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Crop-duster pilot disputes claims of negligence in worker sicknesses, records show

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The crop-duster pilot involved in a Memorial Day incident that sickened a dozen farmworkers is disputing the Idaho State Department of Agriculture’s claims that he sprayed pesticides in a “faulty, careless or negligent manner.”

“(I)n my opinion, I believe that the actions taken by me on the day of the event were correct,” wrote Valley Air pilot José Pérez in a July 24 response to the Idaho State Department of Agriculture.

Pérez and his employer, Valley Air owner Justin Kearns, declined to provide further comment to the Idaho Statesman.

More than a dozen Canyon County farmworkers were hospitalized over Memorial Day weekend after a possible pesticide exposure in a Parma hops field. State agriculture investigators later said a fungicide called Badge SC sprayed by a crop-duster pilot across the road might have been responsible.

A series of complicating factors — including a rainstorm, unusual symptoms and the lack of a lab to test for Badge SC — meant state investigators couldn’t prove the fungicide was the toxic substance that sent the farmworkers to the hospital. Instead, the state ag department sent a regulatory letter to the pilot, Pérez, informing him that his pesticide application violated Idaho code.

Kevin Kostka, the state’s pesticide compliance manager, drew particular attention to Pérez’s decision to spray the pesticide on an onion field even though farmworkers were working in the adjacent hops field. There is no state or federal law explicitly banning a crop-duster pilot from spraying pesticides when workers are in a nearby field; workers only need to be at least 100 feet away.

The department didn’t impose any fines or revoke Pérez’s license, but they did ask Pérez to provide a formal response detailing how he planned to prevent the incident from happening again. In addition to discussing preventive measures with investigators who delivered the regulatory letter on July 12, Perez sent a formal response on July 24.

“(I)t is revealed that there was no proof of the exposure of the affected workers on the day of application to the product applied by my person, as an aerial application professional, I believe that I demonstrated the sufficient arguments before the authorities that our work is taken in the most serious and safe way possible, both for the general public and for ourselves,” Pérez wrote in his response to the state pesticide manager, Kevin Kostka.

Pérez also questioned the department’s right to regulate “aerial procedures” like the speed or height he flew his plane while spraying pesticides. In his letter, Perez told Kostka he assumed “that only the Federal Aviation Administration (FAA) is the regulatory entity of the NATIONAL AIRSPACE.”

Kostka informed Pérez in a follow-up letter that despite his protests, the testimony of Caldwell Fire Department responders and the workers indicated that a pesticide drift was likely. Caldwell Fire Department reported that one of the workers’ vehicles was spotted with the blue pesticide, and workers said they felt the pesticide hit them. Kostka also explained that the department chose not to issue a Notice of Violation — a more serious action — because the wind speeds when Pérez sprayed the pesticide made drift unlikely, and there was no available lab to prove the pesticide he dropped was responsible.

“You also explained to the department how your application was made using a racetrack pattern that took the plane directly over the top of the workers as you approached and departed the application site,” Kostka wrote Aug. 6. “Contrary to your statement quoted above, the ISDA found evidence that overspray or drift was likely.”

Chanel Tewalt, spokeswoman for the Idaho State Department of Agriculture, told the Idaho Statesman that Pérez’s response was sufficient for the requirements of a regulatory letter and the department’s communication with the pilot is now concluded. Violators who receive a regulatory letter are required only to acknowledge they received the letter and discuss plans to prevent a similar incident from happening, Tewalt said.

Pérez can appeal the regulatory letter or request a formal administrative hearing by Aug. 26. Otherwise, the letter will remain in his file and can be taken into consideration in case of future violations.

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Investigative reporter Nicole Foy covers Latinos, agriculture and government accountability issues. She graduated from Biola University and previously worked for the Idaho Press and the Orange County Register. Her Hispanic affairs beat reporting won first place in the 2018 Associated Press regional awards. Ella habla español.
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