Attorney: Pesticides at WCMS violates federal law

LIHUE — Atrazine, chlorpyrifos and bifenthrin somehow made it inside Waimea Canyon Middle School. And according to an attorney, federal regulations forbids it from ending up there.

“Because the health risks are often unknown and evolving, this is one reason why pesticide labels expressly prohibit drift,” said Kyle Smith, one of the two attorneys representing the Westside community in a lawsuit against Pioneer Hi-Bred International.

In less than three years, the three restricted-use pesticides have been detected in water or ambient air samples collected at the school, nestled among a checkerboard of agricultural lands farmed by bio-tech seed companies on Kauai’s Westside.

Thomas Matsuda of the state Department of Agriculture’s Pesticide Branch points out that all three pesticides were detected at concentrations below screening levels developed by the federal Environmental Protection Agency or the California Department of Pesticide Regulation.

But one question remains unanswered, according to Smith: Where did the chemicals originate from?

If the pesticides drifted from nearby agricultural fields, which Smith believes is the most logical explanation, he said it is “a violation of the label, which is a violation of federal and state law — regardless of the level.”

In many cases, there is not an established safe level, or the levels are disputed, Smith said.

Atrazine, manufactured by Syngenta, is one of the world’s most widely used and controversial herbicides. Banned in Europe since 2004 due to groundwater contamination risks, studies have suggested atrazine is associated with a number of health problems, including cancer, birth defects and reproductive issues.

While the county Department of Water said it has not detected the chemical in Kauai’s drinking water since 2005, water samples collected in February 2011 by the U.S. Department of Agriculture from drinking fountains at Waimea Canyon School detected levels of 6 parts per trillion — which is 500 times lower than the EPA’s standard for maximum contamination level of 3,000 parts per trillion.

The other two restricted-use pesticides — chlorpyrifos and bifenthrin — were among the five pesticides found during a Waimea air quality study finalized in March (two years behind schedule), and funded in part by the Kauai County Council.

While chlorpyrifos was detected at levels 24 times below the California subchronic screening level, the study — led by Qing Li of the University of Hawaii — did not outline a screening level for bifenthrin.

When it comes to ambient air sampling, Matsuda said, “everyone kind of defers to this California study, because it’s so extensive.”

The four-year study in Waimea was part of an investigation into what caused children and teachers at the school to get sick on several occasions between 2006 and 2008. One incident resulted in at least 10 children being taken to the hospital.

Some of the council members were frustrated because they believed they had funded a study that would include findings on acute risks. But the study only addressed long-term exposure.  

In particular, Smith said the fact that chlorpyrifos (the active ingredient in the agricultural insecticide Lorsban) was found is “extremely frightening,” because the EPA expressly restricted the chemical in 2000 to avoid exposure to children in places such as schools.  

In addition to restricted-use pesticides chlorpyrifos and bifenthrin, the study at the Waimea Canyon School detected metolachlor, a general use pesticide. The study found none of those chemicals at Hanalei Elementary School, a location used as a control site.

Smith said this suggests it is the result is agricultural drift, as he knows of no other confirmed uses of these chemicals other than the GMO fields in the area. For this reason, he believes it is important for state and local government to investigate.

Inside Lorsban Advanced’s 17-page label, under the “Directions for Use” section, it states it is a violation of federal law to use the product in a manner inconsistent with its labeling.

“Do not apply this product in a way that will contact workers or other persons, either directly or through drift,” states the label. “Only protected handlers may be in the area during application.”

Matsuda said drift can only occur “at the time of application or soon thereafter,” and that the levels of chlorpyrifos and bifenthrin detected during the Waimea study were likely the result of volatilization, or evaporation.

However, because the ambient air samples were out for months at a time, Matsuda said “it’s tough to say” exactly how or when the chemicals got there.

Smith said making a distinction between direct spray drift and volatilization is ridiculous when the labels do not make this distinction.

“There is no good explanation for how these chemicals got into Waimea Canyon Middle School except through drift,” he said. “The question is where this drift originated from.”

Barbara Brooks, a state Department of Health toxicologist, said it is not unusual for trace amounts of such chemicals to be found in air samples in areas where they are used.

“It’s a volatile chemical,” she said of chlorpyrifos. “So it could be coming off the soil once it’s applied.”

Brooks added that the level of chlorpyrifos found in Waimea is typical of the amounts found in other agricultural areas.

“It was very low,” she said.

Still, Smith believes it is something that should be investigated.

“(Matsuda’s) making the assumption that these chemicals were sprayed correctly, which he does not know, and then volatized,” he said. “Why not take the next step? We know it’s in the school and it shouldn’t be there.”

In June of 2000, the EPA completed a revised risk assessment for chlorpyrifos, eliminating certain uses of the organophosphate, including nearly all home use products.

“In meeting the tough safety standard, EPA believes it can do a better job of protecting children and others by further reducing exposure to chlorpyrifos, and providing the increased margins of safety now mandated by federal law,” the assessment reads.

“Chlorpyrifos use in schools, parks and other setting where children may be exposed will be canceled,” it said.

In its January 2001 notice to retailers, the EPA determined that “chlorpyrifos, as currently used, does not provide an adequate margin of protection for children that are exposed to the chemical. This action adds a greater measure of protection for children by reducing and eliminating the most important sources of exposure.”

In an April email, Matsuda wrote that the stop sale was brought about because when EPA conducted a review of chlorpyrifos, as established by the 1996 Food Quality Protection Act.

“They (EPA) wanted to limit the exposure by children to chlorpyrifos in the home setting and other non-residential settings, like school and park grounds,” he wrote.

Matsuda said the levels found in Waimea school are below the level of concern, and do not warrant an investigation.

“The dose makes the poison … Health concern levels are established by EPA to take into account the amount of the pesticide an individual is exposed to, how long the exposure is and route of entry,” he wrote.

According to documents obtained by Councilman Gary Hooser, each of the four major seed companies on Kauai — Syngenta, Pioneer, Agrigenetics, Inc. (a subsidiary of Dow AgroSciences) and BASF — purchased atrazine and chlorpyrifos in 2010, 2011 and 2012.

• Chris D’Angelo, environment writer, can be reached at 245-0441 or


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