Wednesday, February 4, 2009
Dow Pesticide Claim Still Waiting in the Weeds...
Dow Pesticide Claim Still Waiting in the Weeds
by Luke Eric Peterson
Lawns are buried in Ottawa at this time of year. But can the same besaid of a potential NAFTA lawsuit over lawn pesticides?
A few months ago, Embassy revealed details of a legal threat made byDow chemical company. The U.S. firm warned that a Quebec ban on theuse of lawn-care pesticides could breach protections contained in theNorth American Free Trade Agreement.
A multi-million dollar lawsuit against the federal government appearedto be in the offing—with Dow prepared to accuse Canada of "unfair" and"expropriative" treatment of its long-standing investments in thepesticides market.
Environmental advocates pilloried Dow for having the temerity todemand financial compensation for future lost profits in thepesticides market.
Under NAFTA rules, Dow had to notify Canada of its intent to launch aclaim under Chapter 11 of NAFTA, and then wait 90 days before movingforward with that lawsuit.
The 90-day window has long since elapsed, but there have been nofurther movements by Dow. When last contacted, the company said it hadtaken no formal decision to move forward.
Some observers suspect that the threats targeted at Quebec's morestringent pesticides regulation are merely a stalking horse. In thistheory, the real battle is in Ontario, where a similar tightening ofregulations is underway—threatening a much larger chunk of Dow'sCanadian business.
However, the mere act of filing legal papers has created a great dealof busy-work for bureaucrats in key provincial ministries, as well astheir federal counterparts in Ottawa.
Bureaucrats must apprise their political masters of the risks that Dowmight succeed in extracting compensation under NAFTA.
And on this point, no one can be certain.
Indeed, much may depend upon another ongoing arbitration claim underNAFTA.
The same Montreal law firm that represents Dow also represents anotherU.S. chemical company, Chemtura, in a long-running dispute over arecent ban on the hazardous agro-chemical Lindane.
Chemtura is trying to recoup more than $100 million in future lostprofits following Canada's move to restrict the use of Lindane as apesticide seed treatment.
The Chemtura claim promises to be an important test-case, as it mayfurther clarify the boundaries within which health and environmentalregulators can operate—without having to pay financial compensation tocompanies negatively affected by government regulations.
At first glance, the Lindane case should be a no-brainer. After all,health regulators in a growing number of countries are stamping outLindane use because of its harm to human health and the environment.Canadian regulators have expressed particular concern about Lindane'simpact upon farm workers who come into regular contact with thechemical.
Perhaps not surprisingly, Ottawa has responded fiercely to Chemtura'sclaim.
In legal papers filed last autumn, the feds grouse that the U.S.company is trying to hold Canadian taxpayers responsible for the fact"that it can no longer profit from the sale of a toxic chemical thathas been internationally banned based on demonstrated health andenvironmental concerns."
Canada is asking arbitrators to dismiss the case, and to hold Chemturaliable for the millions of dollars that the government will spend todefend the arbitration claim.
However, the U.S. company offers a very different account.
According to Chemtura, Canada's Pest Management Regulatory Agencycracked down on Lindane without the benefit of a rigorous scientificrisk assessment of the chemical. The U.S. firm complains that it wasnot adequately consulted by regulators, and that important evidencewas not considered.
In response, the federal government counters that Canadian healthregulators devoted years to reviewing (and re-reviewing) the safety ofLindane before moving to phase out its agricultural uses. The fedsstress that huge expenses were incurred by the Canadian taxpayer inorder to extend an "extraordinary amount of due process" to Chemturaas the company resisted a Lindane-crackdown.
Ultimately, it falls to three arbitrators to decide whether Canadadenied Chemtura certain legal and due-process protections promised inthe NAFTA.
The arbitration tribunal will hear oral arguments in the dispute laterthis year. However, at the insistence of Chemtura, these hearings willbe closed to the public and the media.
Many observers will be waiting intently for the process to run itscourse.
One Toronto-based lawyer who advises on these types of issues saysthat the rising profile of NAFTA Chapter 11 claims means clients arenow routinely asking if disputes with government might be amenable toNAFTA arbitration. Orlando Silva, a partner at McCarthy Tetrault saysthat "there is a lot of behind-the-scenes advising of clients thatdoes not get reported to the public."
He adds that "a successful Chemtura result could open the floodgatesto more of these NAFTA arbitrations."
Indeed, Dow, the U.S. pesticide producer, is not the only company"waiting in the weeds".
