Immigrant Farmers Challenge Ability Of State To Control Pesticide Use

posted in: December 1999 | 0

“In many cases, the farmers are not literate in their own language, much less English. The ability to handle things safely depends on the ability to read labels or to be supervised.”
-Barry Brennan, Pesticide Coordinator, University of Hawai’i at Manoa

On Tuesday, October 14, 1997, Mexican field worker Valentin Solis was picked up in Hilo by Korean farmer Kap Dong Kim to work on Kim’s ginger farm in Wainaku on the Big Island. Afterward, Solis spent that day putting ginger on a drying rack. Wednesday, he loaded them in boxes and weighed them.

On Thursday, one of Kim’s workers took Solis to the ginger field located about a mile away from the packing house. Solis was given a pesticide tank and told to spray the rows of ginger plants. Kim was having a serious problem with nematodes (root worms) attacking his ginger. Outfitted in a long-sleeved shirt, long pants, rubber boots, and plastic gloves, Solis set about his job. Before beginning, he noticed the pump to his tank which he would carry on his back – was leaking. According to testimony Solis gave to the state Department of Agriculture, Kim’s worker told him “No, it’s not strong.” His only instructions were to spray, “li dis between ginger.”

Solis started spraying around 8:30 a.m. When the pesticide ran low, Kim brought water and mixed a new batch. The entire time, Solis says, his tank leaked the milky pesticide, soaking the back of his shirt.

After about six hours of spraying, he started to feel ill. He couldn’t move his tongue. His stomach hurt. He couldn’t see, and he had diarrhea.

That afternoon, another newly hired worker whom Solis knew only as Lalo took Solis to the Hilo Medical Center Emergency Room. The attending physician, Dr. Linda Dolan, found Solis to be suffering from “weakness, decreased level of consciousness, hypersalivation, intestinal pain, vomiting, diarrhea, muscle fasciculation’s and bradycardia [slow heartbeat rate].” Dolan concluded that Solis had acute organophosphate poisoning; Nemacur was the suspected culprit.

Solis spent two days in the Intensive Care Unit and was released on October 19.

“Sometimes now, I have some problems speaking. I did have stomach pains once after being released from the hospital. My head feels ‘empty’ sometimes now… it’s a funny feeling,” Solis told DOA officials.

As a result of this incident, Kim is now the defendant in a number of lawsuits. Solis has collected documents from the DOA to build a civil case against Kim. The U.S. Environmental Protection Agency has filed a complaint in federal court. And the U.S. Department of Justice brought criminal charges, to which Kim has already pleaded guilty.

The Big Picture

Kim is not the lone violator. In March 1999, the EPA cited another Big Island farmer – a papaya grower – for violating the Worker Protection Standard under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). He faces fines up to $11,000. The farmer was charged with ten violations, including allowing workers to enter areas treated with pesticides, failing to provide safety training, and failing to post pesticide safety information in the workplace. He had received previous warnings from state DOA officials for similar violations.

As these two incidents suggest, Hawai’i agriculture is experiencing growing pains. The state’s transition from large, monoculture plantations to small diversified farms has spawned a host of new challenges to state regulatory agencies, ranging from designing new leases to maintaining deteriorating irrigation systems.

The state Department of Agriculture’s Pesticide Branch is having an especially hard time.

“Trying to accommodate changes, to deal with the problems, is somewhat frustrating to someone who has dealt with plantations. Now there are large numbers [of farmers and farm workers] who don’t understand regulations or respect authority. We play cat and mouse trying to develop trust,” says Bob Boesch, manager of the Pesticide Branch.

Since the closing of most plantations, many new, small, family-run farms, like Kim’s, have sprouted. So many, that the Department of Agriculture’s handful of pesticide inspectors have difficulty locating them, let alone inspecting and regulating them.

“It’s been a problem for at least three or four years,” Boesch says. “We’re not making many inroads. I wish we could do more.”

The result of this transition has been to place toxic chemicals in the hands of a largely uneducated and often illiterate work force that is cultivating Hawai’i’s agricultural products.

