UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
NO SPRAY COALITION, INC., NATIONAL COALITION AGAINST THE MISUSE OF PESTICIDES, INC., DISABLED IN ACTION, INC., SAVE ORGANIC STANDARDS NEW YORK BY ITS PRESIDENT HOWARD BRANDSTEIN, VALERIE SHEPPARD, MITCHEL COHEN, ROBERT LEDERMAN AND EVA YAA ASANTEWAA,

Plaintiffs,

v.

THE CITY OF NEW YORK, RUDOLPH GIULIANI, as MAYOR OF THE CITY OF NEW YORK, THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK, NEAL COHEN, COMMISSIONER OF THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK, THE OFFICE OF EMERGENCY MANAGEMENT OF THE CITY OF NEW YORK, AND RICHARD SHEIRER, COMMISSIONER OF THE OFFICE OF EMERGENCY MANAGEMENT FOR THE CITY OF NEW YORK,

Defendants.

CIVIL ACTION
No. 00 Civ. 5395 (AGS)
(AGS)
Reply Declaration
Steven Greenspan

Steven Greenspan hereby declares under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. I submit this affidavit in response to the declarations of Gerard McCarty submitted by New York City. I submit this affidavit in further support of plaintiffs application for a preliminary injunction and in opposition to defendants' motion to dismiss the complaint.

2. I am a NYSDEC licensed pesticide applicator and recognized as a qualified trainer by the DEC. I head the Pesticide Education Safety and Training Institute, of which I am the executive director. I am a NYSDEC licensed pesticide spray applicator in three categories: Turf and Ornamentals (3A), Aquatics (5B), and Public Health Pest (Mosquito) (8). I have been NYSDEC certified since 1976. I have a bachelors degree in Environmental Science from the New York State College of Environmental Science and Forestry. In addition I have a bachelors of science degree in forestry from Syracuse University.

3. I note at the outset that Mr. McCarty does not appear to have any qualifications as a pesticide spray applicator. Mr. McCarty's suggestion that he was responsible for eradicating the asian longhorn beetle infestation in Greenpoint, Brooklyn is patently untrue, as these beetles still remain despite Mr. McCarty having arranged for the cutting down of all of the infected trees. I also note that Mr. McCarty does not even claim to have eyewitness knowledge of the actual spraying practices in the City's West Nile Virus efforts in 1999 and 2000, but bases his testimony solely on an assumption that his directives were in fact followed.

4. Mr. McCarty claims that New York City used "private certified applicators" to spray pesticides throughout the City. This itself admits a violation of DEC regulations, which provide that a "private certified applicator" may not engage in the commercial application of pesticides. 6 N.Y.C.R.R. § 325.7(c)(2). Application of pesticides as part of a public pest control program is the commercial application of pesticides. 6 N.Y.C.R.R. § 325.16(h). The applicators used by New York City were thus not appropriately qualified.

5. Mr. McCarty asserts in paragraph 8 of his declaration that Malathion is applied in "extremely low concentrations." This statement is manifestly untrue; as the label for Fyfanon indicates, the malathion concentration is 96.5%, an extremely high concentration, only 4% shy of being 100% pure active ingredient. Mr. McCarty erroneously equates low volume with low concentration. The high concentration of malathion in Fyfanon has important safety and health ramifications.

6. Mr. McCarty asserts that I am incorrect in my statement that recommended storage temperatures for the pesticide Fyfanon ULV (a concentrated form of the Malathion pesticide) should not exceed 77 degrees F. McCarty Dec. ¶ 37. Mr. McCarty relies on the statement on the Fyfanon label that states that the pesticide "must not be heated above 55( C (131( F)." Mr. McCarty has neglected to consult the Material Safety Data Sheet (MSDS) for Fyfanon, a copy of which is attached as Exhibit P to this affidavit. This MSDS clearly states "Precautions-Handling/Storing: STABLE WHEN STORED AT TEMPERATURES NOT EXCEEDING 20-25C." Twenty to 25 degrees centigrade corresponds to 68 to 77 degrees Farenheit. New York City clearly exceeded this stable storage temperature when it stored Fyfanon in barrels on an airport tarmac in direct sunlight at temperatures exceeding 77 degrees farenheit with no shield or shade or shade overhead. This MSDS also notes, under "Control Measures" that "Inexpedient stor[age] may induce form[ation] of more tox[ic] and synergistic contaminant isomalathion."