When Dow's threatened NAFTA suit became public last autumn,speculation mounted as to whether the makers of Bisphenol A (BPA), acontroversial substance used widely in food and drink packaging, mightpursue its own NAFTA compensation claim if health regulators introducenew restrictions on BPA use.
Luke Eric Peterson is a columnist for Embassy. He is the editor ofInvestment Arbitration Reporter, a news service tracking cross-borderinvestor-state lawsuits (www.iareporter.com).
26th New Jersey Township Adopts Pesticide-Free Policy
(Beyond Pesticides, February 2, 2009) As part of the Township ofBernards, New Jersey’s new Pesticide Management System Resolution thatdesignates pesticide-free zones and requires adoption of an IntegratedPest Management (IPM) program for all its municipal grounds, the mayorand town council are also asking its citizens to adopt such measureson their own property. The resolution preface states, “[S]cientificstudies associate exposure to pesticides with asthma, cancer,development and learning disabilities, nerve an immune system damage,liver or kidney damage, reproductive impairment, birth defects anddisruption of the endocrine system, and … infants, children, pregnantwomen, the elderly and people with compromised immune systems andchemical sensitivities are especially vulnerable to pesticide effectsand exposure, and … lawn pesticides and synthetic fertilizers areharmful to pests, wildlife, soil microbiology, plants, and naturalecosystems and can run off into streams, lakes and drinking watersources …”
Pesticide-free zones include playgrounds, picnic grounds and pavilion/rest areas, and the area 50 feet around each of these sites, as wellas dog park/runs, pool areas and ball fields. Pesticide-free zonesalso include all waterways and a 300 foot buffer around any streambank, pond, lake or natural wetland.
According to the township’s IPM plan, “[IPM] activities will consistprincipally of using native plant species and biological controls toencourage natural land management. Manual/mechanical controls, such aspulling weeds by hand or mowing, will be the first choice formanagement of invasive plant species when and where most feasible…Where plant, fungal or insect pests become otherwise unmanageable bythe various low impact pest management methods, pesticides may be usedas a control method of ‘last resort.’ When pesticide use is required,public notification shall be made.” Pesticide notification includesposting information at the park information board 48 hours prior tothe application stating the area to be treated and the pesticide to beused. The notice is to remain posted fro at least 72 hours after theapplication.
Management tools for the pesticide-free zones consist of nativeplantings, manual weed control, vinegar or citric acid products, burn-out, corn gluten, neem, horticultural oil, potassium soaps of fattyacids, boric acid, diatomaceous earth, microbe based insecticides, non-pesticidal pest traps and biological controls. Some advocates cite asan unfortunate loophole in the plan the authority to use, if othertools are ineffective, pyrethrin insecticides or the herbicideglyphosate as a last resort, both of which are toxic chemicals thatpose public health and environmental risks.
Beyond Pesticides and organic land managers note that by using organicpractices lawns and landscapes can be successfully managed without anytoxic synthetic pesticides. Advocates are concerned that without astrict mandate to limit unnecessary toxic practices, managers may fallback on chemical-intensive methods. However, if the Township ofBernards implements its program rigorously and effectively, it willnever need to get to this “last resort” scenario, advocates say.
The IPM plan also covers indoor and outdoor areas of special use sitessuch as exhibit gardens, amphitheater, and historic sites. For thesestructures, “[B]aits/gels will be the preferred option if sanitation/exclusionary measures fail to control a pest problem.”
“I think that wherever possible, the township and the individualhomeowner should use little, if any, pesticides on their lawns. It’sjust healthier,” said Bernard’s Mayor Carolyn Kelly in a My CentralJersey news article. According to the article, Pat Monaco, Bernards’public works director, says, “[L]ittle, if any, pesticides orfertilizers [have been applied] on public open space in the past fewyears.”
Jane Nogaki, New Jersey Environmental Federation’s pesticide programcoordinator and long-time activist member of Beyond Pesticides, toldthe reporter that the township will place the nationwide symbol forpesticide-free, the ladybug sign, at its parks this month making itthe 26th community to adopt such programs in New Jersey.
Throughout the country there has been a growth in the pesticide-freemovement. The passage of pesticide-free public land policies are verypromising. For more information on being a part of the growing organiclawn care movement, see Beyond Pesticides Lawns & Landscapes programpage.
