MONTEREY -- A Monterey County judge said Thursday he might lift a ban on aerial spraying of the light brown apple moth if the state can produce a pesticide-monitoring program and keep tabs on the health effects the spraying could have on residents.
Judge Robert A. O'Farrell, who is expected to issue a written ruling in the next few days, also said Helping Our Peninsula's Environment, a Carmel environmental group, did not successfully prove the pesticide was responsible for sickening 100 residents in Monterey County. HOPE won its Oct. 10 motion for a temporary restraining order to stop the spraying.
Before the judge lifts that order, some sort of monitoring program should be put in place, he said. The program would involve collecting residue after the pesticide is sprayed and analyzing it.
"There is a genuine fear, and that in itself can create a public health issue that should be looked at," O'Farrell said.
At issue is CheckMate OLR-F, a pesticide manufactured by Bend, Ore.-based Suterra LLC and registered by the EPA in 1997. Some Monterey Peninsula residents complained of sore throats, skin irritation, burning eyes and respiratory problems after the pesticide, which contains a pheromone that disrupts the moth's mating cycle, was sprayed there last month. Suterra has refused to detail exactly what the pesticide contains, saying it is a trade secret.
The judge grounded a trio of state-owned planes last week so more scientific information could be gathered on the pesticide, but very little evidence was presented to the court Thursday. That prompted the judge to call a four-hour recess and enlist state Deputy Attorney General William Jenkins to craft a health-monitoring plan by talking to the state Department of Food and Agriculture.
After the recess, Jenkins said the state would set up a hot line for health complaints, which would be forwarded to local county agricultural commissioners and investigated as warranted. A task force also would be created by the state to review all complaints.
HOPE attorney Alexander Henson disputed CheckMate's safety, but Jenkins dismissed the allegation: "Each time they have raised an issue, we've refuted it as not well-founded."
The judge said he thinks the state should be held at least partially responsible for making sure the pesticide is safe since it was purchasing it from Suterra.
HOPE, which filed the lawsuit on Sept. 24, claimed the state failed to conduct an environmental impact report under the pretense the moth situation warranted it. The state claims the moth, an invasive pest from Australia, presents an emergency capable of causing hundreds of millions of dollars in crop damage and putting the California ag industry in a "perpetual quarantine." The moth was first spotted in California in February. More than 6,000 have been trapped in Santa Cruz County.
Opponents of the spraying think their health should come first.
"We didn't meet the burden of proof? I think things are upside down here," said David Dilworth, HOPE executive director. "We still don't know what this pesticide is capable of causing. The judge doesn't know what the pesticide is capable of causing. The company is trying to keep everything secret, and in the meantime, we're going to come up with a monitoring plan to address health concerns after the fact?
"I think we need a legislative fix on this one," Dilworth said.
The judge's decision, whatever it ends up being, is likely to set the stage for what occurs in Santa Cruz County.
The state wants to use a similar pesticide, CheckMate LBAM-F, in early November to eradicate the moth.
Wednesday, the state added another county to the moth's range: San Luis Obispo.
Contact Tom Ragan at tragan@santacruzsentinel.com.