Obama Justice Department Moves To Keep Apple Moth Spray Secret

By Richard Brenneman
Tuesday February 10, 2009 - 06:55:00 PM

For one prominent Bay Area attorney, the bloom is already off the Obama rose. 

Stephan Volker is the lead attorney in a case which pits a group of plaintiffs, including the North Coast Rivers Alliance, an Air Force major and his son, a Santa Cruz City Councilmember, the mayors of Richmond and Albany and others, against the federal Environmental Protection Agency (EPA). 

The action for declaratory relief, filed Nov. 25, seeks to overturn the EPA’s approval of the pesticide Checkmate for use against the Light Brown Apple Moth—LBAM for short. 

Volker, a Richmond resident with his law office in Oakland, said he had hoped the administration of President Barack Obama would open up a new era of openness at the EPA—a federal agency which had frequently sided with corporate interests during the George W. Bush years. 

When it comes to disclosing the ingredients in the controversial pesticide, “This new administration is just like the old one,” he said. “When you peel off the cover, it’s the same book underneath.” 

On Feb. 2, the U.S. Department of Justice, acting on behalf of the EPA, filed a motion with U.S. District Judge Saundra Armstrong asking her to seal that part of the government’s response that details the ingredients in two compounds used in a spraying program that aims to break the moth reproductive cycle by rendering the males sexually confused. 

If granted, the court would bar disclosure of the ingredients as “claimed trade secret and confidential information,” according to the motion filed by San Francisco federal attorney Rochelle Russell and John Cruden, acting assistant Attorney General in charge of the Environmental & Natural Resources Division of the DOJ. 

Questions about the alleged dangers of both the pest and CheckMate versions OLR-F and LBAM-F, the state’s pesticides of choice, have dogged the spraying from its inception. 

Further clouding the already murky waters of fact and science is a question of political calculus raised by the $144,600 donation from Stewart and Lynda Resnick, to Arnold Schwarzenegger’s 2006 gubernatorial campaign. 

The Resnicks co-chair Roll International, a Los Angeles holding company with subsidiaries that include Paramount Agribusiness, Fiji Water and Suterra Inc., the Oregon company that manufactures the pesticides. 

Several of Volker’s clients contend they have been injured by the pesticide, which combines a synthetic version of the female insect’s sexual attractant (pheromone) in a cocktail of supposedly “inert” ingredients designed to confuse the males. 

Volker’s lawsuit charges that the inert ingredients are actually harmful to humans and wildlife, especially given the way the compound has been sprayed. Two clients, an infant and a 9-year-old girl, sustained series medical injuries as a result of the spraying, he contends. 

In addition, the suit alleges, hundreds of seabirds were killed when one of the ingredients in the spray stripped their feather of the water repellent that allowed the birds to float. 

In their filing with the San Francisco court, the federal attorneys said that even if Judge Armstrong allows the plaintiffs to see the ingredients, they will seek a protective order to bar broader disclosure to the public. 

Volker said the motion to seal the ingredients is pointless, since the state Department of Food and Agriculture revealed ingredients in one of the sprays, CheckMate LBAM-F, in an Oct. 20, 2007 press release.  

In the November lawsuit, the plaintiffs sought to bar further use of the pesticides in part because during the 2007 spraying campaign, the spray was spread by winds outside the targeted zones and onto waterways and populated areas. 

While the state contends the spray is harmless, the plaintiffs cite research they say proves that one ingredient in particular among those listed by the state causes severe lung damage.