18
Oct
Washington DC Sues for Damages from Historical Pesticide Contamination, as Threats Persist
(Beyond Pesticides, October 18, 2022) Washington, D.C. Attorney General (AG) Karl Racine is suing chemical manufacturer Velsicol to recover damages caused by the company’s production and promotion of the insecticide chlordane despite full knowledge of the extreme hazards posed by the pesticide. Over 30 years after it was banned, chlordane is still contaminating homes, schools, yards, private wells and waterways throughout the United States, including DC’s Anacostia and Potomac rivers. While the District’s focus on restitution and remediation for this highly hazardous, long-lived insecticide is laudable, many advocates say the city is not doing enough to stop pesticide contamination currently entering the city’s waterways. Despite passage of a strong pesticide bill in 2016 limiting toxic pesticide use on schools, child occupied facilities, and within 75ft of a waterbody, D.C. Department of Energy and Environment (DDOE) director Tommy Wells has failed to update regulations and enforce the law.
Chlordane is an organochlorine insecticide, of the same class as DDT, and was likewise discussed extensively in Rachel Carson’s Silent Spring. Like other organochlorines, it is bioaccumulative, increasing contamination levels as it works its way up the food chain, and highly persistent, remaining in the environment for decades and perhaps even centuries, with breakdown products of similar toxicity to the parent compound. The chemical has been associated with diabetes, developmental disorders, miscarriage, depression, bone marrow diseases, and is a potent carcinogen. More recent data have linked the chemical to autism and endometriosis. Sales of chlordane began in the mid-1940s and continued until 1988, when the US Environmental Protection Agency (EPA) finally banned its remaining uses for household termite applications.
By that time, per EPA estimates, chlordane had been applied to 30 million homes in the United States. This contamination persists today. Chlordane has been discovered on the grounds of a New Jersey middle school at levels above EPA limits, in the private wells of many Connecticut residents, in what were once considered “pristine” National Parks, and in coral reefs along the South China Sea.
In Washington DC, the year before chlordane was banned, it was found in Potomac and Anacostia River fish at levels three times above what the US Food and Drug Administration considered safe for human consumption at the time. AG Racine notes in the legal filing that 38 miles of D.C.’s waterways are out of compliance with water quality standards for chlordane, making it impaired under the Clean Water Act. D.C. has spent tens of millions of dollars adding filters in catch basins and stormwater outfalls and investigating chlordane contamination in Anacostia and Potomac river sediment.
In it’s release for the lawsuit, the Attorney General’s office explains that the harm caused chlordane pollution has fallen most sharply on the District’s communities of color. “The environment is a precious resource that belongs to everyone, and far too often Black and brown communities of color are forced to bear the brunt of pollution, toxic sites, and contaminated water supplies,” said AG Racine. “With today’s lawsuit, we are going after Velsicol which – for decades – made dollar after dollar of profit while poisoning DC residents with dangerous chemicals that they knew caused severe health problems, including cancer. The damage that Velsicol caused will continue to impact the health of communities in the District of Columbia far into the future, particularly Black and brown community members, as these chemicals persist in our environment and continue to wreak havoc on our natural resources.”
