From: "Joel Kupferman NEW YORK LAW AND JUSTICE PROJECT"
<envjoel@ix.netcom.com>
Sent: Tuesday, April 03, 2001 11:27 AM
Subject: :"The city's West Nile virus mosquito-spraying program was put on
hold yesterday" : NEW YORK LAW AND JUSTICE PROJECT
The New York Environmental Law and Justice Project threw
the NY City Health Department for a loop yesterday. Reverberations were felt as
far away as Albany, where both the Department of Environmental Conservation and
the State DOH hastily convened a few previously unscheduled meetings. We are
including Juan Gonzalez's hard-hitting Daily News column as well as the letter
(from Joel Kupferman and Kimberly Flynn) that caused all the trouble. Enviros
were in the majority at the meeting: Kupferman and Flynn were accompanied by
Samuel Gowrie (one of the former Clarke spray workers), Brooklyn community
leader Yusuf Abdul Mumin, and Mitch Cohen of No Spray. Gonzalez and roving
reporter Roy Doremus were there from the press, and also, of
Course, representatives from Clarke and NYC DOH. Flynn handed the letter
to the Health Department's .Ira Spector as he closed the meeting, stating our
position that the city must not rehire Clarke. We then hand-delivered it to the
offices of Assistant Commissioner for Environmental Health Services Allan
Goldberg, Assistant Commissioner for Pest Control Services James Gibson (who
were the Authorized Agents for the Contracts) and Commissioner Neal Cohen. Stay
tuned for further developments.
Eye on Skeeter-Spray Bid
by JUAN GONZALEZ NY
DAILY NEWS April 3, 2001 page.
http://www.nydailynews.com/2001-04-03/News_and_Views/City_Beat/a-105855.asp
The city's West Nile virus mosquito-spraying program was
put on hold yesterday after the Health Department opened bids for a three-year
multimillion-dollar pesticide contract and only one firm submitted an offer.
That firm, Illinois-based Clarke Environmental Mosquito
Management Inc., has been under investigation by the state Department of
Environmental Conservation and the U.S. Labor Department for the way it handled
its $4.6 million city contract for massive spraying of the pesticide Anvil last
summer.
This column reported in January that at least six former
Clarke workers say they've been plagued by a variety of ailments as a result of
exposure to Anvil, including chronic fatigue, sexual dysfunction, breathing
difficulty and hair loss. The men charge that the company didn't provide
adequate safety equipment or training.
After investigating their claims, the federal Occupational
Safety and Health Administration cited the firm for five serious safety
violations and fined it $6,750.
"The issues raised by OSHA are of a minor
nature," said company spokeswoman Julie Ugarte. Clarke agreed to a
settlement with the agency only to "avoid the cost of litigation," she
said, and it is "cooperating fully" with the state investigation.
The state probe has not concluded, but investigators have
recommended a far larger fine against the company for violating state
environmental laws, according to one source.
Environmental Conservation spokesman Peter Constantakes
would not say how close his agency is to wrapping up its probe.
"There are meetings about this going on right
now," Constantakes said yesterday.
Meanwhile, city Health Department officials refused to
declare Clarke the winner of two new three-year spraying contracts yesterday,
even though the company was the only contender, entering a total bid worth about
$277 million.
"We're reviewing the situation with this bidder,"
said Health Department spokeswoman Sandra Mullin. "Everything is under
review right now. That's all I can tell you."
The bid opening, held in a tiny, cramped office at the
Health Department headquarters by staff analyst Ira Spector, was a strange
event, to put it mildly.
The only people in the room were Spector, two other city
employees serving as witnesses, a group of lawyers and activists from the
Environmental Law and Justice Project, and this reporter.
It didn't take long to open the one bid.
A local pesticide executive who decided not to participate
told me later his company took a pass because the city requires a
high-performance bond that only the biggest companies - like Clarke - can
afford. And, he said, Clarke, as the sole manufacturer of Anvil, controls the
supply.
Spector reported that on one contract Clarke had bid $264.2
million, and on the other $13.4 million, and that it was the sole bidder for
each.
If that sounds like an astronomical price for killing
mosquitoes, it is.
The actual money spent will turn out to be far less, but
the city required all firms to provide bids for several insecticides to kill
larvae and adult insects and for a variety of application methods - including
fixed-wing aircraft for aerial spraying - any of which the Health Department
could choose.
"The actual dollars spent will end up being about 20%
of that," the pesticide executive said.
But only 20% of the bid price still would mean in excess of
$50 million over three years - far more than the city spent on spraying last
year.
"Anyway you look, it's high," said another
pesticide executive whose out-of-town firm participated in prebid meetings but
ended up not competing. "Part of it is the potential for litigation in New
York City is extremely high."
One of those litigators is Joel Kupferman. He filed the
original complaints with OSHA and the Department of Environmental Conservation
on behalf of the former Clarke employees. Kupferman called on Health
Commissioner Neal Cohen yesterday to reject Clarke's bid until it has been
cleared of any "malfeasance" involving last year's contract.
LETTER TO Commissioner Neal Cohen
NEW YORK ENVIRONMENTAL LAW & JUSTICE PROJECT
member of The Clean Water Network
Joel R Kupferman, Esq. Exec. Dir.
