February 23, 2008
Farmworker Groups Ask Judge to Undo EPA's Decision on Pesticide
By GENE JOHNSON
AP Legal Affairs Writer
SEATTLE (AP) -- One day in 1995, Juan Angulo arrived for work at an Eastern Washington apple orchard only to begin vomiting. A terrible headache gripped him, and his eyes and nose began to run. The same thing happened to the rest of his work crew, all from exposure to a pesticide called AZM, Angulo believed.
"To this day, I still experience severe headaches, which I attribute to this poisoning incident," he said in a court declaration last fall.
Citing his case and others, lawyers for the United Farmworkers argued to a federal judge Friday that the Environmental Protection Agency's decision to allow the use of AZM until 2012 was unconscionable. The EPA did not consider harm to farmworkers, their families, or to rivers, lakes and salmon, they said, and the agency should be forced to reconsider.
"There are workers getting sick," Patti Goldman, of the environmental law firm Earthjustice, told U.S. District Judge Ricardo S. Martinez. "This isn't just hypothetical. There are workers being taken out of the field."
AZM stands for azinphos-methyl. It was derived from World War II-era nerve gas agents and has been used as a pesticide since the late 1950s. Because of its danger, the EPA in 2001 barred growers from using AZM on two dozen crops, including cotton, cabbage and grapes. That helped cut nationwide use of AZM roughly in half by 2006 - from 1.9 million pounds to 920,000 pounds.
But the EPA continued to allow AZM treatments on apples, pears, cherries, blueberries, parsley and other plants while it waited for cost-effective alternatives to emerge.
In 2006, the EPA decided to phase out all uses of the pesticide by 2012 - two years later than it had initially proposed.
Cynthia Morris, a Justice Department lawyer who argued on the agency's behalf, told the judge that the short-term benefits of allowing growers to keep using AZM for the next five years outweigh the potential harm. It could cost apple growers nationwide tens of millions of dollars to switch to alternative pesticides more quickly, she said, and in some cases other countries do not allow the import of apples with residue from those alternative pesticides.
Furthermore, she added, the later phase-out date prompted growers to voluntarily take measures to ease the impact of the pesticide until it is phased out, such as imposing buffer zones and training workers to avoid exposure. An attempt to ban AZM more quickly would likely result in a prolonged legal fight with the industry, during which no such efforts would be made.
"The workers are more protected with the mitigation procedures in place," Morris said.
She argued that the agency's decision was reasonable, and failed to meet the "arbitrary and capricious" standard for the judge to undo it.
Goldman responded that the mitigation measures are far from adequate; for example, she said, they include no requirements that children be protected from AZM that drifts onto nearby fields during application. In its cost-benefit analysis, the EPA did not weigh harm to the environment or long-term health effects.
And allowing AZM use to continue until 2012 is simply against the law, she added.
"EPA cannot allow a pesticide to be used if it has unreasonable adverse effects," Goldman said.
In 2004, Washington state began monitoring workers exposed to AZM. Tests showed that 10 percent to 20 percent of the workers tested had depressed levels of cholinesterase, a blood enzyme essential to proper functioning of the nervous system.
Martinez said he would rule as soon as possible.
