Poison, Politics and Prevarication

YOU couldn’t say Rick Perry has a body in his basement, because the man he buried is alive and talking. His name is Benny Fisher, and he’s now the sheriff of Delta County, a triangle of small East Texas cotton communities wedged between two branches of the Sulphur River about 75 miles east of Dallas.

Fisher worked for Perry at the Texas Department of Agriculture from January of 1991, when Perry entered office, until September of 1993, when Fisher was fired. Hired in 1981 by Perry’s predecessor, Jim Hightower, Fisher spent his last five years at the department as a pesticide enforcement field investigator in the Tyler district, which spanned most of the cotton-producing counties in East Texas. Monitoring pesticide use is the primary regulatory function performed by T.D.A., and the legwork is mainly carried out by a small group of field agents. When the department receives a complaint, more often than not involving incidents of pesticide “drift” (whereby one farmer’s crops or livestock are poisoned by a neighbor’s pesticide application), a field agent is sent out to collect samples and conduct interviews. By all accounts, Fisher was good at his job. “Benny was real diligent and hard-working,” recalls Cordelia Martinez, a former T.D.A. attorney who worked with Fisher. “Benny Fisher was one of the best,” says another former co-worker, Leroy Biggers, now Tyler regional director for the Texas Natural Resources Conservation Commission. “And whatever he tells you is true,” Biggers adds. Fisher is frankly proud of his record. “Out of twenty-eight state inspectors, I filed more complaints, made better cases, and collected more in fine money than anyone in the state,” Fisher, now 56, said in an interview at his home in Cooper.

Fisher’s last major investigation, begun under Hightower, concerned allegations of illegal waste dumping by the largest pesticide manufacturer in the state. According to Fisher, his superiors at T.D.A. buried the investigation almost immediately after Rick Perry took office. And shortly thereafter, they buried Benny Fisher.

On December 6, 1988, Fisher received a call from Allen Hayes, a young, inexperienced Texas Water Commission investigator, asking for assistance on an investigation of arsenic contamination at a pesticide manufacturing plant outside of Bonham. The plant was owned by Voluntary Purchasing Group, maker of over 200 types of agricultural chemicals, including liquid arsenic acid, produced by only one other company in the United States. Until the practice was banned in 1993, generations of Texas cotton farmers used arsenic acid to dry out the bolls of their cotton plants prior to harvesting them. Accompanied by Hayes, Fisher arrived unannounced at the Bonham plant and informed VPG president Mike Smith that he had come to do an inspection. Smith reluctantly acquiesced, and Fisher and Hayes toured the five hundred acres surrounding the plant, taking soil samples from the pasture, water samples from a couple of creeks, and tissue samples from a dead cow. After lab analysis, all of the samples showed elevated levels of arsenic.

Fisher interviewed neighbors and past employees of the plant over the course of the next year, collecting sworn eyewitness accounts of alleged illegal dumping of arsenic waste both at the current site, and at a previous site in downtown Bonham. Fisher was told by former employees that several illegal methods were used to dispose of waste liquids, including dumping them into the municipal sewage system. One man said that dumping waste with a tractor and spray rig was his only job at the company. “He’d load up a load of that arsenic waste, and he’d just drive down the county road, with his booms shot out toward VPG’s property, and he’d just spray that stuff,” said Fisher. More commonly, waste was simply irrigated on VPG’s pasture, as witnesses told Fisher. “One man watched [the waste sprayer} all one day. On a five-acre block [of VPG pasture land] he sprayed it for eight hours—all day long on five acres of land. Usually you can irrigate five acres in fifteen or twenty minutes. But he was disposing of arsenic waste.”

Fisher interviewed neighbors who said they had lost livestock as a result of contaminated runoff from VPG’s land. “They saved millions of dollars by not shipping it down to Deer Park for proper disposal. But they cost the citizens of Fannin County plenty,” Fisher said. A known carcinogen, arsenic is a heavy metal that is nearly insoluble and non-biodegradable. “That arsenic will be there when Jesus gets back,” Fisher said. Fisher turned in his finished report in 1990. “With the samples, the sworn statements, and everything, I had as good a case as any I’d ever worked,” Fisher said. By the time Fisher was fired in 1993, nothing had been done with the case. In 1995, Rick Perry claimed that the attorney general’s office was sitting on the case, but Fisher believes it was Perry who did the sitting.

