Asociación Interamericana para la Defensa del Ambiente - PDF

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Asociación Interamericana para la Defensa del Ambiente Interamerican Association for Environmental Defense Associaςão Interamericana para a Defesa do Meio Ambiente Association Interaméricaine pour la Defense

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Asociación Interamericana para la Defensa del Ambiente Interamerican Association for Environmental Defense Associaςão Interamericana para a Defesa do Meio Ambiente Association Interaméricaine pour la Defense de l Environnement Earthjustice th Street, 6th Floor Oakland, CA United States Other Participating Organizations: Centro de Derecho Ambiental y de los Recursos Naturales Costa Rica Centro de Derechos Humanos y Medio Ambiente Argentina Centro Mexicano de Derecho Ambiental México Fiscalía del Medio Ambiente Chile Fundepúblico Colombia Justicia para la Naturaleza Costa Rica Sierra Legal Defence Fund Canada Sociedad Peruana de Derecho Ambiental Perú MEMORANDUM TO: FROM: Honorable Members of Congress Anna Cederstav Staff Scientist, Earthjustice and AIDA DATE: September 23, 2002 SUBJECT: Department of State report to Congress regarding aerial coca eradication in Colombia According to the chemical procurement provision of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, (Public Law No , 115 Stat (2002), Title II) funds appropriated by this Act that are used for the procurement of chemicals for aerial coca fumigation programs may be made available for such programs only if the Secretary of State, after consultation with the Administrator of the Environmental Protection Agency, the Secretary of the Department of Agriculture, and, if appropriate, the Director of the Centers for Disease Control and Prevention, determines and reports to the Committees on Appropriations that: (1) aerial coca fumigation is being carried out in accordance with regulatory controls required by the Environmental Protection Agency as labeled for use in the United States, and after consultation with the Colombian Government to ensure that the fumigation is in accordance with Colombian laws; (2) the chemicals used in the aerial fumigation of coca, in the manner in which they are being applied, do not pose unreasonable risks or adverse effects to humans or the environment In an attempt to comply with the requirements of this law, and after consultation with the Environmental Protection Agency (EPA) and Department of Agriculture (USDA) but not with the Centers for Disease Control and Prevention, the Department of State (DoS) recently submitted to Congress a Report on Issues Related to the Aerial Eradication of Illicit Coca in Colombia. This memo comments on the DoS report to Congress and outlines the main reasons for our conclusion that the DoS has failed to meet the conditions established by the chemical procurement provision. Rather than resolving doubts concerning the use of a broad-spectrum herbicide for the purposes of coca eradication in Colombia, the report, and particularly the EPA consultation document, underscores the risks posed to human health and the environment. Further, the report makes clear that there is not sufficient information available about environmental and human health impacts and measures implemented to mitigate such impacts. In light of the potentially serious environmental and public health risks associated with the aerial eradication program, and because of the DoS failure to demonstrate that the above conditions are being met, we strongly recommend that the Committee on Appropriations withhold funding for the chemical eradication program. I. Requirement to determine and report that the spraying program is being carried out in accordance with regulatory controls required by the Environmental Protection Agency as labeled for use in the United States. We conclude that the DoS fails to demonstrate compliance with this requirement as discussed below. The formulated herbicide product used in Colombia is not used in the United States It is important to note that in spite of a recent official registration in the United States that may seem to lend some credibility to the DoS decision to use this substance in Colombia, this product has never been marketed in the United States. 1 Because the producer decided that they did not want to market a Glyphosate product with a Danger signal word, the product was labeled Not for use in the United States. In November of 2001, seeking to register a Glyphosate product that corresponds to the product being used in Colombia, the product was re-registered to permit use in the United States. 2 However, the producer has no intention of marketing the product in the United States. 