RALEIGH NEWS & OBSERVER January 4, 2007
Ruling benefits Ag-Mart
The state has lost a key ruling in its historic case against Ag-Mart and can fine the tomato grower no more than $500. The state had sought $184,500, its largest pesticide fine ever. Ag-Mart is accused of exposing employees to toxic pesticides, but administrative law judge Beryl Wade ruled in December that more than two-thirds of the 369 pesticide law violations the produce company faces are invalid. Wade's ruling is a recommendation. Final authority rests with the state Pesticide Board, a seven-member group appointed by the governor. But the ruling represents a blow to the high-profile case. "We've known this all along," Leo Bottary, a publicist hired by Ag-Mart, said Wednesday. "The information the state is using to draw the conclusions they're drawing doesn't make any sense." State agriculture officials say that they will continue to pursue the case and that they will ask the Pesticide Board to ignore the judge's recommendation. "If [pesticide investigators] had not had the evidence, they would not have gone forward," state Agriculture Commissioner Steve Troxler said. "The whole case has not been heard. We're going to stay with it." The Pesticide Board doesn't meet again until mid-February, and its members had not been notified about the ruling, said Jim Burnette, head of the Agriculture Department's pesticide section. Board member Benson Kirkman, a former Raleigh City Council member, said Wednesday he was shocked at the judge's decision. He said the board would have to rely on the advice of the Attorney General's Office as it decides what to do next. Florida-based Ag-Mart sells tomatoes under the brand names Santa Sweets and Ugly Ripes at grocery stores across the country. The company, which employs several hundred seasonal workers, is charged with forcing employees to work in fields freshly sprayed with pesticides, which can damage the nervous system and cause birth defects. It also is charged with harvesting tomatoes too soon after spraying, violating rules designed to keep consumers safe from pesticide residue in their food. State officials have found no evidence, however, that Ag-Mart's tomatoes are unsafe to eat. Agriculture officials in Florida and New Jersey have levied similar charges against the company. Those cases are pending. A study by the N.C. Department of Health and Human Services also found a possible link between pesticide exposure and the births of three deformed babies to Ag-Mart workers. The Pesticide Board decided last summer that the case was too complicated for its members to handle and asked the Office of Administrative Hearings for a recommendation. Now, Wade has agreed with Ag-Mart's argument that more than 275 violations -- virtually all of those cited as endangering employees -- were based on a misinterpreted document and should be dismissed. State pesticide investigators looked at Ag-Mart's work records, which show where workers were picking tomatoes, and spray records, which document the fields where pesticides were applied. Those documents, when cross-referenced, often placed workers in fields less than 48 hours after chemicals were sprayed, even though the fields were not yet safe to enter. Ag-Mart, however, says it doesn't keep exact records of where employees work. It says the work records provided to the state were only educated guesses about the fields where work occurred. They say they made that clear to the state before they handed over the records. The records, for instance, show one worker laboring in 18 fields scattered over two counties on a single day. Ag-Mart officials argue that's simply not possible. The company also says its fields are so large that employees could be working in one area while pesticides are being applied dozens of acres away in the same field. The state also lost on another count. All but about 60 of the violations it charged Ag-Mart with occurred before September 2004. In that month, the board changed its longtime practice of fining farms no more than $500 total, instead deciding to fine $500 for each violation. Wade said that standard could not be applied to violations that occurred before the board changed its policy. The ruling was one of Wade's last acts as an administrative law judge. She retired this week.
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