No-Spray

Suit Over West Nile Spraying Goes Forward Against City

New York Law Journal June 13, 2005

By Mark Hamblett

A FEDERAL JUDGE has refused to dismiss a lawsuit claiming that New York city violated the federal Clean Water Act when it sprayed to prevent West Nile Virus.
Southern District Judge George B. Daniels said it would be up to a jury to decide whether the city violated the act by spraying over water from a helicopter in 1999 and 2000.
The decision in No Spray Coalition, Inc. v. The City of New York, 00 Civ. 5395, also denied the summary judgment motion brought by the coalition, which has challenged the city’s spraying program on several fronts since it began confronting West Nile in the late 1990s.
The city acted after some residents of Queens, followed by residents of other boroughs, became ill from the mosquito-born virus. The city began spraying by helicopter and truck in 1999 and has continued spraying each year with the reappearance of the virus.
Opponents of the program sued in 2000, but their claims under the Resource Conservation and Recovery Act and the state and city Environmental Quality Review Acts were dismissed.
But the district court refused to rule on claims brought under the Clean Water Act, leaving “for another day the question of whether spraying insecticides directly over rivers, bays, sound and ocean surrounding New York City as part of a prevention program would violate the Clean Water Act.”
Nonetheless, discovery was allowed to proceed on the Clean Water Act claim, which alleged the city violated §301(a) by discharging pollutants into navigable waters without either a National Pollution Discharge Elimination System (NPDES) permit or a State Pollution Discharge Elimination System (SPDES) permit.
After discovery, the District Court granted summary judgment for the city, saying the Clean Water Act does not allow citizens to enforce its provisions by brining suit.
The U.S. Court of Appeals for the Second Circuit reversed and the case was sent to Judge Daniels for renewal of the motions for summary judgment.
Judge Daniels said the two sides disagreed over whether the city’s actions could constitute and Clean Water Act violation. And even if its actions could amount to a violation, he said, the two sides disagree over whether there has been sufficient evidence for a finding, as a matter of law, that the city “did or did not violate” the act “by conducting its spraying without an NPDES permit.”
Among the evidence presented by the plaintiffs, Judge Daniels said, was that the city sprayed “directly over lakes, streams, ponds and marshes,” including a helicopter spraying over a marina at City Island in both 1999 and 2000 and another helicopter spraying over Mount Loretto Pond and adjacent wetlands on Staten Island. Other allegations include the Bronx River and Staten Island’s Clove Lake.
The city answered that the program does not involve the direct discharge of a pollutant into navigable waters and that it followed strict guidelines protecting against the direct application of insecticides into water. The guidelines contain setbacks of varying distances from bodies of water, such as aerial spraying no closer than 300 feet from water.
The city also argued that some of the alleged spraying involved no more than “atmospheric emissions” of pesticides that “do not constitute discharges” and that residual particles of pesticide that may have reached the water did not amount to a discharge of a pollutant in violation of the Clean Water Act.
But Judge Daniels said the definitions of an “addition” of a pollutant to water is “simple and plain.”
“The amount that is discharged does not affect a finding that an addition has taken place. Nor does the fact that the pesticide is initially sprayed into the air as a fine mist, if the mist descends downward toward water,” he said. “Moreover, it would be unreasonable to distinguish between a sprayed releasing a fine mist pollutant into the atmosphere over the water and a pipe that released the same single flow of pollutant directly into water.”
The reason, he said, was that violators of the act would be able to escape the consequences by simply attaching an “airborne mist blower or hydraulic sprayer to their pipe to discharge a pollutant over the water in order to escape liability or regulation.”
And Judge Daniels termed “faulty” the city’s argument that its compliance with the Federal Insecticide, Fungicide, and Rodenticide Act freed it from having to obtain an NPDES permit.
“The City did not have permission to spray pesticides directly over or into the water under any state or federal law,” he said. “If the City did discard the pesticides over the water, it did so in contravention” of the Clean Water Act.
Because disputed issues of material fact exist over whether the city actually discharged a pollutant, he denied the motion for summary judgment.
Karl Coplan of the Pace Environmental Litigation Clinic, representing the No Spray Coalition, said the decision “will clearly affect the scope of the spraying they are allowed to do.”
Christopher King, senior counsel in the Corporation Counsel’s environmental law division, represented the city.
- Mark Hamblett can be reached at mhamblett@alm.com

Note : The New York Environmental Law & Justice Project,(Joel R Kupferman) is co-counsel to Pace Environmental Litigation Clinic. The Law Project wrote the original Intent to Sue letter against the City - which initialed the present legal action.

EPA sues a pesticide spraying company violating pesticide rules

>For Release: Thursday, January 6, 2005
>
>(#05001) NEW YORK, N.Y. -- The U.S. Environmental Protection Agency
>(EPA) has filed a complaint against Clarke Environmental Mosquito
>Management, Inc. for violating the Federal Insecticide, Fungicide and
>Rodenticide Act between May and November of 2000. During that period,
>the company applied pesticides throughout the five boroughs under a
>contract with the New York City Department of Health to control
>disease-carrying mosquitos and reduce the risk of West Nile Virus.
>Clarke Environmental is headquartered in Roselle, Illinois.
>
> EPA is seeking penalties of $742,500 against the company for having
>pesticide applicators use the registered pesticides Anvil and Vectolex
>in a manner not permitted by the labeling.
>
> "In an atmosphere of heightened concern about the spread of West
>Nile Virus, Clarke Environmental sent its employees out into the
>neighborhoods of New York City to apply mosquito control sprays with
>disregard for their health," said Kathleen C. Callahan, Acting EPA
>Region 2 Administrator. "By failing to comply with label precautions,
>the company allowed the workers to be exposed daily to the potentially
>harmful effects of the chemical ingredients of these products, clearly
>violating federal pesticide rules."
>
> Clarke Environmental has the opportunity to plead its case before
>an administrative law judge or to contact EPA to negotiate an informal
>settlement of the matter.