Before Rick Perry was Agriculture Commissioner, before he was even a Republican, he was a friend of the pesticide industry. As a Democratic state representative from Haskell County, a farming region near Abilene, Perry challenged Hightower’s zealous enforcement of pesticide regulations, introducing a provision that would have gutted the department’s pesticide authority. That was in 1989. In 1990, Perry became a Republican and announced his bid to unseat Hightower. The Farm Bureau, which represents the state’s agribusiness industry and owns several ag chemical operations, poured tens of thousands of dollars into Perry’s campaign. They weren’t the only ones. “VPG hated Jim Hightower,” Fisher says. VPG owner Dean Smith kicked in $25,000 to Perry’s campaign. It paid off. A year later, the man who would have removed regulatory authority over pesticides from the Agriculture Department was running the show.

As expected, most of the higher-ups in Hightower’s administration were immediately replaced. But so were many of the lower-downs, like former TDA attorney Cordelia Martinez, now in private practice in Austin. “I was told my interests were not consonant with the current administration’s,” says Martinez, who came to the department after doing legal aid for farmworkers. “There was a shift in tone to a more conciliatory approach, downgrading enforcement and settling cases more often, whereas I was more interested in strengthening penalties.” One of the new people Perry brought in was Larry Beauchamp, an ex-cop from Perry’s home county, who Perry named his Special Assistant. Beauchamp (pronounced “Beecham” in East Texas) was Perry’s all-purpose troubleshooter. “He’s got a poster of himself and Rick on the wall that says ‘Rick’s Right Hand,'” Fisher says. Perry also appointed Barry McBee as his deputy commissioner, the number two position in the agency. (McBee would later leave the department in 1995 to become the state’s top environmental officer, as chairman of the TNRCC. Together Perry and McBee set about deregulating agribusiness in Texas, eliminating a wide range of protections—from quality controls on peanut and milk, to “right to know” laws protecting farmworkers from unwitting exposure to pesticides.

According to Benny Fisher, it was McBee who convened a meeting in Austin in 1991 to dispose of the VPG illegal dumping case. In addition to McBee, T.D.A. general counsel Geoff Connor (now general counsel at TNRCC) was present, as was VPG president Mike Smith and his attorney Bob Slagle (then chair of the Texas Democratic Party). “McBee just said the case was ‘dismissed’—that’s all he said,” Fisher recalls. “A review board is supposed to make that decision,” Fisher said, “not an assistant commissioner that don’t know what a stalk of corn looks like.” That meeting officially ended Fisher’s investigation of the case. Then, in April of 1992, Fisher says he was summoned to Tyler, along with several other pesticide inspectors, for a meeting with Beauchamp and Dallas district supervisor E.W. Wesley, who had become Fisher’s supervisor following a reorganization of T.D.A.’s districts. “They told me to bring my VPG file,” Fisher says. “That’s when I started to wonder: what do they want with my file, when they’ve already got their own copy?” For every investigation, three separate files are maintained, one in the district office (in this case, Tyler), one at the T.D.A. main office in Austin, and one with the field investigator. Moreover, most of the information collected by Fisher had already been released to the public by Fisher’s superiors in 1991, against his wishes and normal protocol. That gave VPG a chance to counter everything before I had even finished my investigation,” Fisher said. Documents re1eased included the names and addresses of all of Fisher’s confidential informants. Fisher also claims his personnel records were released to VPG officials by the Perry administration, apparently in an effort to discredit him. “They wanted information on my health status, my adopted son, everything,” Fisher said. Fisher decided to take his file to an attorney in Paris and have a copy made before turning it over to his supervisors.

