Layton to file negligent homicide charges in Toone sisters' pesticide deaths

Published: Thursday, April 29 2010 12:00 a.m. MDT

Clark Burgess, left, of the Utah Department of Agriculture and Food, with Layton Assistant City Attorney Steve Garside at his side, speaks about the Toone girls' deaths.

T.j. Kirkpatrick, Deseret News

LAYTON — A Davis County pest control worker will be charged with two counts of negligent homicide in connection with the poisoning deaths of two young girls, prosecutors announced Wednesday.

The charges, both class A misdemeanors, will be filed against 62-year-old Cole Nocks, said Layton Assistant City Attorney Steve Garside.

Authorities believe Rebecca Kaye Toone, 4, and Rachel Ana Toone, 15 months, inhaled phosphine fumes emitted from tablets of Fumitoxin, a rat poison that Nocks placed around their Layton home on Feb. 5.

The girls had elevated levels of phosphorus in their bodies, according to a Utah Medical Examiner's Office report. They also had "lung damage consistent with inhaling a harmful substance," the report said.

Officials notified Nocks of the charges Monday, but he has not been arrested because he is not considered a flight risk, Garside said.

Garside said negligent homicide is considered a result of recklessness, rather than criminal intent. Class A misdemeanors are punishable by up to one year in jail and a fine of up to $2,500.

Nocks, as well as his employer at the time, Bugman Pest and Lawn Inc., face civil action by the Utah Department of Agriculture and Food, said the department's pesticide manager, Clark Burgess.

The department is seeking to revoke Nocks' license, as well as fine him up to $27,000.

Burgess said investigators believe Nocks "operated in a faulty, careless or negligent manner" when he applied the pesticide outside the Toone home.

Regulators say Nocks failed to follow warning labels and federal regulations, applying too much of the toxin too close to the home, a dangerous practice the company also failed to understand.

"We believe this tragedy could have been prevented if the company and applicator in this case understood this important concept," Burgess said.

Bugman also is accused of failing to follow procedure.

Burgess said that in all of its 53 applications of Fumitoxin, completed by five different employees, the company failed to create a fumigant management plan. Such plans require applicators to provide homeowners with information on the toxin's risk, as well as to return and inspect the area.

While officials say Nocks did not follow proper procedure, Burgess said he appeared to have followed the same procedures as other Bugman employees.

The company faces a fine of up to $32,000, and agriculture officials say seven employees have been called to appear at investigative hearings.

The Toone family issued a statement following Wednesday's announcement of criminal charges.

"As previously stated, we intend to give our full cooperation to government officials seeking justice for the deaths of our daughters and express our confidence in their ability to do so," parents Nathan and Brenda Toone said. "While we continue to mourn the passing of Rebecca and Rachel, we feel compassion for all involved in this situation. Although we understand and support the demands of the law, we hope those demands will be tempered with mercy."

Earlier this month, the U.S. Environmental Protection Agency announced more stringent regulations for Fumitoxin, in response to the girls' deaths. The agency has banned the product's use around homes and increased "buffer zones" for its use near non-residential buildings that could be occupied by people or animals.

Burgess said the EPA also has increased funding for Utah by $70,000 to help enforce and educate.

In Utah there are more than 900 pesticide companies with about 2,000 employees, while there are only four state pesticide regulators, Burgess said. This disparity has made it difficult to monitor all of the companies in depth, he said.

The U.S. Attorney's Office is still investigating both Nocks and Bugman, Garside said, and more charges could be forthcoming.

e-mail: jsmith@desnews.com TWITTER: joshjonsmith

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