Kimberly Flynn, Policy Analyst
Grace S. Jean, Legal Intern
Daniel Skinner, Media Director
315 Broadway Suite 200 New York NY 10007-1121
212-766-9910 fax: 646-349-2622
envjoel@ix.netcom GOTOBUTTON BM_1_ .com
April 2, 2001
Dr. Neal Cohen
Commissioner
New York City Department of Health
125 Worth Street
New York, N.Y. 10013
Dear Commissioner Cohen:
In light of the fact that Clarke Environmental Mosquito
Management, Inc. has recently been cited by OSHA and is currently under state
investigation for violating federal and state law in its handling of New York
City's West Nile Campaign last year, we call on you to refuse to grant Clarke
the Mosquito Control and Quality Assurance contracts which are now pending.
The New York Environmental Law and Justice Project
represents eight former employees of Clarke Environmental Mosquito Management in
Workers' Compensation proceedings. These men, all Brooklyn and Bronx residents,
applied larvicides and pesticides in the Health Department's West Nile Campaign
of 2000. They have come forward to us to reveal that Clarke endangered their
health in violation of occupational safety regulations. In addition, they have
described in detail practices by Clarke which clearly resulted in imminent and
substantial endangerment to the health of city residents and the environment in
violation of federal and state environmental laws, and provisions of their 2000
contract with the city.
Specifically, these workers reported that Clarke failed to
train and supervise them properly to handle hazardous pesticides, and failed to
provide them with adequate protective gear. As a result of their onthejob
exposures, they have been poisoned, a fact that has been documented in the cases
of the five men who have been evaluated thus far by Mt. Sinai Occupational and
Environmental Clinic doctors. (Documentation will be made available upon
request.)
The workers' charges have triggered several investigations.
On March 8, the Occupational Safety and Health Administration concluded its
investigation, citing Clarke for "serious violations" of federal laws
which protect workers, and levying penalties.
We are now awaiting an announcement by the New York State
Department of Environmental Conservation of its findings. This investigation,
delegated to the state by the Environmental Protection Agency, Region 2, was
initiated three months ago when our office filed a complaint under Section 27 of
the Federal Insecticide Fungicide Rodenticide Act (FIFRA). In addition, on
January 25, US Congressman Jose E. Serrano issued a statement calling for
increased federal scrutiny of Clarke, including inquiries by US EPA and the
Justice Department.
Last year, despite your safety claims about the pesticides
and repeated assurances to the public about your department's watchful
supervision, an illegal pesticide operation was unleashed on city streets. Many
city residents complained of serious adverse reactions, frequently from being
sprayed directly, in clear violation of the pesticide label. That this type of
exposure was a regular occurrence was well documented in the video tape of last
summer's spraying in Harlem, which the No Spray Coalition presented in federal
court, as they sought a preliminary injunction against broadcast spraying last
September. City residents commonly reported that spray trucks arrived ahead of
schedule, and that the police escorts, contrary to the city's assertions, made
no announcements to warn people off the streets.
The New York State Attorney General's Office has reminded
the Giuliani administration that pesticides are poisons and that no pesticide
can be described as safe. How much greater are the dangers both to workers and
to the public when pesticides are massively sprayed in densely populated urban
areas--and by a company such as Clarke, which in flagrant disregard for the law,
has caused its own workers to be poisoned, sending them out to work untrained, unprotected, uninformed
of the hazards and largely unsupervised.
On the evidence already in the public record, it is plain
that Clarke categorically does not meet the criterion of being "a
responsive and responsible bidder," in the language of the city's contract.
To reward Clarke's negligence with yet another contract would, we believe, put
the health and safety of the people of New York at undeniable risk.
Yours truly,
Joel Kupferman, Esq.
Kimberly Flynn
cc: Mayor Rudolph Giuliani; Members of the City
Council; New York City Comptroller Hevesi;
New York City Public Advocate Green; Manhattan Borough President Fields; Bronx
Borough President Ferrer; New York City Department of Investigation; New York
City Office of Emergency Management; New York State Department of Environmental
Conservation; Assemblymembers Brodsky, Diaz, Gottfreid, Rivera; State Senators
Padavan, Patterson, Stringer: New York State Attorney General Spitzer:
Occupational Safety and Health Adminstration (OSHA) Regional Office;
Environmental Protection Agency, Region 2; US Attorney's Office, Southern
District of New York; US Congressmen Ackerman, Nadler, Rangel, Serrano; US
Senators Clinton, Schumer, No Spray Coalition, National Coalition Against the
Misuse of Pesticides (NCAMP), Disabled in Action, Save Organic Standards, The
Pace Environmental Litigation Clinic, The Sheppard Foundation, the B'nai Jesurun
Committee on the Environment, the New York Committee for Occupational Safety and
Health (NYCOSH), District Council 37, Citizen's Campaign for the Environment,
National Audubon Society, New York City Audubon Society, Clean Water Network,
New York City Green Party, New York Coalition for Alternatives to Pesticides (NYCAP),
Riverkeepers Association, Long Island Breast Cancer Coalition, South Bronx Clean
Air Coalition, West Harlem Environmental Action, Seeking Alternatives for the
Environment (SAFE)--NYC, Westchester, Connecticut Chapters: Friends of the
Earth, Environmental Advocates, New York Public Interest Research Group (NYPIRG),
The Sierra Club, PortCap, ASAP, Columbia Center for Children's Environmental
Health, Mothers and Others, United for Wildlife, The Consumers' Research
Institute, the Professional Staff Congress of the City University of New York