Extermination company broke pesticide law repeatedly, state says
Investigators discovered something disturbing recently as they studied nearly a year's worth of invoices from the exterminator implicated in the deaths of two Layton children a towering stack of violations.
The alleged misapplication of pesticide blamed in the February deaths of 4-year-old Rebecca Toone and her 15-month-old sister, Rachel, was the seventh time in 10 months Bugman Pest and Lawn used too much Fumitoxin and the sixth time it applied the poison dangerously close to northern Utah homes, state records indicate.
And that's just part of the picture. Those alleged misuses are among more than 3,500 instances when the Bountiful company and its employees broke pesticide laws between April 2009 and February, according to violation letters issued by the state pesticide office. In some cases, violations pertained to poor record keeping, but many represented misuse of deadly pesticides.
Coleman Nocks, the employee who used Fumitoxin on Feb. 5 to exterminate field mice at the Layton home of Nathan and Brenda Toone and their children, faces arraignment June 8 in 2nd District Court on two counts of negligent homicide, a class A misdemeanor.
Meanwhile, a hearing scheduled for Tuesday through Thursday on the state's civil allegations against Bugman and seven employees has been pushed back to August or September, according to the Utah Department of Agriculture and Food.
Chrystal Mancuso-Smith, an attorney with the Dunn & Dunn law firm representing Bugman, declined to discuss the state's pesticide accusations. Nor would she comment on whether the firm represents the seven company employees who are accused of 3,506 violations of the Utah Pesticide Control Act. Each faces possible penalties of $12,000 to $27,000.
"It is our policy not to comment on matters like this," she said, "when the investigation is ongoing."
Likewise, several messages requesting comment from Bugman owner Ray Wilson Sr. went unanswered. Pesticide Control Act allegations against Wilson include 88 claimed violations during 42 pesticide applications between April 2009 and February.
Utah's pesticide office declined to discuss its case with The Salt Lake Tribune, pending court and administrative action. Nor would officials answer general questions about their oversight and enforcement program, covering 980 businesses, 111 dealers and 6,070 licensed applicators 2,370 of them commercial applicators that use 11,237 products registered in the state.
"We're going to be declining any prehearing interviews in the interest of due process for the defendants," department spokesman Larry Lewis said in a May 24 voice mail canceling a previously scheduled question-and-answer session. "We're going to defer any interviews until after the hearings in order not to influence the public opinion or generate any undue pressure on the hearing officer."
But others are looking to the civil-enforcement process for signs of how seriously the state takes its role in protecting Utahns from misuse of the deadly poisons.
"These materials are regulated for a reason," said Assistant Layton City Attorney Steve Garside, whose office filed the criminal charges against Nocks last month. "People go through training and are certified [to use them] for a reason."
Garside said enforcement of pesticide laws is important to protect the public safety and to maintain public confidence in professional exterminators. "They have to be held accountable for their failings."
Only a few of the state's allegations against Nocks, 63, and Bugman relate to the Feb. 5 visit to the Toone home.
That day, Nocks allegedly put about 1.2 pounds of Fumitoxin about 894 pellets a few feet from the family's front porch and garage to control voles (small rodents that are also called field mice or meadow mice). A potent poison that can be applied only by trained and certified applicators, the aluminum phosphide pellets were to be used only in burrow systems at least 15 feet from homes and other buildings occupied by people or animals.
All six members of the Toone family became ill that night and went to the emergency room suspecting carbon-monoxide poisoning. Rebecca died the next day. Her baby sister died Feb. 9.
According to the notices of violation issue by the state pesticide office last month, Nocks used Fumitoxin 16 times between April 9, 2009, and Feb. 5, 2010.
Four times, records indicate, he treated burrows within a few feet of homes, although the product label said, in capital letters, "THIS PRODUCT MUST NOT BE APPLIED INTO A BURROW SYSTEM THAT IS WITHIN 15 FEET (5 METERS) OF A BUILDING THAT IS, OR MAY BE, OCCUPIED BY HUMANS, AND/OR ANIMALS ESPECIALLY RESIDENCES."
Six times, the state says, he stuffed too many pellets into the burrows despite a label warning: "DOSAGE RATES MUST NOT BE EXCEEDED UNDER ANY CIRCUMSTANCES."
Wilson, Bugman's owner, told The Tribune after the Toone girls died that Nocks used the Fumitoxin "on his own, without any direction or consultation with the company."
"Had I known that he did that," Wilson said in February, " I would have told the family right away to get out of the house."
Besides a $27,000 fine, the pesticide office says it intends to revoke Nocks' applicator license if the allegations are upheld by an administrative law judge.
Alleged Fumitoxin violations were not limited to Nocks. The company applied pesticides 4,147 times in the 10 months before the Toone girls' poisoning. Fifty-three times Bugman exterminators used Fumitoxin and not once, state officials allege, did they file the required pesticide-management plans. Those plans include notification of people in the affected area, a description of how much Fumitoxin would be used and where, as well as follow-up monitoring and emergency procedures.
The state pesticide office also found that Bugman employee Ray Wilson Jr. twice violated the old 15-foot buffer zone and, once, applied too much.
In 2008, six company technicians, including Nocks and Wilson Jr., received warning letters from the pesticide office. In 2009, the two and Bugman were cited.
The U.S. Environmental Protection Agency didn't wait for the Toone case to be adjudicated to take action. Besides the Toones, two other young girls (in South Dakota and Texas) have died from residential use of aluminum phosphide since 2002.
In early April, the agency banned Fumitoxin use near any home.
"Phosphine fumigants are poisons," said Steve Owens, assistant administrator of EPA's Office of Prevention, Pesticides and Toxic Substances, "and [they] must be kept away from where our children live."
Aluminum phosphide The rules and the risks
Aluminum phosphide is a "restricted-use pesticide" and is available under a variety of labels, including the Fumitoxin suspected in the deaths of Rachel and Rebecca Toone.
When exposed to moisture, the pesticide breaks down into the toxic chemical phosphine, which can cause abdominal pain, nausea and vomiting. High levels can cause weakness, bronchitis, excess fluid in the lungs, shortness of breath, convulsions and death.
It is controlled by the Federal Insecticide, Fungicide and Rodenticide Act and the Utah Pesticide Control Act.
Only those who are "certified" are permitted to buy it, sell it or use it. To become certified, people and companies must pass several tests. They must be recertified, with additional training or testing, every three years.
Review Pesticide poisonings
R Rebecca and Rachel Toone died in February after an exterminator, now facing criminal charges, fumigated for voles near their Layton home. Officials have found more than 3,500 violations.