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LAYTON -- Layton prosecutors announced Wednesday afternoon that a pesticide technician and the company he worked for will be charged in the deaths of two young sisters.
The Toone girls died in early February, after technician Cole Nocks used a powerful chemical to treat rodent infestation. Nocks has now been charged with two counts of negligent homicide.
"Negligent homicide contemplates an individual who acts with criminal negligence. That conduct results in the death of an individual," said Layton City Attorney Steve Garside.
Investigators said Nocks not only put in too much pesticide in the rodent holes, but he also placed it too close to the home.
"There was a substantial and unjustifiable risk," Garside said. "A defendant should have been aware of that risk, failed to foresee that risk, which was a gross deviation of a standard of care."
Bugman Pest and Lawn, the company Nocks works for, is also facing charges for improper use of this kind of pesticide.
Department of Agriculture also levels charges
Also present Wednesday was the Utah Department of Agriculture and Food, the agency directly involved in investigating how the pest company and the pest technician used the chemical phosphine in this case.
The Department has filed multiple charges of violations of the Utah Pesticide Control Act against Bugman Pest and Lawn and Cole Nocks for the Feb. 5 incident.
A release from the Department states that Nocks "operated in a faulty, careless or negligent manner" and levels four specific charges against Nocks and five charges against Bugman.
Clark Burgess with the Utah Department of Agriculture and Food said, "It shouldn't have had to happen. That's the saddest part."
Among other charges, the Department release states Nocks "failed to follow label directions and federal law by applying large amounts of Fumitoxin pellets in several locations that were within a required 15-foot buffer zone" and that "he did not have a fumigation management plan, which would have required him to provide the Toones with label information ... and require him to return in one or two days to respect the fumigated area."
"We believe this tragedy could have been prevented if the applicator and the company would have followed the label directions," Burgess said.
During an audit of Bugman's records from past several years, the agency found approximately 3,000 recording violations.
In addition, investigators found the company used phosphine incorrectly and without fumigant management plan 53 times in a three-day period. Often, technicians applied the chemical too closely to homes, sometimes right under the front porch.
The Department of Agriculture can only sue Bugman and its employees in civil, not criminal, court. It will have hearings for seven Bugman employees who are responsible for the 53 above-mentioned occurrences. Each applicator faces between two and eight counts of civil charges.
The agency also says it will fine Nocks $27,000 for his negligence and will revoke his license. Bugman Pest and Lawn will also be fined to the tune of $32,000.
Deaths prompt EPA pesticide changes
The Utah Medical Examiner's Office said both Toone girls had elevated levels of phosphorous and lung damage "consistent with inhaling a harmful substance."
A few weeks ago, the U.S. Environmental Protection Agency said aluminum and magnesium fumigants, like phosphine, can no longer be used near homes.
Four-year-old Rebecca Toone and her 15-month-old sister, Rachel, died in February. Investigators said they believe toxic phosphine gas from the pellets seeped into the home and sickened the girls.
At first, the Toone family thought they might have a carbon monoxide leak when several family members started feeling sick and their detector sounded. They called the fire department, which determined there was a small amount of CO, but nothing serious.
The home was cleared, and the next day Rebecca died.
The Toone family has stayed mostly silent during the investigation, but released a statement saying they feel compassion for all involved in the situation and hope for mercy for those responsible for their great loss.
Prosecutors say the technician is tormented by the girls' deaths.
"I think he's been devastated by the entire incident," Garside said. "He explained to us that he lost a child, he lost a 15-year-old in an automobile accident, he told me, and so he's quite remorseful."
Negligent homicide is a class A misdemeanor, punishable by up to one year in jail for each count.
No charges have been filed against Bugman Pest and Lawn at this point, but federal charges are still possible.
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Story compiled with contributions from Paul Nelson, Nicole Gonzales and Jennifer Stagg.