• ==stay tuned for NYELJP COMMENTS ...... the project (with a push from the No Spray Coalition) goaded the EPA to take the misspraying seriously.

• ==the NYC Health Department contracted Clarke Environmental and repeatedly assured us that all was fine!.
  

(7/29/04) July 28, 2004 - Click here to view the Channel 11 (wb11) coverage of the court case. (represented by the Pace Environmental Law Clinic and New York Environmental Law and Justice Project. )

(6/25/03) 2002 U.S. Department of Health and Human Services Public Health Reports Public Health Rep 2002; 117: 574-586 November, 2002 / December, 2002 Moving Further Upstream: From Toxics Reduction to the Precautionary Principle by BRIAN MAYER, MA, PHIL BROWN, PHD, MEADOW LINDER, BA

(6/19/03) NY Post 6-16-03 West Nile Team Tumult As Top Staff Bugs Out by Heidi Singer

(6/19/03) This is what to do if you should get sprayed with pesticide:.....

=========================================================================================

>>> DOHMH Announcements 06/18/03 10:50AM >>>
>FOR IMMEDIATE RELEASE
>Tuesday, June 17, 2003
>(212) 788-5290; (212) 764-7667
>
>LARVICIDE APPLICATION BY HELICOPTER SCHEDULED IN MARSH AND WETLAND AREAS OF STATEN ISLAND
>
>Application to Take Place Thursday & Friday, June 19 - 20, 6:00 A.M. - 9:00 P.M., Weather Permitting; New Yorkers Urged to Report Dead Birds to 3-1-1 or Online at nyc.gov/health/wnv
>
>NEW YORK CITY - June 17, 2003 - The New York City Department of Health and Mental Hygiene (DOHMH) announced today that, to curtail increased larval mosquito populations as early in the season as possible, it will apply larvicide by helicopter to marsh and wetland areas of Staten Island (see below) on Thursday and Friday, June 19 and 20, between the hours of 6:00 A.M. - 9:00 P.M., weather permitting. While two days are being allotted for this activity, if weather permits, the application may be completed in less time. The application of larvicide is necessary to control larval mosquito activity detected in these areas. Tomorrow, DOHMH will also begin the application of larvicide to more than 135,000 catch basins citywide.
>
>The marsh (non-residential) areas to be treated include the Saw Mill Marsh area bordered by Victory Boulevard to the South, Edward Curry Avenue to the North and South Avenue to the West. Due to their size and difficulty to reach by ground vehicles, the targeted marshes and wetlands will be treated with larvicides from a low-flying helicopter.
>
>The larvicide product - VectoLex CG, a natural bacterial agent - is the same product DOHMH used last year for aerial application. VectoLex will be used throughout the mosquito season to treat catch basins and other areas of standing water. Additional surveillance activity is currently being conducted to determine whether further application of larvicide in these areas will be necessary.
>
>DOHMH Recommendations to Control Mosquitoes
>
>· Eliminate any standing water that collects on your property:
> o Dispose of containers that can collect standing water.
> o Make sure roof gutters drain properly.
> o Clean and chlorinate swimming pools, outdoor saunas and hot tubs. Keep empty and cover if not in use.
> o Drain water that collects in pool covers.
> o Change water in bird baths every 3 to 4 days.
> o Turn over plastic wading pools and wheelbarrows when not in use.
> o Remove discarded tires on your property.
>· Remind or help neighbors to eliminate breeding sites on their properties.
>· Repair or replace all screens that have tears and holes.
>
>About West Nile Virus
>
>West Nile virus (WNV) is a mosquito-borne disease that infects humans, birds, horses, and other mammals. Since its appearance in North America in 1999, WNV has spread across the continental United States and in 2002 caused the largest outbreak of mosquito-borne encephalitis and meningitis ever in the western hemisphere, involving more than 4,000 human cases and more than 280 deaths. In New York City in 2002, there were 29 reported cases of West Nile virus and three WNV-related deaths. WNV is usually spread to humans by the bite of an infected mosquito, though evidence has shown it can be transmitted through blood transfusions or organ transplants, from mother to unborn fetus via the placenta, and from mother to infant through breast milk. West Nile virus is NOT spread by person-to-person contact such as touching, kissing, or caring for someone who is infected.
>
>A full summary of WNV activity in New York City in 2002 is available online at http://www.nyc.gov/html/doh/html/public/press03/pr005-0122.html. For more information or educational materials on WNV, call 3-1-1 or visit nyc.gov/health/wnv.
>
>To report dead birds online, visit: http://www.nyc.gov/html/doh/html/wnv/wnvbird.html.
>
>To report standing water online, visit: http://www.nyc.gov/html/doh/html/wnv/wnvwater.html.
>

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