Shrugging Off Oversight BY JAMES CULLEN FIVE YEARS Al1ER he tagged thenAgriculture Commissioner Jim Hightower with an oversight panel to review pesticide rules, Rick Perry, heading his own Department of Agriculture, said the state no longer needs an Agricultural Resources Protection Authority looking over his shoulder. Perry was a state representative in 1989 when he led the fight to disarm Hightower, who was aggressively enforcing pesticide regulations. Perry, who switched to the Republican Party, narrowly defeated Hightower in the 1990 election with assistance from major agribusiness and pesticide applicators and TDA figures reviewed by the Sunset Advisory Commission staff show the agency’s enforcement efforts have dropped off significantly since then. ARPA, which has nine ex-officio members from state agencies and land-grant universities and two public members appointed by the governor, was founded to coordinate pesticide regulation policies and programs of TDA, the Structural Pest Control Board, the State Soil and Water Conservation Board, the Agricultural Extension Service, the Department of Health and the Natural Resources Conservation Commission. The panel is supposed to meet quarterly, but Perry, its statutory chairman, refused to call meetings for more than a year until a majority of members petitioned for a meeting last August. The Sunset staff report found plenty of reasons TDA pesticide regulation needs oversight: The Structural Pest Control Board, which regulates commercial pesticide applications in homes and businesses, has one-fourth of the TDA’s budget for pesticide control and regulates fewer applicators, but it investigated twice as many complaints last year. In fiscal year 1994, TDA spent $6.7 million on the regulation of pesticides, a 52-percent increase since Perry took office in 1991. During that time, the number of enforcement actions dropped 22 percent, to 114. In the same period, the Structural Pest Control Board, with $1.6 million budgeted in 1994, conducted 290 enforcement actions, a 15-percent increase. Between 1991 and 1994, TDA assessed 121 administrative fines. During the same period, the Structural Pest Control Board assessed 302 fines. While TDA has the responsibility of enforcing the state’s Rightto-Know Law, which requires employers to notify agricultural workers of pesticide use, TDA investigations of complaints have de creased 53 percent in the past year and resulted in three findings of noncompliance in 1993 and none in 1994. Advocates for farm workers say they no longer bother to file complaints because of the TDA’s apparent lack of concern. Answering the Sunset staff report December 14, Perry said his department should not be compared with the Structural Pest Control Board. “The violations that the Texas Department of Agriculture looks at, I would consider more major violations,” he said, although officials of the Structural Pest Control Board said their enforcement actions cover the range of activities, including misapplication of pesticides. When Rep. Patricia Gray, a Galveston Democrat on the commission, asked Perry whether he had the authority not to call the meetings, Perry noted that a majority of the board could and did call meetings; although he said the meetings did not amount to much. “I think the Texas Legislature in the next session will address whether or not ARPA is going to maintain its viability,” he said. Max Woodfin, who worked in Hightower’s TDA and was named by Gov. Ann Richards to be ARPA’s consumer representative, told the commission he waited more than a year for Perry to call a meeting before he finally circulated a petition. In two meetings called by members, he said, ARPA has addressed several important issues that the TDA has ignored. “Perhaps just as important we have provided a forum for all sides to address the state,” he said. Perry has attended neither of those meetings. Outside the hearing, Perry told reporters his agency’s enforcement is adequate and does not need to be tampered with. “If I were a member of the Legislature, I would proba”It’s probably met a half dozen times in the last five years and quite frankly hasn’t done one thing to impact, either negatively or positively, pesticide use in the state of Texas.” The Sunset staff has recommended expanding ARPA with places for a pesticide applicator, a chemical industry representative, a farm worker and an environmentalist in addition to the current consumer and producer representatives named by the governor and the nine ex-officio members. The governor would name the chair. ARPA would not hear appeals of agency orders or enforcement actions, but it would review proposed agency rules before final adoption, as well as enforcement reports, strate gic plans and appropriations requests. The Sunset staff also recommended placing all agricultural finance programs under the Texas Agricultural Finance Authority; improving cost recovery for regulatory programs; streamlining regulation by transferring programs, consolidating licenses, privatizing inspections and abolishing unneeded regulations; providing on-line access to TDA information; and continuing the TDA for another 12 years. Woodfin said members of the public have complained of problems getting information from TDA and he reported his own difficulties with the agency, whose staff refused to give him a copy of Perry’s letter to the performance review team of the state Comptroller’s office. Then, at an ARPA meeting October 10, he requested a list of applications for and grants made under two funding programs but despite a followup letter and repeated phone calls he had not received the documents as of the Sunset hearing. Deputy Commissioner Barry McBee said the requested documents had been mailed to Woodfin the day before the commission hearing. Rick Lowerre, an Austin lawyer, complained that the TDA has placed obstacles in his way as he attemped to represent clients who claimed injuries from pesticides as well as when he attempted to research Texas pesticide law for a book on which he was collaborating. He also claimed the TDA fired key enforcement personnel, changed TDA inspection policies to require inspectors to ignore oral complaints, diverted resources and personnel from pesticide enforcement activities and failed to provide training for enforcement. In its bias against strict enforcement of pesticde spraying, he said, the TDA has gone to the lengths of arguing with doctors over whether the medical conditions of their patients warrant prior notification of pesticide spraying. [See “TDA on Pesticides: Relax and Enjoy It,” TO 9/30/94.] And despite the Legislature’s 1987 directive for the TDA to implement a farmworker health program, Peny has taken the lead in the National Association of State Departments of Agriculture to weaken and delay an EPA program. “Again, the bias of the agency toward producers over farmworkers and the public is clear,” Lowerre stated. The Sunset Advisory Commission is expected to make its recommendations to the Legislature on January 12. THE TEXAS OBSERVER 19
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