From NewAmericaMedia.org, Ngoc Nguyen, 29 Aug 2011.
The use of pesticide methyl bromide in California, approved annually by state regulators, discriminated against Latino school children, the U.S. Environmental Protection Agency said last Thursday. The federal agency reached a settlement with the California Department of Pesticide Regulation (DPR), resolving a civil rights complaint from 1999. The complaint alleged that DPR’s yearly approval of the fumigant disproportionately and adversely affected Latino schoolchildren, whose schools were near crop fields that were sprayed. Attorney Michael Meuter with California Rural Legal Assistance (CRLA), one of the law firms that filed the 1999 civil rights complaint on behalf of farmworker clients, called the EPA finding “historic.” NAM editor Ngoc Nguyen spoke with Meuter about the significance of the case.
Why did CRLA file the original civil rights complaint?
We along with the Center for Race, Poverty and the Environment and Farmworker Justice in Washington, D.C., were the three law firms that filed that complaint with U.S. EPA on behalf of farmworker clients and their children.
What we raised in the complaint was the negative disproportionate impact that heavy uses of methyl bromide in schools surrounded by strawberry fields on the Latino school children that attended those schools. They were at a disproportionate risk of harm from exposure compared to non-Latino kids.
One thing that we noticed, we did a fair amount of digging… Taking a look at statistical data, where methyl bromide was being used and the ethnic breakdown of kids attending school [in the area]. It just struck us — the disproportionate impact made us think the Title VI route was a good one.
We had hoped for some quicker response and my understanding is [the case is] historically significant. This is the first case involving a Title VI [complaint] filed with U.S. EPA in which they found cause. They agreed with the complaint. Yes, there were discriminatory impacts.
Does the agreement between the EPA and DPR go far enough?
We have pretty significant concerns [over the agreement] — both the length of time [it took to address the complaint] and ultimately, [EPA] made a finding that agreed with the allegation, but unfortunately we and our clients were not informed of that determination, made apparently back in April. We weren’t consulted in any way… That’s a big problem. We should have been. The clients should have been brought to the table to discuss what the steps are going forward to correct the problem.
It’s a weak agreement that doesn’t compensate any of our clients and doesn’t take much strong, aggressive action to address future ongoing harm similar to the harm we allege. For example, the monitoring in the agreement is exclusive to methyl bromide…. the current modern day pesticides revolve around methyl iodide, recently approved by DPR. [Methyl iodide] is a replacement for methyl bromide…use patterns of methyl iodide may [be similar to methyl bromide]. This agreement has nothing to say about further monitoring of methyl iodide [even though] Latino children could experience disproportionate impacts from methyl iodide.
According to the agreement, DPR has stepped up its pesticide monitoring – will that help?
[The monitoring] measures the amount of pesticides in the air…if it exceeds a level DPR believes to be safe, it [helps DPR to] take additional mitigation measures to protect the public.
What [DPR] will for sure talk about is the steps that exist in the law and what they do in requiring advanced notice of pesticide use. There is a system in California for that: an applicator who wants to use a pesticide has to apply for a permit, advise DPR where and when it intends to use the pesticide and report to DPR on actual use. There’s a lot of data and paper and electronic records… How is that affecting the air and waterways and public health? That is what I would characterize as monitoring.
The agreement states that “CDPR has agreed to voluntarily resolve this case,” pointing to methyl bromide’s “declining use and scheduled phase-out under the Montreal Protocol.” How widely is the fumigant still used in California?
Methyl bromide was supposed to be on a phase-out path. Many previous prior deadlines have come and gone, and methyl bromide is still widely used for sure… the methyl bromide user can apply for exemptions, but I believe these critical use exemptions are being ratcheted down… but there’s still heavy quantities of methyl bromide used in California.
As part of the agreement, DPR plans to ramp up its engagement with the Latino community to educate them about preventive measures. Is that enough?
It’s a fumigant, a gas, so it doesn’t stay in the target field. It is injected into soil and plastic tarps are put over the field to keep some of the gas in the field, but it gets in the air … every application of methyl bromide, off-gassing into the air and people that live and work near the field.
No one can argue against the importance of good information and learning about safety procedures. That’s all good, but that’s not enough. True mitigation would be to apply the precautionary principle with these chemicals. We need to look at ratcheting down use… these things are unsafe at any speed. And all the public education in the world won’t prevent exposure and illnesses. We need a tougher enforcement structure that leads toward declining use.
Will this historic settlement impact the case of another contested fumigant – methyl iodide, which was just approved for use in the state’s fields?
CRLA and Earthjustice are the attorneys litigating that case – the case currently pending in Alameda County Superior Court filed against DPR challenging the registration of methyl iodide. We hope that litigation, the determination by U.S. EPA, not to mention the strong weight of the scientific community concerned about methyl iodide use — all of those factors will heighten the interest of the current Brown administration [to reverse methyl iodide’s registration].