City defends anti-mosquito spraying without permits Judge indicates he will rule shortly whether to allow environmental group's suit to move forward
 
Thursday, July 29, 2004

  By GLENN NYBAC
STATEN ISLAND ADVANCE
 

City environmental law attorneys claim the Environmental Protection Agency doesn't require the Health Department to obtain permits before it sprays pesticides to combat mosquitoes that can carry West Nile virus.

But an attorney from the environmental advocacy group No Spray Coalition -- which filed a lawsuit against the city to stop its use of pesticides -- contends the EPA's Clean Water Act aims for a "zero discharge goal," and that any pesticides that reach New York waters should be considered "toxic chemical pollution."

Yesterday, during a 90-minute hearing at the federal courthouse in Manhattan, U.S. District Judge George Daniels promised to rule "very soon" about whether to allow the lawsuit to move forward or toss it out of court. Attorneys from both sides told the Advance they hoped to have a decision within a few weeks.

"It doesn't make any sense that EPA ... would permit indiscriminately administering [pesticides] into our waterways," said Daniel Johannes, one of three attorneys representing No Spray and three other environmental groups that have signed on to the lawsuit.

But Christopher King, senior counsel for the city Corporation Counsel, said EPA tests of the waterways around the city have shown no adverse effect on water quality and said there are no requirements for a permitting process.

"The Department of Health would rather not spray," King said. "It is costly, it is burdensome and it is not without risk. But the [environmental groups] have failed to demonstrate that waters are being adversely impacted."

Each summer since 1999, when West Nile was first discovered in the metropolitan area, city health officials have used pesticides to kill mosquitoes that carry the disease.

Daniels said it is important to determine whether the use of pesticides will  have a significant effect on water quality several years from now. But he added that the No Spray Coalition's characterization of any pesticides that reach the water, regardless of the amount, as toxic chemical pollution is "a little extreme."

"There is no evidence in this case that water was ever tested and pesticide found," he said. "There will always be people out there [who] believe the spraying of chemicals will cause them some harm."

The suit, which was first filed four years ago, was thrown out by another judge in November 2002, but an appeals court overturned that decision in December, requiring another hearing.

Before the hearing, members of No Spray held a press conference to raise awareness of their effort to stop the spraying of pesticides in residential neighborhoods across the city.

Corresponding secretary Mitchel Cohen noted that his organization has received "hundreds" of calls from people claiming to suffer health effects as a direct result of the spraying.

"The city's claiming there were zero cases," he said. "They're lying through their teeth."  Cohen called on the city to stop its use of pesticides and hold public hearings to discuss alternate methods of attacking West Nile.

"It is outrageous that this is continuing and it has to stop," Cohen said.

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Glenn Nyback covers science and environmental news for the Advance. He may be reached at nyback@siadvance.com.