New Jersey Issues Record Fine, Nearly $1 Million, for Pesticide UseViolation
(Beyond Pesticides, February 3, 2009) A corporate tomato grower facesan unprecedented penalty of more than $931,000 for misusing pesticidesand jeopardizing the health and safety of workers in its New Jerseyfarm fields and packing houses, New Jersey Department of EnvironmentalProtection (DEP) Acting Commissioner Mark N. Mauriello announcedJanuary 30, 2009.
In its enforcement action, the DEP cites Ag-Mart Produce Inc.,headquartered in Cedarville, Cumberland County, with hundreds ofviolations that include denying state environmental inspectors accessto facilities, losing track of a highly toxic insecticide, failing toproperly ventilate areas during pesticide use, failing to postimportant pesticide-safety information for workers, carelessrecordkeeping and using forbidden mixtures of pesticides.
Ag-Mart Produce widely markets its tomatoes under the brand name“Santa Sweets,” and employs 700 people throughout 17 farm locations inNew Jersey. Ag-Mart also owns and operates other produce farms inNorth Carolina, Florida and Mexico.
“Ag-Mart has repeatedly shown a stunning disregard of laws andregulations intended to protect the workers who harvest theirtomatoes, the people who consume them and New Jersey’s environment,”Commissioner Mauriello said. “Ag-Mart’s pesticide violations are themost serious DEP inspectors have ever uncovered. We have imposed arecord-high penalty not only to hold Ag-Mart accountable for theirfailure, but to make sure it doesn’t happen again.”
In 2006, the Florida farmworker family of Carlos Herrera Candelario,who was born without arms or legs, sued Ag-Mart over illegal pesticideexposure resulting in the boy’s birth defects. The case was settledout of court, with Ag-Mart agreeing to pay the medical expenses of theboy for life and provide him with a permanent income, but insistingthat the settlement was not an admission of guilt.
Both the $931,250 fine and the accompanying DEP orders to fully complywith all pesticide laws stem from a series of inspections at Ag-Martfarm properties during 2005, 2006 and 2007, a review of corporaterecords and interviews with Ag-Mart management and employees.
In May 2006, for example, Ag-Mart Produce barred a DEP environmentalinvestigator from inspecting facilities and forced the stateinvestigator to wait several hours before finally allowing access onlyto a portion of a packing house that was not at issue.
“Deliberately denying DEP inspectors the right to enter and inspecttheir agricultural operations is an egregious offense because itimpedes our ability to protect employees and the public from pesticidemisuse,” Commissioner Mauriello said.
The DEP’s Compliance and Enforcement inspectors’ investigation of thecorporate farm and its operations revealed a host of significantoffenses including Ag-Mart Produce’s failure to keep under lock andkey a highly toxic insecticide known as Monitor. Ultimately, Ag-Martcould not account for the 2.5 gallon container of the insecticide.
Other violations outlined in the DEP’s enforcement action include:applying pesticides more frequently than allowed by law and failing toprovide proper ventilation for chlorine vapors in the tomato packinghouse — an incident which affected three DEP inspectors during a sitevisit.
Further, DEP inspectors found that on 17 occasions the companyprematurely harvested pesticide-treated tomato crops, potentiallyexposing consumers to illegal pesticide residues in the marketplace.
Inspectors also discovered the company failed to adequately andaccurately document pesticide use in its fields. After poring overrecords from 2004 and 2005, DEP inspectors found documents weremissing critical information such as the correct times pesticides wereapplied and employees could be allowed to safely re-enter treatedareas as well as the name of the pesticide applicator and the size ofthe treated areas.
New Test Detects Triclosan in Water
(Beyond Pesticides, February 4, 2009) A new test for triclosan,developed by researchers at the U.S. Department of Agriculture’sAgricultural Research Service (ARS), could help to expediteenvironmental monitoring of this widely used antibacterial chemicalwhich has been found at high concentrations in rivers and other waterresources. Triclosan is linked to a range of health and environmentaleffects, from skin irritation, bacterial resistance and endocrinedisruption, to dioxin contamination and adverse impacts on fragileaquatic ecosystems.
The new test called “magnetic particle enzyme immunoassay,” can detecttriclosan at a concentration of 20 parts per trillion (ppt)-theequivalent of 1 ounce in 31 million tons. The research team at ARSevaluated the test by using it to detect triclosan and its derivative,methyl-triclosan, in river water, tap water and sewage samples fromthree municipal plants. They were able to detect triclosan below 20ppt (the detection limit), indicating very low levels of triclosan inthe collected samples.
