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 3×5 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
This article appears in June 30 • 1995 and June 30 • 1995 (Cover).