Sunset II

At long last, the Reagan revolution has reached the Texas Department of Agriculture (TDA). Dominated through most of the 1980s by populist politician- turned radio commentator Jim Hightower, the agency had little chance to deregulate when everybody else was doing it. Now, under the direction of former Texas House member Rick Perry, the TDA is sunsetting all its rules with the stated intent of keeping "only those regulations that protect the public and natural resources in the least intrusive manner possible," according to an agency press release.

Well, Perry says it's not really deregulation. He claims that Sunset II, as it's been named, is more of a house cleaning - an idea that came up when the entire agency went through the sunset process before the Legislature this session. "If you're looking for a definition of what is too intrusive, it's when the technicalities of compliance overshadow what you're trying to achieve," he explains. "When the costs start being more than the benefits."

But there are a number of people who fear that when Perry, who took office in 1991, talks about costs and benefits, he's talking about the bottom line for the agricultural industry, not for consumers' health, farmworkers' safety, or environmental controls. They say that Perry's aim may be off in terms of what really needs to be corrected at the TDA. At the same time, Perry directs his underlings to go through the rulebook and cross out the laws they don't think are necessary, the regional Environmental Protection Agency (EPA) office in Dallas is taking a closer look at the TDA's questionable pesticide enforcement record.

It may seem odd that the TDA, which is responsible for promoting the agriculture industry, would also have the task of protecting the interests of farmworkers and consumers. When it comes to things like labeling laws and safety regulations, those interests are often at odds, and the State of Texas has dealt with similar conflicts by splitting responsibilities between different agencies. Many of the regulations protecting Texas' 300,000 or so farmworkers, for example, are administered by the State health department. Pesticides, however, came under the TDA's purview in the late 1980s because Jim Hightower took it up as a cause, pushing for the 1987 Agricultural Hazards Communication law, which sets out a process for notifying farmworkers about pesticide applications and hazards.

"The TDA traditionally has been an agency that spoke for, represented, the interests of agriculture producers in state government," says Bill Beardall, an attorney with Texas Rural Legal Aid, a group which often represents farmworkers. "There was a brief period under Jim Hightower when the Department of Agriculture also took into account, represented, and presented the interests of consumers and farmworkers, while continuing to promote the agriculture industry. Perry's administration has represented a restoration of the traditional role of representing the interests - and working on behalf of - the agricultural producer."

Perry, who pushed unsuccessfully for the repeal of the 1987 notification law this last legislative session, says Beardall is wrong - that he is good at balancing competing interests, just as he referees conflicts between his two kids. He sees no problem with the agency's conflicting mission - it's a non-issue promoted by what he calls "the usual cast of characters." Perry pledges that his goal in sunseting all the TDA's regulations is efficiency, even though his agency has sidestepped a challenge to promise that pesticide regulations won't get weakened in the process.

"The purpose of Sunset II has not, is not, and will not be an attempt to weaken regulations," asserts TDA spokesperson Lori Woodward. "We're making sure that the way we carry out our legislative mandates are efficient."

When asked for examples of "intrusive" or inefficient rules, Perry cites a TDA requirement that butter and margarine packaging conform to certain sizes. He talks about inspections of gasoline pumps - should the agency do it annually? Every three years? Well, he says, with the new digital readers, gas pumps are more accurate than they used to be. "It became apparent to me that we had way too many folks checking gasoline pumps who could be doing something else out there," he says.

But gasoline pump inspections can be changed - have been changed - without tossing out all the TDA's rules. Consumer advocates, farmworkers, and environmentalists suspect that Perry has a different agenda - one he pursued in the Legislature as a House member in the 1980s and as head of the TDA this past session - and is using the sunset review to get what he wants. To a person, they say the agency has stopped giving out information freely, instead forcing them to request ordinary public documents formally through the state's Open Records statute (a charge the department admits to and is trying to remedy, Woodward says). Consumer advocates also point to Perry's lobbying efforts, and to a number of critical studies by the Texas Center for Policy Studies (TCPS), an Austin-based environmental research group, as proof of his intentions.

As much as Perry talks about butter and gasoline in what many consider a trivializing of his deregulation efforts, he's paid quite a bit of attention to pesticide rules during his public life. His campaign contributions list is riddled with big donations from chemical companies that manufacture pesticides. As a member of the House of Representatives, Perry is credited with the creation of the Agriculture Resources Protection Authority (ARPA), a governor-appointed board which was seen at the time as a weakening of Hightower's authority to regulate pesticide use. Although Woodward says Perry took no strong stand on the issue this session, activists claim the commissioner pushed behind the scenes for HB 2167, an unsuccessful bill which would have disbanded the ARPA and restored the board's pesticide oversight authority to the TDA.

