
working."

New regime

Mary-Ann Warmerdam, Gov. Arnold Schwarzenegger's new chief of the
Department of Pesticide Regulation, says she has begun cracking down
on weak or inconsistent pesticide enforcement.

In the past 10 months, Warmerdam -- a former lobbyist for the
California Farm Bureau Federation -- has overhauled the state
guidelines for pesticide enforcement, reminded agriculture
commissioners that they can call in district attorneys for serious
cases and has begun overseeing county-specific plans designed to
address specific enforcement problems.

The commissioners have caught Warmerdam's drift. Hudson says he has
stepped up enforcement, as has Gudgel. Both commissioners are
developing improvement plans for their pesticide enforcement with the
state.

Legislators also are doing their part. Last year, Schwarzenegger
signed legislation sponsored by Kern County's Sen. Dean Florez, a
Democrat. The law boosts maximum fines for pesticide violations.

Now Los Angeles-area Sen. Martha Escutia, also a Democrat, wants to
require agriculture commissioners to act more like Carl in Sacramento
or Solano's Howard. Her bill would require commissioners to impose a
fine whenever a worker's health or safety is threatened.

The legislation is stalled, because Assemblywoman Barbara Matthews, D-
Tracy, chairwoman of the Assembly Agriculture Committee, favors a
compromise bill that preserves some discretion for the commissioners.
Assembly Speaker Fabian Nunez, whose parents were farm workers, has
taken an interest in Escutia's bill, which is expected to re-emerge in
the next few weeks.

Farmers are not happy with the shift toward stronger enforcement. Farm
Bureau President Robinson called the new focus "warped."

"It's a punitive type of thing rather than rewards," Robinson said.
"If you do your education, and everybody gets it right, you shouldn't
have to write fines."

Salomon's quaking limbs, his dialysis machine and the oxygen tank he's
tethered to remind him every moment that growers don't always get it
right. And when they don't, even "justice" amounts to a few dollars
out of their pocket. No amount of money will free Salomon from his
little room.

"I live only in suffering," he said. "I am now just a piece of
history."

Record staff writer Karina Ioffee contributed to this report.

Contact Capitol Bureau Chief Hank Shaw at 916 441-4078 or
sacto@recordnet.com