3 Failure to demonstrate that the use in Colombia complies with EPA label instructions DoS states that Tab 1 of the report illustrates that the Glyphosate formulation used to spray coca in Colombia is used in accordance with the EPA label instructions. However, the EPA consultation report to DoS does not justify this claim. The fact that EPA confirms that application rates are within the parameters listed on US Glyphosate labels cannot be interpreted to mean that all label requirements are met. A closer analysis of the EPA consultation report shows that there are in fact many reasons why the use in Colombia specifically does not comply with the label conditions in the United States. 1. Failure to demonstrate that use in Colombia constitutes non-agricultural use 1 Response from EPA Assistant Administrator Johnson to Secretary of State, August 19, 2002, p Response from EPA Assistant Administrator Johnson to Secretary of State, August 19, 2002, p Personal conversation with Monsanto representatives. 2 The DoS reports that the glyphosate formulation used to spray coca in Colombia is used in accordance with the EPA label instructions for non-agricultural use. 4 It is true that the use rates in Colombia are in accordance with the label for non-agricultural use in the United States. However, the State Department fails to demonstrate that the use in Colombia is in fact appropriately categorized as non-agricultural use. This is not an assumption that can be made without considering the actual conditions of use and exposure in Colombia. The DoS provides no data that supports an assertion that the use in Colombia constitutes non-agricultural use, and EPA at no point certifies that the use for coca-eradication in Colombia would be appropriately classified as such. We hold that the Glyphosate use in the Colombian anti-narcotics program is not appropriately classified as non-agricultural use. According to the EPA, the intended US uses are for undesired vegetation in and around crop fields, forests, industrial areas, and residential areas. 5 The label for the product that has been used to date states This product is for use on plants in non-crop and non-timber areas only. Not for use on crops, timber, or other plants being grown for sale or other commercial use. 6 These conditions of non-agricultural use do not hold in Colombia, a fact that has substantial implications for human exposure. It is well known that Colombian farmers intersperse food and coca crops, and plant coca in fields adjacent to food crops. Thus, food crops are frequently sprayed along with coca crops. The State Department appears to defend this practice by reporting that according to Colombian law, food crops that are interspersed with coca are subject to spraying. 7 While this practice may be legal in Colombia, the spraying of food crops or crop areas is certainly not consistent with US non-agricultural use of herbicides, as per US EPA regulatory requirements. The Colombian Public Defender has received a great number of complaints of food crops that have been sprayed as part of the Colombian coca eradication program. While EPA assumed that food crops that have been sprayed will be allowed to go to waste, economic conditions in Colombia make it far more likely that subsistence farmers with little or no knowledge of the risks associated with contacting recently sprayed crops will harvest and eat these crops, if at all possible. The exposure resulting from such harvesting and consumption could be significant. Non-agricultural use scenarios in the United States are also ones where there is no immediate worker re-entry into fields that have been sprayed, because in the US, most uses of Glyphosate are applied to kill weeds which are the target. With only undesirable plants being sprayed, US non-agricultural use consists of applications of concentrated solutions of herbicide where there is little or no worker contact with the sprayed plants. By contrast, in Colombia, where coca bushes grow to approximately chest level and are harvested mainly by leaf pulling 4 to 5 4 Memorandum of Justification Concerning Determination on Health, Environmental, and Legal Aspects of Coca Eradication in Colombia 5 Response from EPA Assistant Administrator Johnson to Secretary of State, August 19, 2002, p Label for Pesticide with Registration number , confirmed by the EPA as the pesticide in use for the aerial eradication program. 7 Chemicals Used for the Aerial Eradication of Illicit Coca in Colombia and Conditions of Application, US DoS, September 2002, p. 5. 3 times per year, representatives from DoS have indicated that growers will prune the coca plants, immediately after spraying, in order to salvage the coca crop. Specifically workers may enter fields immediately after spraying in order to prune or pull off the coca leaves in order to prevent the coca plant from dying. 