Legal News: Rodenticide Case; Motion Denied On Mercury Rules; Del Monte Superfund Consent Decree

Court Finds EPA Fails To Protect Children From Rodenticide

On Aug. 8, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York (http://www.nysd.uscourts.gov) found that EPA failed to justify its 2001 agreement with pest control companies to remove requirements to protect children from exposure to rat poisons.

The decision was the result of a November 2004 lawsuit filed in New York City's federal district court by West Harlem Environmental Action and the Natural Resources Defense Council (NRDC). The groups challenged EPA's regulations under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Administrative Procedure Act (APA).

The dispute concerns regulations EPA issued in 1998 to requiring pest control companies to protect children by including ingredients that make the poison taste more bitter and a dye that would make it more obvious when a child ingested the poison. In 2001, the requirements were rescinded on the basis that the provisions would make the poison less attractive to rats and could damage household property.

The rat poison is often in the form of pellets that children mistake for candy. Millions of pounds of rat poisons are applied nationally every year. In New York City, for example, rat poisons are used heavily in public housing, public schools and city parks.

Tens of thousands of children under age six are poisoned every year, and several hundred require hospitalization. Poisoned children can suffer from internal bleeding, bleeding gums and anemia, and can go into a coma. According to U.S. poison-control centers, rat poisoning is on the rise with African American and Latino children disproportionately affected.

Rakoff rejected the agency's reversal, finding that its justification for dropping a key safety measure "lacked even the proverbial 'scintilla' of evidence."

"This is a major victory for children's health -- and for common sense," said Aaron Colangelo, an attorney with NRDC. "Parents now will be able to protect their kids and deal with rodent problems in their neighborhoods at the same time. There's no reason why any of our kids should be accidentally poisoned, because it's relatively easy to protect them."

The judge instructed EPA to reconsider the rule. An official with the National Pest Management Association, in a Washington Post article, stated that he was confident that the agency would, after further examination, reach the same conclusion it did in 2001.

Court Refuses To Block EPA Mercury Rules

The U.S. Court of Appeals for the District of Columbia ( http://www.cadc.uscourts.gov/internet/internet.nsf) denied a motion to block the Bush administration from implementing regulations on mercury pollution power plants.

Environmental and health advocacy groups and several states are challenging the regulations adopted in March by EPA (see http://www.epa.gov/air/mercuryrule), stating that the provisions fall far short of the measures needed to protect human health and the environment. They also petitioned the court to set aside the regulations until the case was heard.

However, Judges David Sentelle and Janice Rogers Brown denied the motion without comment in an order filed on Aug. 4.

On Aug. 10, Michigan officials added the state to the list of states challenging the regulations: California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, New Jersey, New Hampshire, New Mexico, New York, Pennsylvania, Vermont and Wisconsin.

EPA, Del Monte Consent Decree Calls For $13 Million Cleanup

EPA recently reached an agreement with Del Monte Fresh Produce that requires the company to clean up soil and groundwater contamination at the Del Monte Superfund site in Central Oahu.

Under the terms of the consent decree, which the agency announced on Aug. 10, Del Monte Fresh Produce will carry out the EPA-approved cleanup plan, estimated to cost approximately $13 million with a completion date expected in 2014. The company has also agreed to pay the EPA's past and future oversight costs at the site.

"Our agreement with Del Monte Fresh Produce will result in the removal of the contamination from the soil and groundwater," said Keith Takata, director for the EPA Pacific Southwest Region's Superfund Division. "This is a critical step in getting the site removed from the Superfund's National Priorities List."

Cleanup of shallow groundwater at the site has started by using Koa Haole plants, in a process called phytoremediation. The deep groundwater in the area will be pumped and cleaned using air stripping and carbon filters. The cleanup will also restrict land use to prevent exposure to the contaminated groundwater and prevent activities that might interfere with the effectiveness of the cleanup.

On Aug. 4, the U.S. Department of Justice lodged the decree with the U.S. District Court for the District of Hawaii (http://www.hid.uscourts.gov). After public comment period of 30 days, the federal government will make a motion to the court to enter the consent decree.

Additional information on the Del Monte Superfund site and other Superfund sites in EPA Region 9 can be accessed at http://www.epa.gov/region09/waste/sfund.

This article originally appeared in the 08/01/2005 issue of Environmental Protection.

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