Court orders limited use of pesticide near schools

Ken Mclaughlin / San Jose Mercury News 1sep01

The judge's decision requires that officials take steps to ensure that levels of methyl bromide used on strawberry near a pair of schools don't exceed state standards.

Amid warnings from agricultural officials that his ruling could drive some strawberry growers out of business, a Monterey County judge Friday issued an apparently unprecedented order limiting the amount of spraying of the pesticide methyl bromide near two schools.

Judge Robert O'Farrell, the presiding judge of Monterey County Superior Court, said he issued the temporary restraining order to protect children at Pajaro Middle School and La Joya School in Salinas from potentially harmful exposure to the toxic chemical.

``Effectively you would put strawberry growers out of business,'' county Agricultural Commissioner Eric Lauritzen told the judge at a hearing Thursday. ``They would not plant.''

The judge conceded his actions could hurt some growers in an industry that last year grossed $227 million in Monterey County, but added: ``Before we had methyl bromide, we had strawberries.''

He scheduled an Oct. 3 hearing to consider whether to issue a preliminary injunction in the case. If that injunction is granted, California Rural Legal Assistance will seek a permanent order restricting the spraying near schools.

O'Farrell issued Friday's order in response to an Aug. 23 brief filed by attorneys for California Rural Legal Assistance on behalf of Sergio Carrillo, a man who lives near the Pajaro school. The suit was filed against the state Department of Pesticide Regulation and the county Agricultural Commissioner's Office.

The judge's order requires the department and the commissioner's office to ``take immediate proactive measures to assure that the atmospheric concentrations'' of the fumigant at the schools do not exceed state guidelines of 1 part per billion. In addition, within 1,000 feet of both schools, the plastic used to cover the fields after the pesticide application must remain securely in place for 10 days rather than five.

``This is a very positive step to protect the health of young, developing children,'' said an elated Mike Meuter, the lead attorney in the case.

Both he and Lauritzen said it was the first case they knew of in which a judge had placed such strict limits on the use of methyl bromide around specific sites.

Lauritzen said Friday he had significant concerns about how the monitoring will be conducted, particularly because state regulations call for measuring methyl bromide levels over an eight-week period -- not at one point in time.

``I really don't know what we'll do,'' said Lauritzen, expressing concern that local growers will be put at a competitive disadvantage.

The suit argued that state and county officials had failed in their statutory duty to protect people living near the schools after air quality tests near both schools picked up concentrations of the fumigant that exceeded state guidelines.

``A public health train wreck is imminent again this year,'' attorneys Meuter and Cynthia Rice wrote in their brief.

At Thursday's hearing in Monterey, lawyers representing pesticide companies, growers, Monterey County and the state Attorney's General's Office argued that the levels of methyl bromide being used were safe even though they exceeded state guidelines.

Methyl bromide is an odorless gas injected into the soil to sterilize it and kill weeds, fungus and insects. Used widely in the strawberry-rich Salinas and Pajaro valleys, the pesticide has been linked to birth defects and neurological damage. The substance has caused the deaths of more than a dozen burglars and transients who entered houses sprayed with methyl bromide to kill termites.

Starting in 2006, the federal government will ban the use of the substance because it has been shown to break down the Earth's ozone layer. Farmers have been scurrying for alternative fumigants and continue to argue that it could devastate agribusiness.

During September, October and November of 2000, the state Department of Pesticide Regulation carried out air quality tests at six schools in Monterey and Santa Cruz counties. They found the highest concentrations of the chemical -- 7.7 parts per billion -- near the Pajaro school. Levels of 3.8 parts per billion were measured near La Joya School.

The state's ``target'' threshold is an average of 1 part per billion exposure for children over an eight-week period, and 2 parts per billion for adults. But attorneys for the state argued that the threshold includes a 100-fold safety margin, so that the levels of the fumigant measured at the two schools didn't represent an imminent health threat.

But O'Farrell said: ``Right now school is in session and we have high readings. . . . We're talking about children.''