The Department of Agriculture’s Pesticide Branch certifies restricted pesticide users, conducts field inspections, investigates misuse, licenses dealers of restricted pesticides, and assists the Department of Health in sampling pesticide products and soils to determine health effects. With all of these duties, and its limited resources, educating every farmer is simply beyond the branch’s reach.

What’s worse, while the number of farms is increasing, the number of certified pesticide applicators is decreasing. In the most recent Pesticide Branch report to the U.S. Environ–mental Protection Agency, the number went from 1,579 at the end of March to 1,551 by the end of June.

The field work force has shifted as well. As in the old plantation days, many speak little or no English. However, there has been a large Mexican influx, according to Boesch, and they are often hired as they are in the mainland. Farmers go to town to pick up a few workers for the day, as opposed to the long-term, community style of plantations.

Many farmers also have trouble understanding or speaking English and lack respect for the chemicals and the institutions in–volved in regulating them, Boesch says. “They make business decisions, rather than health decisions. They weigh the chances of getting caught. It’s a conscious wrongdoing.”

The state’s shortcomings have human costs, as the case of Valentin Solis illustrates.

Busted!

Russell Charlton, manager of the state Department of Labor and Industrial Relations’ Occupational Health Branch first learned of the pesticide poisoning incident on Halloween day, 1997. The circumstances surround–ing the incident – the lack of training and proper gear, for example – suggested viola–tions of both state and federal laws on pesti–cide use.

On November 12, Charlton sent Kim a letter asking Kim to investigate the allegations of violations, make any necessary corrections, and provide a written report to Charlton by November 17. Charlton received no reply and on November 17, he notified Boesch.

Boesch already knew Kim from previous violations. On July 3, 1996, Kim, who was not certified to use restricted use pesticides, had used farmer Dayne Mende’s certification to purchase the restricted use pesticides Vydate L and Gramone Extra. This violates Hawai’i Pesticide Law, as well as the labels on both pesticides, which state that restricted use pesticides may be sold to and used only by certified applicators. On February 7, 1997, a DOA inspector found four gallons of Gramone Extra at Kim’s farm.

On March 5, 1997, Boesch sent Kim a notice warning him that buying and using restricted pesticides without being a certified applicator was against the law and that if he continued, he could be subject to fines or even jail time.

This warning apparently had little effect. Between July 31, 1996 and the Solis incident in October 1997, Kim obtained two more gallons of Vydate L from a friend, Young Gu Choi.

On November 25, DOA pesticide specialist Glenn Sahara interviewed Solis and Dolan. On November 26, Sahara took Kim’s testi–mony. Kim told Sahara that Vydate L, not Nemacur, was used the day Solis got sick. He admitted that he had no license to use the restricted pesticide, and said that he had obtained it from Young Gu Choi. Kim kept no records of pesticide use and his workers received no training, he told Sahara.

Vydate L’s label states that it maybe fatal if absorbed through the skin or inhaled. Applicators are to be equipped with “respirator with an organic vapor-removing cartridge,” among other things.

Kim told Sahara that he would not use Vydate L again until his brother Joseph Kim got a license. (Joseph speaks better English than Kap Dong, according to DOA records.) He suggested that Solis’ tank may have leaked because its top was not screwed in tightly. One of Kim’s employees who had worked with Solis on the day of the incident, Gilberto Diar, told Sahara that he, Lalo, and Solis all had fully operational backpack sprayers that day.

On November 28, 1997, Sahara visited Kim’s home to see the pesticide Solis used. Kim led Sahara to a one-gallon container of Vydate L stored in a locked area under the house. While there, Sahara also found 50-pound bags of the restricted chemical Dithane M-45, a product not allowed for use on ginger.

DOA investigators determined that Kim and his brother were unaware of federal Worker Protection Standard Laws. These require employers to provide a Central Noti–fication Site, maintain a decontamination site with supplies within a quarter of a mile of the field, train workers every five years, post notice of application signs or oral or written warnings, provide personal protection equipment and transportation to the hospital in case of poisoning.

Kim provided none of these.