Perry did push for quite a few pesticide bills openly this session, and most of those that didn't pass on their own were incorporated into the sunset bill which reauthorized the agency. A measure to cut back annual pesticide registration requirements to every two years was added to the sunset bill, as was language from HB 1113 exempting certain pesticides from registration entirely. Perry also made a move to consolidate all pesticide, herbicide, and workplace chemical laws under the jurisdiction of the TDA with HB 2479 and SB 1031, both of which failed and were not included in the sunset bill.

Initially elected to the House as a Democrat from Haskell, Perry was prone to stand with business interests on such issues as workers' compensation reforms. In 1989, he switched to the GOP and was characterized in newspapers across the state as being more an advocate for farm producers than for consumers - an image he no doubt furthered with his 1990 campaign attacks on Hightower as a leftist.

Still, Woodward tries to reassure the people who fear that Perry is trying to pull something over on the state's consumers. "With pesticide rules, any changes proposed or made will be in a very open process," she says, adding that the agency plans public hearings across the state and will publish its intentions in at least three state newspapers, as required by law.

Last March and April, the TCPS released several studies that they say show TDA's lack of commitment to enforcing pesticide regulations. Citing the TDA's own quarterly reports, as well as presentations to the state Sunset Commission, the EPA, and the ARPA, the TCPS study shows that as the agency's budget for pesticide programs has nearly doubled since 1989, the number of investigations and penalties has dropped dramatically since Perry took office in 1991 (see chart). In a number of cases, the TDA gave out conflicting information about its activities (see chart), leading the TCPS to conclude that any numbers coming from the agency are suspect.

"The numbers suggest that all of TDA's numbers on enforcement - if not all of TDA's statistics - must be viewed with the knowledge that TDA controls the information it provides," writes Mary Kelly, executive director of the TCPS, in the introduction to her March 30, 1995 study.

Perry says he does not contest that his agency has given out bad numbers, but he blames it on Hightower. "In 1991, this agency had as its computer system a mainframe 1976 computer. I'm talking about a dinosaur - we kept this thing in a dark room and chucked raw meat at it," he says. "Pesticide information was written out in longhand on 3x5 cards." During the next two years, the agency got a new computer system, which led to such disparities in the numbers given out. Everything is just fine now, Perry says.

But not everyone agrees. Murray Walton is a former predator control employee of the TDA who left the agency last January, frustrated over the TDA's methods of keeping and distributing information. Walton, who now trains people in pesticide application for CPN Educational Services, says he holds no grudges against his former employer. He's happy where he is. He doesn't even think Jim Hightower and Rick Perry ran things all that differently. But the TDA's record keeping under Perry, he says, is nothing to brag about.

"Reporting to the EPA, we weren't getting good data out," he says. "Some people didn't appreciate the requirements of the law, didn't care whether the data was good or not. When you get 10 printouts with the same mistake, well, you'd think people would catch on." Although it was a problem with the computer department, Walton says, when he complained to his supervisors, he was offered the chance to resign. "The administration of the agency didn't deal with it," he says. "I was tired of working weekends and extra hours to make up for other people's mistakes."

According to TCPS, the TDA prosecuted only one-third of the pesticide violation cases that came before it in 1994, where some sort of human exposure to pesticide was involved. In 1990, under Hightower, that number was 64%. When asked, Perry can recall only one case during his tenure when the agency punished someone for poisoning people. In 1992, he says, the agency suspended an aerial applicator's license for a year - he was a repeat offender. "That's taking that person's ability to make a living away from him," he says, explaining why such a suspension is tough punishment.

But farmworkers' advocates are furious that the agency seems to give more consideration to a person's livelihood than to workers' lives. Texas Rural Legal Aid publicized what they say are just three of many examples of pesticide poisoning they allege the TDA failed to investigate or prosecute properly. In one cited incident on May 21, 1991, 15 people working in a canteloupe field were allegedly poisoned, five needing medical attention. They had gone to work in a field that had been sprayed a day earlier with two pesticides - Vydate and Cygon 400. According to the TDA, labels on both pesticides state that workers should not "enter treated areas without protective clothing until sprays have dried." Vydate has a 24-hour re-entry period, and Cygon's is four days.

"The workers were allowed into the field before the designated re-entry time, thus exposing them to these two pesticides. No protective clothing had been issued, nor had the workers been informed of the danger of pesticides or the time restrictions before re-entry," reads the TCPS report. It goes on to say that at least one worker in that field reported that on that same day, they also were sprayed by a plane that was applying Guthion, another pesticide, on a cotton field directly to the north.