7. Mr. McCarty also claims that no pesticide spray drift reached water bodies either during the 1999 or 2000 aerial and ground spraying operations. Mr. McCarty does not claim to have observed all of the spraying operations, at each and every site location, so this appears to be his opinion rather than his own personal knowledge. It is my professional opinion, based on nearly a quarter century of experience as a professional pesticide applicator, is that the kind of wide-area spraying of fine-droplet application of pesticides being undertaken by New York City must necessarily result in the deposition of pesticide droplets into the contiguous bodies of water as well those lying within the five boroughs of New York City. Mr. McCarty asserts (¶ 10) that use of helicopters allowed New York City to control areas in which Fyfanon was applied, but use of aircraft does not allow control of where the pesticides will drift and ultimately settle and come to rest.

8. The very small droplet size of the pesticides used (fog-like) of the pesticides used by New York City resulted in a very buoyant and driftable pesticide particle. This kind of small droplet will actually float in the air, and will rise upward with thermal currents. Even small wind currents will carry these droplets around for some time at great distances before finally coming to rest to settle upon a surface. Given the fact that New York City is surrounded by water, in addition to the numerous lakes and ponds contained within the five boroughs, and the fact that New York City's ground and aerial spraying activities have been conducted from "river to river" in Manhattan virtually guarantees that a large proportion of the pesticides sprayed from either ground or aerial application will fall, settle, and finally come to rest upon surface waters. In addition, I am informed that television news footage from last year's spraying activities clearly showed helicopters spraying pesticides out over open bodies of water.

9. Spraying pesticides onto surface water is not the only way in which New York City's spraying activities continue to violate the label directions for use for Fyfanon and Anvil. The Fyfanon label clearly and prominently states "Avoid contact with skin*Avoid breathing spray mist." New York City Exhibit 5. Similarly, the Anvil label also states prominently under "Hazards to Humans and Domestic Animals . . . Avoid contact with skin, eyes, or clothing." I understand that New York City has repeatedly ground sprayed populated urban streets with Anvil from trucks. I understand that videotape of this summer's spraying activities shows individuals caught directly within the spray stream emitted from the trucks. This spraying activity is in direct violation of the label directive to avoid contact with human skin and avoid inhalation.

10. In addition, New York City's use of Anvil to spray paved and urban areas is not a use for which it has been approved, and thus violates the labeling requirements. The Anvil label defines its approved use area as follows:

USE AREAS: For use in mosquito control adulticiding involving outdoor residential and recreational areas where adult mosquitoes are present in annoying numbers in vegetation surrounding parks, woodlands, swamps, marshes, overgrown areas and golf courses.

A copy of the Anvil Label was submitted as New York City Ex. 6. Anvil is thus labeled for use where mosquitoes are present "in vegetation." While some areas where New York City has sprayed Anvil may qualify as vegetated, New York City is spraying largely paved, developed, and unvegetated areas, such as Manhattan between 23rd street and Central Park, with Anvil. These areas consist of asphalt, concrete, and steel, not vegetation. Application in these paved areas is not a use for which Anvil is labeled or approved.

11. Not only is New York City's application of Fyfanon and Anvil a violation of the labeling for use of these pesticides, it is ineffective as a means of mosquito control. Because of the "urban canyon" effect and microclimate that exists within the avenues and corridors within New York City, neither ground nor aerial spraying will be particularly effective in delivering adulticides to areas located behind buildings and in all hard to reach places, cracks and crevices where mosquitoes are most likely to be found hiding within populated, developed areas. Adulticiding in these developed areas is not likely reduce mosquito populations to the point at which they would not be considered a threat, given the breeding efficiency of the mosquito population that would remain. Elimination of standing water and application of larvicide to breeding areas is a much more effective means of controlling mosquitoes, especially in backyard areas. A massive educational program for integrated pest management should be implemented first, and could have been achieved at lower cost with greater efficiency as opposed to spraying with toxic and harmful chemicals. Due consideration should be given botanical (plant derived) control measures. In addition, new mosquito control technologies, such as carbon dioxide traps which attract mosquitoes are likely to be more effective at controlling adult mosquitoes without having any of the adverse toxic effects of pesticides.

Dated: August 24, 2000

______________________________
Steven Greenspan