8 In light of this worker exposure scenario, the spraying program is not appropriately classified as non-agricultural use, and should not be permitted to occur using the high concentrates and herbicide application rates characteristic of such use. Rather, the spraying should be conducted following limitations set for agricultural use. 2. Failure to comply with conditions for agricultural use The herbicide that DoS has used to date is not permitted for use in the United Stated under any conditions in agricultural applications. Thus, no direct comparison is possible. However, considering related but less toxic products, it is clear that the spraying program in Colombia uses much greater total quantities and higher concentrations of herbicide than permitted for agricultural use in the United States. EPA notes that use in US agricultural sites average less than 0.75 pounds of the active ingredient Glyphosate per acre 9 as compared to the approximately 3.3 lbs per acre that is being applied in Colombia. Similarly, US EPA agricultural use labels for significantly less toxic formulations permit the use of a maximum of 29.4% solutions, 10 while in Colombia a 44% solution of the more toxic formulation is applied. 3. Failure to comply with methods of application that would be mandated in the US Even if the use of Glyphosate in the Colombian coca-eradication program were appropriately classified as non-agricultural use, EPA notes that the methods of use in Colombia are not similar to those that would be expected for forestry use in the US. The EPA states it is not clear how closely this use approximates that for coca eradication. Glyphosate is typically applied to forestry sites using helicopters at air speeds of knots. Application to forestry sites by fixed wing aircraft, if practiced at all, is extremely rare; 11 and Most U.S. labels for forestry and right-of-way use of glyphosate suggest application by helicopter. Since application in Colombia is done by fixed-wing aircraft, it is likely conducted at a higher speed and from a greater altitude than would be typical in the U.S. As a point of comparison, the DoS states that application is usually carried out from an altitude of less than 100 ft 12 while US labels suggest application from less than 10 ft. 13 This difference in application altitude gives rise to a much greater risk of drift and thereby potential contact with non-target species and populations. The EPA also states For products registered for use in the United States which have high acute toxicity to the eye, mitigation of exposure to potential eye effects for post-application workers is done by lengthening restricted entry intervals (REI). 14 Clearly, such REIs would apply if this 8 Response from EPA Assistant Administrator Johnson to Secretary of State, August 19, 2002, p Response from EPA Assistant Administrator Johnson to Secretary of State, August 19, 2002, p EPA label for Roundup Ultra, a product related to but significantly less toxic than the one used in Colombia. 11 Response from EPA Assistant Administrator Johnson to Secretary of State, August 19, 2002, p Chemicals Used for the Aerial Eradication of Illicit Coca in Colombia and Conditions of Application, US DoS, September 2002, p EPA label for Roundup Ultra, a product related to but significantly less toxic than the one used in Colombia. 14 Response from EPA Assistant Administrator Johnson to Secretary of State, August 19, 2002, p product were used in the United States. It is unlikely that the DoS can guarantee that REIs are enforced in Colombia. In summary, because the DoS fails to demonstrate that in Colombia the type of use (agricultural vs. non-agricultural or non-crop), the methods of application (type of aircraft used, application heights) and precautions to protect the local population (restricted entry intervals) are consistent with US label requirements for this and related products, the DoS has not justified the statement that aerial eradication is being carried out in accordance with regulatory controls required by the Environmental Protection Agency as labeled for use in the United States. II. Requirement to determine and report that the coca spraying is in accordance with Colombian laws. We conclude that the DoS fails to demonstrate compliance with this requirement as discussed below. In an effort to comply with the above requirement, the DoS supplied Congress a brief letter from the Ministry of Foreign Affairs. With the exception of stating that an environmental management plan (EMP) is being implemented, the letter contains no substantiating data or background information regarding the laws that apply to the program, or how these are enforced. Rather, Congress is asked to accept the word of the Colombian Ministry of Foreign Affairs that no laws are being violated in the implementation of the spraying program. This is unacceptable considering that other Colombian Government authorities such as the Public Defender s Office have expressed strong concern that the aerial eradication program violates numerous Colombian laws. 15 The promise that an EMP is now being implemented, in no way proves compliance with Colombian laws. Quite to the contrary, the Colombian EMP is an exemplary case illustrating how the aerial coca eradication program has continually violated Colombian laws designed to protect citizens and the environment. The EMP for the spraying program was approved by the Ministry of Environment only as recently as November 26, 2001 (Resolution 1065). Until that date, the EMP could not be approved because of the failure of the Colombian Narcotics Agency (DNE) and DoS to provide sufficient information about the program and to design adequate mitigation measures. Even though there is a strict Colombian legal requirement that an EMP must be authorized and implemented prior to the realization of any aerial eradication activities, the DNE and DoS carried out aerial eradication activities for five years prior to the eventual EMP approval. Thus, the program was until very recently carried out in flagrant violation of Colombian environmental laws. Moreover, it is not clear whether the Colombian EMP that is now in force is in fact being implemented appropriately. As recently as December 2001, DNE argued before the Colombian 15 Amicus Curiae, Posición de la Defensoria del Pueblo, La Ejecución de la estrategia de erradicación aérea de los cultivos ilicitos, con químicos, desde una perspectiva constitucional. (Amicus Brief - Position of the Colombian Ombudsman Office on the Eradication of Illicit Crops through Aerial Application of Chemicals), Ministry of Environment that DNE did not have the authority or capacity to implement said plan. Given this recent uncertainty as to how the EMP would be enforced, further evidence of EMP implementation should be provided by DoS. The DoS should provide Congress and the EPA with a minimum of: a detailed summary of the requirements of the plan and a thorough description of how these are being met; copies of the policies adopted and materials developed in compliance with the plan; and third-party auditing verifying implementation of the plan. In addition, DoS should respond to the concerns raised by the Colombian Public Defender and Comptroller s Offices with respect to alleged non-compliance with Colombian laws. 16 These concerns include claims that the eradication program violates: 1. The Constitutional rights to life, health, a healthy environment, and public participation. 2. Law 30 of 1986, article 91 (Anti-drug Act) requiring authorization from the environmental and health authorities prior to the implementation of eradication activities. 3. Law 21 of 1991, ratifying ILO Convention 169 regarding the right to prior consultation of indigenous communities. 4. Law 99 of 1993, and Decree 1753 of 1994, (recently replaced by Decree 1728 of 2002), requiring Environmental Licenses or the implementation of an Environmental Management Plan for activities that can harm the environment. 5. Decree 1843 of 1991, regarding the use and management of pesticides. (Based on the fact that the concentration authorized for use by the agricultural authority (ICA) is different from the one applied. Also with regard to requirements regarding flights, distance, management, disposal of hazardous wastes, etc.) 6. Law 472 of 1998, protecting the collective right to a healthy environment, the right to conserve the equilibrium of ecosystems, and public health. The DoS should also address concerns that the DNE and DoS, in implementing the eradication program, have failed to consider input from other Colombian government authorities including: 1. The requirement for a Plan of Epidemiological Oversight, proposed since 1982 and ordered in 1992; 2. Recommendations from the National Pesticide Council; and 3. A recommendation for technical audits that guarantee independence, transparency, and participation of the affected population. III. The requirement that the DoS determine and report that the chemicals used in the coca spraying, in the manner in which they are applied, do not pose unreasonable risks or adverse effects to humans or the environment. We conclude that the DoS fails to demonstrate compliance with this requirement for the reasons discussed below. 16 Defensoria Statements dated February 9, 2001 and April 16, 2001; Defensorial Resolution February 12, Failure to appropriately consider the toxicity of the formulated product used in Colombia With regard to human health, the EPA notes, the surfactant used in the formulated product reportedly can cause severe skin irritation and be corrosive to the eyes, as would be expected for many surfactants. The label for the formulated product used in the coca eradication program in Colombia includes the Danger signal word. These findings suggest that any of the reports of toxicity to the eye may be due to the surfactant, not Glyphosate per se. The product has been determined to be toxicity category 1 for eye irritation, causing irreversible eye damage. 17 From EPA s statement, it is clear that it is the particular formulated product used in Colombia, and not the active pesticide ingredient (glyphosate), that is of concern. Because the studies that the DoS presents were not conducted using this specific formulation and also do not consider the high concentrations at which this substance is used, the numerous studies focusing on glyphosate or other glyphosate-containing products do not address the specific issue of concern in Colombia. The EPA presents data regarding historic illnesses involving the eye due to formulated glyphosate product use in the United States
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