In California, an unsatisfying settlement on pesticide-spraying

Introduction

OXNARD, California – It was the U.S. Environmental Protection Agency’s first and only preliminary finding of discrimination in a civil rights case. The agency saw it as a clear victory for people like Maria Garcia, who’d complained about pesticide spraying on strawberry fields near her children’s school.

In 2011, after a decade-long investigation, the EPA negotiated a settlement that required the California Department of Pesticide Regulation to add a site to a trio of farming communities — including Oxnard — to be monitored for airborne chemicals. The agreement showed the EPA’s “steadfast commitment to protecting and advancing civil rights,” the agency said in a press release.

Garcia, however, was unimpressed.

“It was as if we hadn’t made the complaint,” she said.

Garcia and her husband, Reuben, both retired farmworkers, raised their six children in a house near Colonia and Roosevelt Streets, in the heart of La Colonia, a low-income, predominantly Latino community in central Oxnard. She said her children, now grown, were exposed on a routine basis to toxic chemicals, such as the fumigant methyl bromide, sprayed near their schools. The spraying has continued, and Garcia worries about her grandchildren.

“I don’t want anything to happen to my babies because they’re going to go to these schools that are surrounded by strawberries,” she said.

Garcia is one of six complainants in a case known as Angelita C., after the first name of one of the parents who filed the complaint. The case is both EPA’s biggest success and one of its most notorious failures.

The EPA’s Office of Civil Rights is tasked with investigating allegations that agencies receiving federal funds are acting in discriminatory ways. The finding, the agency said, showed the agency was taking the complaints seriously. “EPA is committed to ensuring that all Americans receive equal environmental and health protections,” the office’s then-director, Rafael DeLeon, said in a press release announcing the decision. “Environmental protection is public health protection and everyone, especially children, deserve the opportunity to live, play and learn in healthy communities.”

Current office director Velveta Golightly-Howell declined to discuss specific cases during a 30-minute telephone interview with the Center for Public Integrity and NBC News but said that since she came to the agency in 2014, she has focused on ensuring “complaints are resolved promptly, effectively and thoroughly.”

But in many ways, the Angelita C. case remains a symbol of public disenchantment. A Center analysis of 265 complaints submitted to the civil-rights office found that settlements are rare, investigations often cursory and findings of discrimination all but non-existent.

In Oxnard, the EPA’s highly touted settlement with the state took a decade to hammer out. Activists say the deal was weak and negotiated under a cloak of secrecy. Garcia is suing the EPA to try to get the settlement overturned and force the agency to redo what she believes to be a bungled investigation.

Falling poison

A rooster crows, and at 7 a.m. on a brisk Sunday in April, the strawberry fields outside of Rio Mesa High School already bustle with farm workers.

The workers wear jeans and hoodies to cover their limbs, hats to ward off the baking sun, gloves on their hands and scarves around their faces. For some, only the skin around their eyes shows. A small radio hangs from one woman’s pants as she works. The sound of cumbia music undulates, growing louder, then softer, as she shifts her body to reach deeper into the plants.

For years after Maria and Reuben Garcia came to Oxnard in 1966 from Tepatitlán, in Mexico’s Jalisco state, they too, worked the fields. Reuben was a supervisor and Maria a campesina weeding fields that bore strawberries, flowers, squash, cucumbers and cauliflower. She noticed that after the fields were sprayed with pesticides, her eyes would swell, her head would ache and her allergies would flare up.

“I kept wishing they would get rid of this nasty dust that harms people,” Maria Garcia said in Spanish.

The six parents who filed the original complaint against the Department of Pesticide Regulation knew that pesticide exposure was to be expected in farming communities like theirs throughout California. They feared, however, that their children were getting unsafe doses simply by showing up at school. Three of the schools were in Pajaro and Salinas, in Monterey County. Another was in Watsonville, in Santa Cruz County. Two — including Rio Mesa High, which Maria Garcia’s son, David, attended — were in Oxnard, in Ventura County.

Rio Mesa is surrounded by strawberry fields. Modular classrooms sit next to a paved driveway on the eastern side of campus. Just past a “Welcome to Rio Mesa High School” sign and a chain link fence, the land dips, and the road transitions to a dirt berm, a carpet of strawberry plant rows sitting a few feet away.

