AgMart decision exposes loopholes in NC pesticide laws

By Carol Brooke, NC Justice Center

In what is becoming a dismal refrain, AgMart Produce, Inc. is again “off the hook” for hundreds of alleged pesticide violations that put workers, consumers and the environment in danger. A state Administrative Law Judge recently recommended throwing out most of the fines levied against AgMart Produce, Inc. by the North Carolina Department of Agriculture. His reasoning: though AgMart broke the law, the company could not be held accountable because of loopholes that unfairly benefit certain violators.

The North Carolina Pesticide Law contains several exceptions for persons who apply pesticides for agricultural purposes. First, agricultural pesticide applicators may only be fined if they willfully violate the pesticide law: simply put, the person must be aware of the law and deliberately violate it anyway.  In several instances, Ag-Mart admitted that it did break the law, but said it just didn’t mean to. Though the judge found that Ag-Mart broke North Carolina law on numerous occasions, he was only able to recommend a fine for 17 of those violations where the evidence was so overwhelming that it was clear the violation was willful.

Even when that high standard is reached, the state Pesticide Board may only fine these violators $500 per violation.  Every other pesticide violator is subject to a $2,000 fine.  These low caps mean that AgMart’s total fine may be only $6,000 for its deliberate burning of pesticide containers, harvesting of tomatoes before it was safe to do so, and failing to provide pesticide decontamination for workers facilities onsite.

Farmworkers bear the brunt of the defects in our pesticide laws. Three current and former AgMart workers, clients of the North Carolina Justice Center, attempted to intervene in the state’s case so their interests could be considered, but their petition was denied.  Unfortunately, a recent North Carolina Supreme Court decision makes it even harder for those most affected by the outcome of regulatory actions brought by state agencies to participate in the litigation process. The AgMart case came about because of the shocking birth defects among children of AgMart employees who say they were sprayed in the fields, but not one worker’s testimony was included in the deliberations.

Another loophole in the law is that those farmworkers who are willing to step forward to report an employer’s violation cannot have their names kept confidential by the Department of Agriculture. If they do make a report and are fired by their employer, they are not protected by North Carolina’s anti-retaliation law. This is not the case if farmworkers (or other workers) make a complaint about other types of health and safety violations.  The Occupational Safety and Health Division of the state Department of Labor maintains the confidentiality of complainants’ names, and retaliation is prohibited under state law.

Finally, employers are not required to keep records of when workers reenter sprayed fields. This omission meant AgMart could hide behind inaccuracies in the records it did keep and escape a much larger fine.

North Carolina is long overdue for a modernization of its pesticide laws. The General Assembly responded swiftly to the Hamlet poultry plant fire of 1991 with reforms of our occupational safety and health laws. We are at a similar crisis point in our regulation of pesticides.

When the General Assembly returns to Raleigh in May, lawmakers should make fixing the AgMart loopholes a top priority. An excellent way to start would be to pass comprehensive reform legislation like House Bill 1818, “The Agricultural Family Protection Act.” Until lawmakers get serious about putting bad actors like AgMart on the hook for their dangerous and unlawful practices, innocent workers and their families will continue to pay a high price.

Carol Brooke is a Migrant Worker Attorney at the North Carolina Justice Center