In December 1997, the DOA issued a Notice of Finding of Violation and Notice of Opportunity for Hearing. The notice proposed that Kim be fined in the amount of $4,500.

Making a Federal Case

The Pesticide Branch receives each year reports of seven or eight high-level incidents such as Solis’. A high-level incident involves death, serious injury or any pesticide-related illness involving children or three or more people. It also includes environmental effects (pesticide residues in drinking water; air contamination requiring evacuation; lands being rendered unusable for a year or more because of pesticide use; the death of ten or more birds or mammals, 25 or more fish, or any endangered species).

The U.S. Environmental Protection Agency has a cooperating agreement with the DOA, which allows the DOA to investigate and enforce federal pesticide laws. The EPA provides federal funds to assist in that effort. Solis’ case stood out among other high-level incidents because it involved a lack of worker protection, something that the EPA has been trying hard to control.

On July 21, 1998, Boesch referred the Solis case to Pam Cooper, Pesticides Section Chief for the EPA in San Francisco, instead of allowing the state attorney’s office to handle the matter as it usually does. Boesch hoped that EPA could “make a bigger splash” and grab the attention of the local agriculture community.

“These cases are being referred to you to provide U.S. [EPA] Region IX case developers first hand experience in developing, issuing, and closing violations of the Worker Protection Standard; to determine the adequacy of State inspection procedures and forms; to demonstrate cooperation and coordination of State and Federal agencies in cases involving high priority programs and cases that represent significant risks; to provide an opportunity for Region 9 staff to handle situations where the respondents are independent farmers; and to gain a deterrent value associated with prosecuting cases at the Federal level,” Boesch wrote.

EPA took the case. An investigation by the EPA’s National Enforcement Investigations Center found that Kim had lied to state officials about the use of Vydate L the day Solis got sick. As suspected by Dr. Dolan, Solis had actually been spraying Nemacur 3, another highly toxic restricted use pesticide that requires a chemical-resis–tant protective suit and headgear for use. The lie was revealed when Lab, Solis’ co–worker, showed investigators a copy of the label of the pesticide they used the day Solis got sick. It was Nemacur. He also told officials that when Vydate L is mixed, the liquid is green, and that Nemacur, when mixed, is white. Solis and Lab testified that the pesticide they used was a milky color. Nemacur is a trade name for fenamiphos, an organo–phosphate nematicide used on crops such as tobacco, turf, bananas, pineapples, and citrus.

Studies of animals and humans have shown that Nemacur is highly toxic to a variety of mammals, birds and fish, and affects the central nervous system, heart, lungs and thyroid.

Willful Lying

To federal officials, Kim’s conscious wrong–doing was inexcusable.

Kim focused Pesticide Specialist Sahara’s attention on Vydate L and away from Nemacur 3…. Kim knew that Vydate L was authorized for use on ginger root, while Nemacur 3 was not. Kim intended to influence the conduct and actions of [Sahara] and to mislead him…,” according to documents filed by attorneys Steven S. Aim and Craig Nakamura of the U.S. Department of Justice, which prosecuted the criminal case against Kim.

Kim was indicted on May 20, 1999, in Honolulu. Kim knowingly used Nemacur in a manner inconsistent with its labeling, including applying it to ginger root, a use not authorized by the label, and failed to comply with worker protection required by its label, which resulted in Solis’ acute pesticide poisoning, according to the indictment. Kim was also charged with using Nemacur without being a certified applicator or having one to supervise its use and with knowingly and willfully lying when he attested to state officials that the pesticide used by Valentin Solis was Vydate L.

Kim pleaded guilty to these charges and on September 13, 1999, the U.S. attorney filed a Memorandum of Plea Agreement acknowledging Kim’s admission of guilt. For improperly using Nemacur, Kim faces up to 30 days in prison and a fine of up to $5,000. For trying to conceal its use from officials, Kim could go to prison for up to 5 years and be fined $250,000. He will be sentenced on January 24.

— Teresa Dawson

Volume 10, Number 6 December 1999

Leave a Reply

Your email address will not be published. Required fields are marked *