“The fact that there continues to be contamination from chlordane, decades after its removal from the market, is testament to the abject failure of our federal and state pesticide laws,” said Jay Feldman, executive director of Beyond Pesticides. “EPA permits a legacy of health and environmental threats because of poor analyses on the front-end, ineffective mitigation measures, and slow negotiated phaseouts that extend the deleterious effects of pesticides well after findings of harm,” Mr. Feldman continued. Beyond Pesticides (then the National Coalition Against the Misuse of Pesticides/NCAMP sued EPA (see The Washington Post and The New York Times) in the late 1980’s when the agency negotiated an agreement with Velsicol to phase-out chlordane use and allow all existing stocks to be used up. Then the issue was cancer and the judge in the case found that the additional cancers that would be caused by leaving the chemical in commerce for the phase-out period, including the cost to cancer victims, were unacceptable. On a regulatory level, the judge also found that EPA’s failure to evaluate the harm caused during the phase-out period was a violation of the agency’s responsibility under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The District Court’s finding was reversed on appeal, but by then, EPA had negotiated a shortened phase-out period and established a recall/buy-back program, something the agency rarely does. For a history lesson in the failure of FIFRA, see National Coalition Against the Misuse of Pesticides, et al., Appellees, v. Environmental Protection Agency, et al., Appellants, 867 F.2d 636 (D.C. Cir. 1989). “The chlordane story is a vivid telling of federal regulators’ failure to use their discretionary authority to curtail corporations from causing an “imminent hazard” with toxic pesticide use and the resulting decades of destruction and health threats that continue to destroy people’s lives and the environment,” said Mr. Feldman. “After repeating this tragedy with newer generations of pesticides, the only reasonable path forward is to stop the pesticide treadmill by phasing out all toxic pesticides, while transitioning to an organic society,” he said.
Pesticide use is an environmental justice issue. Yet unfortunately, many of the same practices that permitted this contamination to occur in the first place are being repeated today. EPA continues to register pesticides without full accounting of the impacts to health and the environment, particularly chronic, long-term effects, and impacts on vulnerable communities, such as children, pregnant mothers, immunocompromised individuals, and people of color. In the lawsuit, Velsicol is cited for covering up a study showing chlordane caused cancer, which resulted in criminal charges for Velsicol executives. As it currently stands, manufacturers are still permitted to conduct tests on the pesticides they produce, and because of the elimination of statutes like the Delaney Clause for pesticide registrations, which forbid the use of products found to induce cancer, a wide range of products on the market today are carcinogenic. Further, EPA has effectively provided cover for products like glyphosate, which published studies show to be carcinogenic yet are ignored by EPA in favor of studies conducted by the manufacturer. Federal regulators are similarly slow to take needed protective action. Use of chlordane began in the 40s yet continued until the late 80s; like other ‘slow plays’ by the agency, as recently evidenced by how it dealt with the insecticide chlorpyrifos, EPA eliminates certain uses of a pesticide but keeps it on the market, registered for other uses. In the case of chlordane, termiticide uses continued to poison the homes, yards and private wells of families around the country, resulting in calls for a country-wide Superfund designation by advocates.
Not only is historical pesticide use still hurting communities of color, but current use pesticides are further compounding these harms. Chlordane contamination presents a significant threat to public health, yet so does glyphosate contamination. A study by the National Park Service found glyphosate and over a half-dozen other current-use pesticides present in vernal pools and waterways in D.C.’s Rock Creek Park. Research published by The Black Institute in 2020, titled Poison Parks, shows in detail how pesticides like glyphosate are disproportionately sprayed in communities of color. Although focused on data from New York City, this trend is likely to hold in major metropolitan areas throughout the United States.
In 2016, the D.C. City Council updated its pesticide laws to reflect a changing regulatory landscape, and better protect residents and the local environment from present-day pesticide contamination. The update was necessary after officials at DDOE failed to properly implement a 2012 law with similar provisions. Advocates returned to the D.C. Council and successfully passed the 2016 update. Yet now, after passage six years ago, DDOE Director Tommy Wells has still not implemented the law.
Thus, while the city makes efforts to remove historical contamination, it is doing nothing to prevent to new pesticides, which pose variety of hazardous chemistries and transformation products, from continuing to contaminate District waterways. Neither DC nor any other community in the U.S. can afford to continue to repeat the same mistakes when it comes to pesticide regulation. With EPA unable to provide effective protections, it is critical that localities take action to pass and implement safer practices for their residents and unique local environments. Help bring these safer practices to your community by telling your mayor or county executives to transition to nontoxic, organic land care practices today.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Office of the Attorney General for the District of Columbia press release, DC AG Legal Complaint