When the TDA came in, investigators say, they couldn't get the workers' medical records and couldn't prove that the Guthion drifted. The farm, Starr Produce, claimed they told the workers not to go into the field, but that the workers went anyway. Upon hearing this, the agency reached the following conclusion: "The Committee recommended issuing an advisory letter to Starr Produce based upon the information that indicates the workers entered the field on their own accord and therefore were not legally present in the cantaloupe field. In that instance, Starr Produce would not be liable for having failed to provide protective equipment. The Committee also recommended dropping the drift violation since the department could not prove the chemical drifted given the lab results."

Farmworkers' advocates found this ridiculous. "TDA chose to believe that the workers went in on their own accord. TDA ignored the testimony of the workers as well as the implausibility of supposing that the workers would go into the field without being told to or without being promised to be paid to do so," reads the TCPS report.

In the other cases listed by TCPS, three female farm workers got sick in 1993 after hoeing cotton downwind from a crop duster in West Texas; in 1990, 18 farmworkers near Hereford reportedly suffered repeated exposure when nearby fields, as well as the field they were working on, were sprayed. In both cases, the TDA decided it could not prove exposure had taken place. In the incident involving the three women, the TDA says that the wind was blowing between zero and three miles an hour, and that this was not sufficient to send a pesticide mist 528 feet to where the women were working. And as for the Hereford case, the TDA couldn't find any records of pesticides being applied that day, and so concluded that none had been.

These cases, says Bill Beardall, are typical and common. "The TDA is supposed to investigate complaints, issue penalties, fines, and corrective action to prevent those kinds of actions from occurring," he says. "They are doing a terrible job."

Dolores Alvarado, an attorney with the TDA, says the agency has all but abandoned criminal actions against pesticide lawbreakers because it's hard to get much money out of such prosecution. Instead, she says, they rely on civil penalties.

Perry states that the TDA makes absolutely no distinction between farmworkers or anyone else when determining which cases to pursue. In fact, Perry brags that the agency has handed out "record" penalties lately, and that the agency handles all complaints equally. And while the TDA did secure a $120,000 civil penalty in May - an agency record - against a Wisconsin firm accused of selling pesticides without a license in Texas, in fact, according to the TCPS studies, fines dropped from $69,000 in 1989 to $31,000 in 1994. In 1988, the agency doled out 860 days worth of suspensions. In 1994, there were none.

The TCPS also charges that the TDA is breaking the law by not properly monitoring the use of predacides - poisons used by ranchers to control predators like coyotes. Most common are Compound 1080 (sodium fluoroacetate) and M-44 (sodium cyanide), both of which are highly toxic and banned under federal law, but are used under special exemption agreements in Texas. As part of those exemptions, the TDA is required to inspect every user every year. The M-44 "Use Restriction Bulletin" states this pretty clearly: "M-44 devices and sodium cyanide capsules shall not be sold or transferred to, or entrusted to the care of any person not supervised or monitored by the Texas Department of Agriculture... Supervisors of applicators shall check the records, warning signs and M-44 devices of each applicator at least once a year to verify that all applicable laws, regulations and restrictions are being followed." Similar instructions are part of the Compound 1080 use restrictions.

Again, the TCPS has released a study concluding that the TDA under Rick Perry does not do its job. "The use of these highly toxic pesticides by private and commercial applicators is not monitored as required by law and as agreed to by TDA," reads the TCPS summary. "Moreover, because of TDA's poor record-keeping and reporting, for some years, TDA may not even be able to prove how many inspections it did or what the results were."

Despite what the law says, the agency doesn't really have to check each applicator every year, claims Woodward. It's an accepted government practice, she says, to inspect people at random. "Basically what we use is random selection," she says. "TDA doesn't have enough personnel to go out and check every person, every time. But the knowledge that we're out there checking is a regulatory tool."

And as far as the bad numbers go, it's part of that computer problem, she says. "We're not trying to hide anything. We've stood up and said, `These numbers are not right - you're right.'"

On April 25, 1995, eight consumer, environmental, and farm worker groups sent a letter to Jane Saginaw, administrator of the Environmental Protection Agency regional office in Dallas, asking that the EPA take over TDA's pesticide enforcement activities, and investigate the department for irregularities involving predacides. According to EPA spokesperson David Bary, the EPA's pesticide enforcement staff has been investigating the TDA "since the day we received [the letter]."

"Under our work plan with the EPA, the EPA comes in and inspects us twice a year, every year," Woodward says. "We've opened our records to them and said, `Please come take a look.' We don't have anything to hide."

Bary says the EPA will probably release the results of the investigation - and any ensuing actions - the week of July 4. If the EPA finds that the TDA has been negligent in its enforcement duties, it could indeed take pesticides out from under the TDA's authority, which would be just fine with Perry's critics.

"He really only pays attention to other constituencies [aside from the agriculture industry] to the extent that he has to politically," says Bill Beardall. "We were never very happy with Hightower's level of enforcement... however it has become much worse under Perry, nearly non-existent." n