After the meeting in Tyler adjourned, E.W. Wesley asked Fisher if he had brought his VPG file. Fisher retrieved the file from his truck, and handed it to Larry Beauchamp. “Larry opened it up and looked at it and said, ‘You can just shitcan this investigation,'” Fisher recalls. Then, he says, Wesley asked the Tyler office secretary, Sue Ramsey, where the district’s pesticide complaint file was kept, and she directed him to a bank of filing cabinets. “Most of your pesticide complaints, you had one file folder, this one [VPG] had four. And instead of putting it in manila folders, I put it in white folders, with big thick rubber bands around it,” Fisher explains. That was how he recognized the file Wesley pulled from the cabinet. “He stuck ’em under his left arm, he walked right out that front door between Miss Sue and me, and never said a word to nobody.” Beauchamp and Wesley then drove off with two of the three official files on Fisher’s investigation, the third being in Austin. Fisher’s extra copy of the file is now in the possession of the Houston law firm of McClanahan and Clearman, who are representing several plaintiffs in VPG related suits.

Just what was in those files? They contained all of Fisher’s field notes from the Bonham investigation—but Fisher hadn’t stopped there. He had also begun investigating arsenic contamination at VPG-related sites in Commerce and Ridgeway. During Fisher’s first visit with VPG president Mike Smith, Water Commission investigator Hayes brought up the subject of a child who had been poisoned several years earlier, while playing near VPG’s original plant site in nearby Commerce. “He jumped up and commenced to cussin’, saying that was nobody’s business,” Fisher recalls. His curiosity piqued, Fisher decided to visit the old Commerce site, which had been ordered closed by the state in 1972. Again, he took samples. A safety limit often used by the Environmental Protection Agency for arsenic is 20 parts per million. One of Fisher’s samples registered 22,000 ppm.

VPG’s original Commerce plant was located in a black neighborhood called Norris. Although few had heard of the place in 1989, Norris became Texas’ version of Love Canal. The original plant was shut down by the state after the Houston Post revea1ed that the company had routinely dumped its arsenic waste, along with other toxic materials, into Sayles Creek, which ran through one side of the property. Runoff from the plant site had thoroughly contaminated the surrounding neighborhood, exposing hundreds of residents to arsenic, which many now blame for the high rates of birth defects and cancer in Norris. VPG was up and running again in Bonham in only four months time, but the old Commerce site was never cleaned up. Although the state had known about the contamination as early as 1961, residents were not informed of the danger, by either the company or state agencies, until the early 1990s. The site was finally cleaned under the Superfund program in 1995. Workers in contamination suits removed about six inches of topsoil from the yards of dozens of houses surrounding the site. Sayle Creek now has a seven-foot barbed wire fence along both sides of its entire route through town.

While Fisher was in Commerce, a longtime resident tipped him off about the location of a third site, this one near the unincorporated community of Ridgeway, about ten miles from Commerce. After the closing of the Commerce site, the company had purchased a piece of land on top of a hill, dug several evaporation ponds, and dumped arsenic-laden waste into the ponds. The idea was to allow the arsenic to precipitate out as the water evaporated, then backfill the ponds with soil. Heavy rains caused the ponds to overflow, however, and runoff began damaging neighbors’ livestock. Eventually, the site also apparently contaminated the underlying aquifer, which supplies all of the water for the roughly 4,000 residents of Ridgeway. In his investigation Fisher learned that the state had known about the Ridgeway site for years. The original idea to build the dump on the Ridgeway site came from the Texas Water Commission, according to agency documents. And a T.W.C. engineer, Herbert Nordmeyer, took samples at the Ridgeway site and testified for the plaintiff in a 1974 lawsuit by a neighbor who had lost over two dozen cows. The company quietly settled the suit.

