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In The News Outcry, legal fight over moth spraying build in California
By Garance Burke
4:24 p.m. October 17, 2007

FRESNO – First, coastal communities were doused with a pesticide aimed at a crop-eating moth.

Two weeks later, federal regulators let slip that the mist coating residents' rooftops, gardens and playgrounds – a substance they'd certified as safe – actually contained a chemical thought to trigger asthma.

That landed the ongoing pest control program in court, and grounded the planes for a week.

But with that moratorium set to expire Thursday, and a hearing scheduled for the same day in a lawsuit that seeks to stop the spraying, the exact ingredients of the pesticide are shrouded in mystery and confusion, partly because the manufacturer says that information is a trade secret.

That has left some families questioning whether federal laws value intellectual property over public health.

“I would love for this to be as completely harmless as the manufacturer and the state claim it is, but I have certainly not seen any hard science to prove this,” said Emily Tonkin, a Pacific Grove mother whose son developed strep throat after the first round of aerial treatment last month. “Just a lot of song and dance.”

The organic farms and nurseries of California's central coast are the epicenter of the battle against the light brown apple moth, an invasive species from Australia that has now infested 12 counties stretching from north of San Francisco to Los Angeles.

The U.S. Department of Agriculture fears that if the moth, which consumes 250 varieties of plants, crosses into the San Joaquin Valley, the infestation could cause up to $2.6 billion in losses.

Rather than blanket the state with harsh, general-use pesticides, agricultural authorities thought CheckMate, a pheromone spray developed specifically to keep the moth from mating without killing it, was an environmentally friendly solution. But after planes dropped 1,695 pounds of the mixture on a 60-square-mile area, hundreds of residents reported shortness of breath and sharp stomach pains.

An environmental group sued, claiming the state had broken the law by not preparing an environmental impact report to ensure the chemical droplets were safe for humans and aquatic life. “In the absence of testing, the state evidently feels fine in saying this is safe,” said Alexander Henson, an attorney for the nonprofit Helping Our Peninsula's Environment.

The debate centers on a chemical called polymethylene polyphenyl isocyanate, which may or may not be an inert ingredient in CheckMate.

That compound – also used to make industrial foam – is part of a chemical class known to exacerbate asthma and respiratory symptoms in sensitive groups, according to Dr. Scott Masten, a scientist with the National Institutes of Health.

An official with the U.S. Environmental Protection Agency told the Santa Cruz Sentinel – apparently mistakenly – that polymethylene polyphenyl isocyanate was an inert ingredient in CheckMate. And a Monterey County Superior Court judge subsequently identified it as such in an order granting the environmental group's request to temporarily halt the spraying.

But on Monday, the EPA suddenly reversed course, saying two versions of CheckMate that agriculture officials reported applying last month didn't contain the ingredient, after all. The agency went public with the announcement “to ensure that neither the parties nor the court are relying on erroneous information,” said spokesman Dale Kemery.

State and federal regulators have joined CheckMate's manufacturer, Oregon-based Suterra LLC in insisting the pesticide is harmless, and in asserting the company's right to keep its ingredients from the public under federal laws governing intellectual property.

“We based the program on years of strong science,” said Steve Lyle, a spokesman for the California Department of Food and Agriculture. “This type of pheromone has been successfully applied in many other areas.”

The Federal Insecticide, Fungicide, and Rodenticide Act allows the government to keep secret the so-called inert ingredients, or elements that don't affect the pesticide's toxicity, so competitors can't copy each others' formulas.

But the latest round of back-and-forth has only heightened residents' concerns about the safety of the spraying program.

“The information is out and the trust is gone,” said Donald Rhoads, an intellectual property lawyer who specializes in pesticide cases for Kramer, Levin in New York. “But if the EPA is wrong about those ingredients being inert, then there's a problem.”

More information will likely emerge soon: On Wednesday, Suterra lost its request to keep court documents in the case under seal.

The judge's order to stop the spraying stays in effect until Thursday, when lawyers for the state and the environmental group will present evidence about the program's health risks.

Judge Robert O'Farrell's subsequent ruling will determine whether the spraying can start anew.

Still, Secretary of Food and Agriculture A.G. Kawamura has warned Santa Cruz County officials that if the state is blocked from fighting the pest, the USDA could step in and take over.

If so, more debate seems certain.

“Given all that's come up with this, it seems at some level unwise to have embarked on an aerial spraying campaign,” said Ted Schettler, a doctor with the nonprofit Science and Environmental Health Network, in Ann Arbor, Mich. “Somebody wasn't thinking.”

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