Garcia’s children would sometimes come home from school complaining of headaches. She wondered if the headaches had been triggered by pesticides.

“I would look at [David’s] head and I would see that there were bumps,” she said. “And I felt that they were almost like little horns growing out of his head. I think poison must have fallen on [him].”

The complaint Garcia and the other parents filed with the EPA against the Department of Pesticide Regulation in 1999 zeroed in on the department’s annual re-licensing of methyl bromide, a fumigant linked to lung and kidney damage as well as neurological effects such as headaches, numbness or paralysis in severe cases.

“Children may be especially vulnerable to pesticides because of both greater exposure to pesticides and greater physiological susceptibility,” the complaint read.

While more research is needed into long-term effects, chemicals used in some pesticides are “not good for children’s lungs,” said Dr. Chris Landon, a pediatric pulmonologist and director of pediatrics at Ventura County Medical Center. “It’s so multifactorial — it’s hard to pin down to just one thing.”

The business of agriculture

Agriculture is a $2 billion industry in Ventura County. Farmers produce berries, lemons, celery, tomatoes, avocados, peppers and oranges. A persistent ocean breeze keeps the area up the coast from Los Angeles temperate and close to perfect for farming year-round. Strawberries cover about 14,000 acres in the county and are its most famous crop; Oxnard hosts a Strawberry Festival each May.

“If people want to preserve agriculture, there’s always going to be some risks associated with that,” said Oxnard Mayor Tim Flynn. “It’s important that we always achieve that balance and we do whatever it takes to help farmers stay in business on one hand, and on the other hand, protect the health and safety of the residents.”

The fields outside of Rio Mesa High are seas of green with deep brown crevices cutting walking paths from end to end. The berries themselves sit less than a foot off the ground, resting on mounds of dirt covered in plastic to keep water from evaporating in the sun. The air is thick with the fruity smell.

Twelve percent of residents in Oxnard worked in agriculture in 2013, meaning locals are more likely to live, work and go to school near fields treated with pesticides than people in other communities.

Growing up in La Colonia, Mario Quintana, chair of the City Community Relations Commission, which advises the city on issues of race and discrimination, remembers being surrounded by fields and watching pesticides being sprayed on his neighborhood. It was just part of life in Oxnard, he said.

“We could see them coming down and…to us, it was like, ‘Wow, that’s cool,’” Quintana said. “But now, as an adult, (I can see) that was actually pretty dangerous….We were surrounded by it and we were never told that there were any dangers growing up.”

The Angelita C. complainants said they’d detected a discriminatory pattern in pesticide application: The more minority students a school had, the greater the amount of chemicals used within a mile and a half of it. Nearly three-quarters of Oxnard identified as Hispanic in the 2013 census. During the 2013-2014 academic year, only 18 percent of the 2,129 students enrolled at Rio Mesa High School were white.

The racial component adds to the complexity of evaluating discrimination in pesticide exposure, said Ben Todd, a history teacher at Rio Mesa High School.

“I think people want to dismiss these issues as very, very simple, but if you look at a lot of these issues throughout California and throughout the United States, you see, where are prisons being built? Where are hazardous materials being disposed of? Where are, in this case, pesticides and fumigants used? Where is that? It consistently affects communities of color.”

Many in Oxnard can trace their roots to the bracero program, which brought Mexican immigrants to the region for temporary agricultural work between 1942 and 1964. While all the city’s residents may be exposed to pesticides, Todd said, some Latinos may have heavier cumulative exposures through their work in the fields or the location of their homes.

Methyl bromide and other fumigants in its class are applied at the beginning of the growing season. The odorless, colorless gas is injected into the soil, which is then covered by a tarp while the chemical penetrates the soil.

The substance was deemed so dangerous to the environment that it became subject to a treaty called the Montreal Protocol, which required all United Nations member countries, including the United States, China and members of the now European Union, to stop using chemicals that damaged the earth’s protective ozone layer. The United States agreed to phase out methyl bromide by 2005 — with uses on a few crops, including strawberries, exempted through 2015.

