Medfly Spray Called Prop. 65 Violation

In a new attack on the state and its battle against the Mediterranean fruit fly, the city is arguing that malathion spraying violates Proposition 65, the state’s anti-toxic law.

The city attorney’s office Monday mailed documents asking the state attorney general and the Orange County district attorney to prosecute a helicopter company for allegedly violating the restrictions of Proposition 65. The company, San Joaquin Helicopter Service, was contracted by the state to conduct the sprayings.

Huntington Beach Deputy City Atty. Arthur De La Loza said the city is pursuing the helicopter company because Proposition 65 excludes state agencies from prosecution.

Proposition 65 is an initiative passed by California voters in 1986 that imposes strict notification and discharge requirements on the release of toxic chemicals. The city is saying that malathion is regulated by Proposition 65 because it contains traces of chemicals potentially harmful to humans.

However, Chief Assistant Atty. Gen. Andrea Ordin said Tuesday that the attorney general’s office has not found any sufficiently high toxins in malathion to ban it under the provisions of Proposition 65.

On March 5, the state Depart2B7ment of Food and Agriculture announced the results of three detailed tests of malathion and said that the pesticide had “negligible levels” of arsenic, beryllium, cadmium, chromium and lead--all of which are regulated by Proposition 65.

Henry Voss, director of the state Department of Food and Agriculture, stressed that the minute amounts of dangerous chemicals found in malathion were “well below the warning levels required by Proposition 65.” Voss said there are such small amounts of the dangerous chemicals in malathion “that the question arises whether the substances are impurities from the manufacturing process or whether they are some kind of contaminant from the containers.”

Officials of Huntington Beach’s city attorney’s office nonetheless believe aerial spraying of malathion falls under the law.

“The department of agriculture officials have already admitted that traces of those harmful chemicals are in malathion,” De La Loza said. “Now, under Proposition 65, we are shifting the burden of proof to them to show that health is not being threatened by the spraying of malathion.”

De La Loza said that Proposition 65 allows a city attorney to prosecute if both the attorney general and county district attorney decline to do so after being notified. “We have a 60-day waiting period, and then if they fail to act, we can bring action,” De La Loza said.

Huntington Beach’s residents and City Council have vociferously opposed malathion spraying, but previous legal attempts by the city to halt the pesticide assault have been unsuccessful.

Ordin noted that Huntington Beach’s city attorney’s office refers to the March 5 news release by the state Department of Food and Agriculture as evidence that some toxins are in malathion. But Ordin said the March 5 analysis was performed because the attorney general’s staff had pushed for such detailed testing of malathion. The test results, she said, found no toxic levels in malathion that “make it violative of the law.”

Councilman Peter M. Green, a biology professor at Golden West College in Huntington Beach, said he is displeased with the lack of action by the state attorney general’s office.

“The attorney general’s office should prosecute the department of agriculture instead of protecting it,” Green said.

Green said he considers the substances found in malathion risky to human health, despite the state’s assurances that there are no dangers.

Only the northwestern tip of Huntington Beach, near Garden Grove, has been exposed to malathion spraying in the state’s effort to eradicate the Medfly. However, De La Loza said that the area that has been sprayed contains one of the city’s reservoirs.