ARS chemist, Weilin L. Shelver, at the ARS Animal Metabolism-Agricultural Chemicals Research Unit in Fargo, N.D., developed the newtriclosan test in collaboration with Jennifer Church, Lisa Kamp andFernando Rubio, a research team at Abraxis, Inc., of Warminster, Pa.Ms. Shelver says the test complements existing analytic methods, suchas the gas chromatography-mass spectrometry (GC-MS), and is notintended to replace them, especially for routine monitoring oftriclosan in a large number of water samples. The new test is faster,cheaper, and easier to use, especially for routine monitoring.
“This new technique is capable of measuring the triclosan content of alarge number of water samples much faster than previous methods,” saysMs. Shelver. “We plan on expanding the assay’s use into the detectionof triclosan in other environmental matrices and food.”
The researchers also tested wastewater samples. Their analysis showedthat, before treatment, triclosan levels sometimes exceeded 3,000 ppt,but after treatment, those levels fell below 500 ppt. According toShelver, the results confirmed other reports indicating that sewageplants’ purification steps removed some, but not all of the triclosanfrom water before it is discharged into the environment.
In the validation phase of their studies, the team compared the testresults to those generated by GC-MS instrumentation, which is verysensitive but costly and requires dedicated lab space, as well asspecialized training to use. In addition to correlating well with GC-MS analysis, the new test proved to be sensitive enough to distinguishtriclosan from chemically similar contaminants.
Triclosan is a widely used antibacterial agent found in hundreds ofconsumer products, from hand soap, toothpaste and deodorant to cuttingboards, socks and toys. A recent study found that triclosan altersthyroid function in male rats. Other studies have found that due toits extensive use in consumer goods, triclosan and its metabolites arepresent in waterways, fish, human milk, serum, urine, and foods. A U.SGeological Survey (USGS) study found that triclosan is one of the mostdetected chemicals in U.S. waterways and at some of the highestconcentrations. Triclosan has been found to be highly toxic todifferent types of algae, keystone organisms for complex aquaticecosystems. A recent U.S. Environmental Protection Agency (EPA) surveyof sewage sludge found that triclosan and its cousin triclocarban weredetected in sewage sludge at the highest concentrations out of 72tested pharmaceuticals.
For more information on triclosan and its impacts on human andenvironmental health, visit our Antibacterial program page.
Source: Agricultural Research Service (ARS)- Agricultural ResearchMagazine, Spectroscopy Now
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St. John's Daily Spray Advisory
My Past Articles
More enforcement needed for pesticide spray regulations
The Western Star (Corner Brook) - Final - 10-01-2002 - 413 words
Karen Griffin - Judie Squires says someone needs to patrol the companies that spray residential areas for pesticides because she's observed nine violations of the Environmental Protection Act in her Paradise neighborhood alone…
Spray woes: Province falling down on monitoring pesticides
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Judie Squires - environment to become poisoned? A temporary ban on all residential pesticides has to be put into place, to protect us, our wildlife and our environment as a whole. Judie Squires
Government lax on cosmetic pesticide regulation: advocate
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Stokes Sullivan, Deana - Despite increased awareness about adverse health effects from pesticides, Judie Squires, a member of the Pesticide Working Group of
Woman doesn't expect cosmetic pesticide ban any time soon
The Western Star (Corner Brook) - 08-30-2004 - 712 words
Stokes Sullivan, Deana - Despite increased awareness about adverse health effects from pesticides, Judie Squires, a member of the Pesticide Working Group of Newfoundland and Labrador, isn't optimistic that the province will ban the…
Province lagging behind in pesticide control
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Squires, Judie - it to do is to prohibit the cosmetic use of synthetic pesticides altogether in order to protect our citizens and the environment. Judie Squires writes from Portugal Cove-St. Philip's…
The two sides to pesticide use
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Judie Squires - health of your families. When
Inquiry implicates BTk
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DEANA STOKES SULLIVAN - of trees. The live spores can be inhaled by humans and animals exposed to BT. Judie Squires, secretary of the Northeast Avalon Group of the Sierra Club, says despite claims that…
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DEANA STOKES SULLIVAN - at the end of this year. These products will only be sold to certified dealers. Judie Squires, secretary of the newly formed Northeast Avalon Group of the Sierra Club, isn't…
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Time for provincial lawn pesticide regulation
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pesticides. Please join me in lobbying our province for a pesticide ban Judie Squires Portugal Cove...