Growers are constantly experimenting with less-toxic alternatives to chemicals such as methyl bromide and try to coordinate with schools when spraying does occur, said Carolyn O’Donnell, a spokeswoman for the California Strawberry Commission, a state agency that represents growers, shippers and processors.

“People don’t understand just how much strawberry farmers care about what they’re doing in their fields and about the surrounding community,” O’Donnell said.

Those who have complained about the spraying, she said, “maybe don’t have all of the information.”

Last year, the Center for Investigative Reporting found that farmers were using excessive amounts of fumigants, including one called 1,3-Dichloropropene (1,3-D), in place of methyl bromide as it was phased out. The Department of Pesticide Regulation puts limits on the amounts of certain pesticides growers can use in a given year. But if growers didn’t use all of their allotment one year, the remaining amount would roll over and be added to the next year’s total.

The practice unsettled school officials and the Ventura County Board of Supervisors. The board has ordered the county agriculture commissioner to closely monitor air test results and report his findings. Supervisor John Zaragoza, who represents Oxnard, said he also wants school districts and parents to be notified when and how much pesticides will be sprayed.

The Department of Pesticide Regulation allows county agriculture commissioners to set local rules for pesticide use on top of state regulations. The department announced in April that it was considering adopting some of those more stringent local rules, on a statewide basis; its goal is to have the rules in effect by 2017. The department is “constantly reevaluating pesticide use,” spokeswoman Charlotte Fadipe said, noting that the Angelita C. complaint was unrelated to the effort.

“Our rules prevent exposure for any child or adult of any race,” Fadipe said. “It’s our job to protect anybody and everybody from pesticides, but still allow them to be used for the beneficial things they do.”

Decade-long inquiry

It took a decade for the EPA to complete its investigation of the Angelita C. complaint.

There were peaks and valleys of activity, according to 247 documents the Center on Race, Poverty and the Environment received under a Freedom of Information Act request and provided to the Center for Public Integrity. The cache of documents, a fraction of the entire FOIA release, includes mostly emails between EPA staffers, state pesticide and county agriculture officials between 2001 and 2015.

The case began in promising fashion.

An investigator with the EPA’s Office of Civil Rights reached out to the complainants’ lawyers in January 2002. That year was filled with conference calls and background briefings. The investigator visited California in September and met with state pesticide regulators, the agriculture commissioner and the complainant’s lawyers. He made plans to witness fumigation firsthand.

After the visit, correspondence dropped to a trickle. In January 2003, Monterey County Agricultural Commissioner Eric Lauritzen reached out to the EPA investigator for an update.

“Quite some time has passed since you visited Monterey County last September and I was wondering how your investigation is going,” Lauritzen wrote in an email. “I am curious if there is anything else that we might be able to provide you that would be helpful in your review of the issues pertaining to this case.”

The next two years saw sporadic conference calls. Consultants’ reports discussing the toxicity of methyl bromide and the best locations for air monitors were shared via email. Talking points show that the EPA was creating a computer model to see how pesticide exposure near schools measured up across the state. In October 2006 — a year after the phase-out of methyl bromide was completed under the Montreal Protocol — the EPA was still editing its written analysis of the Angelita C. case, emails show. In June 2009, nine years, 11 months and 8 days after Angelita C. was filed, the complainants’ lead attorney, Luke Cole, died in a car crash in Uganda.

“He never saw the end of Angelita C.,” said Brent Newell, legal director for the Center on Race, Poverty and the Environment, one of three agencies that filed the complaint. “And I think he would…have really just been disgusted with what happened with Angelita C.”

It would be two more years before the case was settled.

In April 2011, the EPA sent a letter to Chris Reardon, then acting director of the Department of Pesticide Regulation, asking for a meeting to discuss a preliminary finding of discrimination.

“OCR would like to conduct these discussions confidentially and hopes that CDPR will also view them in the same way,” Rafael DeLeon, who headed the office at the time, wrote in an April 22, 2011, letter.

Spokeswoman Fadipe said the department felt blindsided by the determination.

“We felt we got the short end of the stick with that,” she said. “We did agree to settle because it was more expedient than fighting over a pesticide which was in decline. We don’t believe we discriminated against Latino children in California, period.”

