SALT LAKE CITY -- A federal grand jury returned a three-count indictment Wednesday against Coleman Nocks and Bugman Pest and Lawn Inc., alleging three instances of unlawful use of the pesticide Fumitoxin.
The violations in the indictment are class A misdemeanors.
In one of those instances, Nocks is accused of using Fumitoxin too close to the Layton home of the Toone family. Rebecca Toone, 4, and her sister, Rachel Toone, 15 months, died three days apart after Nocks applied the pesticide around their home Feb. 5, 2010. Authorities believe the girls' deaths were due to exposure to fumes from the Fumitoxin.
Nocks, 63, of Bountiful, had been facing two state class A misdemeanor counts of negligent homicide in the deaths of the Toone girls. He pleaded not guilty and trial was set for May. Those charges now will be dismissed without prejudice, meaning they could be refiled.
According to a news release from the U.S. Attorney's office and Assistant Layton City Attorney Steve Garside, who was prosecuting Nocks, the case was taken to federal court because "the majority of the apparent violations occurred outside of Layton City's jurisdiction."
The other two instances, according to the indictment, occurred in Centerville and North Salt Lake in 2009.
The indictment claims that in the Layton case, Nocks applied Fuxmitoxin into a burrow system within 15 feet of a building that may be occupied by humans; exceeded dosage requirements; applied Fumitoxin when temperatures were below 41 degrees Fahrenheit; and failed to provide a Material Safety Data Sheet or applicable portions of the manual to the homeowner.
Fumitoxin is a pesticide registered with the Environmental Protection Agency, and the pesticide's sole active ingredient is aluminum phosphide, making it a restricted-use pesticide under regulations from the U.S. EPA.
Nocks was a licensed commercial applicator of pesticides and was certified to dispense Fumitoxin.
He was an employee of Bugman Pest and Lawn Inc., a pest extermination company.
Nocks surrendered his applicator license and agreed never to reapply for a pesticide license in Utah, according to a joint news release in August from the Utah Division of Plant Industry and the Utah Attorney General's Office.
The maximum penalty for each misdemeanor count is up to one year in prison and a $25,000 fine. The company could face a fine of $200,000 per count.
In addition, prosecutors can seek an increased sentence if the violation caused a substantial likelihood of death or serious injury.
On Wednesday night, the Toone family released a statement reaffirming their "intent to cooperate with government officials who pursue justice for the deaths of our daughters, Rebecca and Rachel." In the release, Nathan and Brenda Toone also expressed confidence in the legal system, and said they "remain appreciative for the outpouring of love and support from family, friends, and community."
Shortly after the girls' deaths, the U.S. EPA issued new restrictions on aluminum and magnesium phosphide products to better protect people from dangerous exposures.
Bugman Pest and Lawn Inc. and a number of its employees had reached a settlement with the state in August 2010 for misapplication of pesticides and record-keeping violations. No criminal charges have been filed against Bugman Inc., its owner or the company's other six employees in the deaths of the two girls.