But the residents of Ridgeway were never warned of the contamination in their water supply. In 1996, the TNRCC found arsenic in sediment in the underground tanks of the Gafford Chapel Water Company, the sole distributor of water to Ridgeway. The agency also took samples from toilet tanks of customers, which tested positive for arsenic as well. According to TNRCC memos, the agency urged the company to shut down the system and clean its tanks, and to consider switching over to the Sulphur Springs municipal water supply until the source of the contamination was determined. But regulators already knew what the source of the arsenic was—the nearby Ridgeway site, which was less than two hundred yards from the nearest Gafford Chapel well, as TNRCC documents acknowledge. According to Rod O’Connor of Bryan, a chemist hired by a private law firm to take samples in Ridgeway, the agency allowed the company to re-open on a technicality. State and federal standards apply only to dissolved arsenic, not particulate arsenic, so the company was not violating the letter of the law. “The arsenic is in the tap water as a cloudiness,” says O’Connor, who was able to precipitate arsenic-laden sediment from a glass of water taken from Paulette Fisher’s house in Ridgeway. Paulette Fisher, Benny Fisher’s sister-in-law, says cancer rates are so high in her neighborhood that it has become difficult to obtain insurance. She says neither the company nor the state has ever warned the neighborhood about the arsenic.

In 1995, VPG agreed to settle one of the complaints raised by Benny Fisher’s original investigation, involving the sale of arsenic-tainted fertilizer, for $30,000. But no enforcement action has ever been taken by any agency regarding the more serious allegations of illegal dumping in Bonham and contamination in Ridgeway. A June 30 press release from the TNRCC announced that the attorney general’s office had managed to extract $2.5 million from VPG in bankruptcy court. (Although the company declared bankruptcy in 1996, VPG continues to operate in Bonham.) But according to the AG’s office, that money was collected solely to compensate the state for expenses incurred in the 1995 cleanup of Sayles Creek in Commerce. The Bonham and Ridgeway sites, on the other hand, have been placed in the TNRCC’s voluntary cleanup plan.

“They cut a deal,” says Rod O’Connor. The voluntary cleanup program allows companies to clean sites to a “health-based” standard (based on the predicted future use of the site), rather than a “natural background” standard (which according to O’Connor is much more difficult to do). For the stricter standard, companies have to leave sites as though the contamination had never occurred. O’Connor worked on an arsenic case in Bryan in which the state advocated using a health-based standard. “For health-based, you just hire a couple of experts to say the site is no longer a health threat, and you’re done,” O’Connor said. “They’ll probably get away with maybe ten percent of the cost of doing it right.” VPG will also be relieved of liability from further state enforcement under the program. Particularly in the case of Ridgeway, where an aquifer may have been irreversibly contaminated, this provision could save the company millions.

Barry McBee feels the state got a pretty good deal. “You’ve got a company in bankruptcy, and we were in line with creditors fighting to get at the pot of money that’s there,” McBee said. Fines and judgments, according to McBee, are always paid last in bankruptcy court. But Fisher completed his investigation in 1990, six years before VPG declared bankruptcy. Couldn’t the state have gotten in line sooner? “You’re asking why did not the Water Commission more aggressively pursue this, and I don’t know, I wasn’t there,” McBee said. But McBee was uniquely positioned, first at T.D.A., and later at the TNRCC, to follow the progress of the dumping case.

Perry, speaking through T.D.A. attorney Will Galloway, denies that Fisher’s files were confiscated. (McBee also claims no knowledge of that action, nor could he recall dismissing the case in a meeting in 1991.) Galloway said Fisher was removed from the case because the company had alleged misconduct by Fisher, which might have affected his credibility at trial. As it happened, no trial ever occurred. Galloway claimed allegations pertaining to illegal dumping were handed over to the Texas Water Commission. As late as 1993, the T.W.C.’s successor agency, the TNRCC, was claiming the Ridgeway site was “just discovered.”

“All my life, I always thought that the law was for everyone to follow,” says Fisher, who was a sheriff for twelve years before joining T.D.A. “But it don’t work that way at T.D.A. If you’ve got big money, you’re cool. If you’ve got political pull, you’re cool.” Fisher was fired in June of 1993, for an unrelated incident—a complaint from a farmer under investigation by Fisher—that he says was merely an excuse to get rid of him. Says Fisher, “The only thing I can say is, I got one vote, that’s all I got, but I’d sure hate to see Rick Perry as lieutenant governor.”

This article was partially funded by readers’ donations to the Texas Observer Investigative Reporting Fund.