The complainants weren’t notified of the EPA’s discrimination finding until the settlement with the state was announced in August 2011. The Department of Pesticide Regulation agreed to monitor the air in Watsonville to ensure that methyl bromide was not being used excessively near Latino schoolchildren. The results, the EPA said, would be shared with the community. The department also was required to do additional outreach efforts near schools in areas of high methyl bromide use.

Newell, who got the news in a phone call as he boarded a plane to speak at an EPA environmental justice conference in Detroit, was livid.

“One of the fundamental tenets of environmental justice is that affected communities should be at the table,” he said. “And they should have an opportunity to participate. And EPA preaches that. I mean, EPA didn’t even give them a chance to be at the table.”

The complainants spent eight months trying, without success, to get EPA to reopen the settlement negotiations.

Secrecy aside, Newell said the settlement failed to address the key issues in the complaint.

By 2011, methyl bromide already was being replaced by methyl iodide, a fumigant that would quickly fall out of favor. While the chemical didn’t deplete the ozone layer, it was believed to cause cancer, brain damage and miscarriages, and to contaminate groundwater. Then, growers turned to 1,3-D, a probable carcinogen, to fill the gap.

The settlement agreement didn’t take into account the chemicals that would spring up to replace methyl bromide. In fact, it focused only on the use of methyl bromide between 1995 and 2001 — the years leading up to when the case was filed, and later accepted for investigation. The EPA said at the time that it looked at methyl bromide because the chemical was specifically mentioned in the complaint.

Newell called it a dereliction of duty.

“I still do not know why EPA did not include the fumigants that were replacing methyl bromide,” he said. “They know about the Montreal Protocol. They administer the Montreal Protocol. They know what the pattern of use had to be. Now, if they didn’t do it because they’re incompetent, that’s a problem. If they knew about it and they decided to deliberately restrict their investigation to only methyl bromide, then that’s an even bigger problem. They would be ignoring evidence that’s material to the investigation.”

‘I felt ignored’

For Maria Garcia, the EPA’s version of justice came too late to be of any use to her children.

Her son, David, was a 14-year-old student at Rio Mesa High School when she joined the Angelita C. complaint. By the time the decision came down in 2011, David was well past graduation and starting a life of his own.

“I felt ignored and that they hadn’t respected anything,” Garcia said of the EPA. “I thought that by speaking with lawyers, I would be able to find help [and] …make things better.”

David Garcia, now 30, works as a welder on an oil platform in the Pacific. Based on where he lives now, his children, ages 1 and 3, would attend Rio Mesa, and, potentially, be exposed to the same risks he was.

On August 23, 2013, Garcia, her son and her daughter, Angelica, became the named plaintiffs in a lawsuit against EPA for its “arbitrary” and “capricious” settlement of the Angelita C. complaint. The investigation didn’t look into health effects suffered by schoolchildren exposed to pesticides, the lawsuit alleged, and the settlement didn’t do enough to protect them from future harm. It called for the settlement to be invalidated and a new investigation completed into the case.

The settlement agreement “allows CDPR to continue to discriminate against Latino children in California by allowing the hazardous application of methyl bromide and other dangerous pesticides and fumigants near their schools,” the lawsuit claimed.

The EPA has made some changes to its Title VI program in recent years, including clearing a massive backlog and adhering more closely to mandated timelines. A federal judge granted the EPA’s motion to dismiss the Garcia lawsuit in January 2014. The plaintiffs are appealing.

Shuffling through a stack of photographs she’d pulled from her purse, Maria Garcia landed on a snapshot of three children, their arms draped around one another. The two brown-haired girls are smiling at the camera flanking the boy — wearing a cartoon character shirt and a rosary around his neck — as he grins, his gaze captured by something off camera. These are three of Garcia’s 19 grandchildren: Viviana, Brian and Bernadette. Their ages escape her, though they look young enough to be in elementary school. They are the reason she has continued her fight.

“If we’re quiet, the damage will be to those who are coming,” she said. “And that’s why I like to help my grandchildren, my great grandchildren, and my neighbors, until they hear us. That’s why I haven’t withdrawn.”