City-State Malathion Feud Heads for Court

A battle between the city of Los Angeles and state agricultural officials over malathion spraying escalated Friday as the state representatives announced plans to spray the downtown area for Mediterranean fruit flies next week and city officials vowed to sue to stop the pesticide application.

The opposing positions emerged after a daylong negotiating session intended to calm what has developed into the most serious challenge yet to the state’s right to battle the stubborn Medfly infestation by whatever means necessary.

“The city of Los Angeles means business, and we’re not going to jeopardize the health of the people,” said Councilman Joel Wachs, who has been leading the attack on the state’s spraying program. “We believe this is of critical importance.”

The dispute was sparked by the city’s claim that it has scientific proof that the malathion used in the spraying campaign contains impurities that could pose a serious health threat. Wachs said independent tests of malathion samples showed quantities of lead, nickel and chromium that violate Proposition 65, a state initiative passed in 1986 that imposes restrictions on hazardous substances.

State officials were stunned by the city’s interpretation of the findings. The test results, they said, are nearly identical to their own sampling of malathion, and state scientists have reached an opposite conclusion about what the results show.

“The numbers our lab got are very low, in fact, lower than that in plain old soil,” said James W. Stratton, a medical epidemiologist in charge of the state Department of Health Services’ review of malathion. “There’s nothing serious as far as we can tell.”

The differing scientific interpretation might be resolved only in court.

Wachs said the city intends to seek a court order Monday to stop aerial spraying until the state can prove that its mixture of malathion and a syrupy fly bait does not violate Proposition 65.

Because all government agencies and private firms with less than 10 employees are exempted from Proposition 65, Wachs said the city instead will sue the private helicopter company that has been hired to do the spraying. State officials have long maintained that the helicopter company also is exempt because it is working under contract to the state.

Wachs said that even if the suit fails to stop the spraying, it will at least force the state to appear in court and defend its use of malathion again in an open forum.

“People want to know that everything has been studied, and the state hasn’t done that,” Wachs said. “That’s been the issue all along. How can you have the nerve to assure somebody if you haven’t done the analysis?”

Roger Lane Carrick, an attorney representing the city, said a formal complaint also will be filed with the state attorney general’s office concerning a state Department of Health Services inspector who allegedly demanded the malathion test results earlier this week from the laboratory that conducted the city’s tests.

“It was an extraordinary breach of legal ethics,” Carrick said. “It shocks the conscience.”

State officials were not available for comment on the complaint.

Wachs also called Friday for an independent health risk analysis of the malathion spraying.

State Food and Agriculture Director Henry J. Voss said that, despite the city’s claims, he remains confident that the malathion spraying is safe.

Voss announced late Friday afternoon, even as lawyers for the city and state were trying to resolve their differences, that the spraying would start again next Thursday over 14 square miles encompassing downtown and several surrounding neighborhoods.

Voss had postponed the scheduled spraying until state laboratories had a chance to run new tests on malathion samples.

“The Department of Health Services has completed its latest test and, like all previous tests, has determined that our malathion spraying program poses no public health risk,” Voss said.

“The findings we got are not significantly different from other analyses. The consistency is there,” he said. “We feel comfortable going ahead with spraying.”

The gaping difference in how the city and state view the pesticide’s safety lies in their interpretation of the test results. Both sides agree the raw data from their tests are virtually the same.

The samples of malathion and fly bait used by the city and the state were taken at the same time and from the same source.

The malathion testing stemmed from a city lawsuit filed in February against the state to stop the aerial spraying. Samples were taken May 31, but the city’s results were not available until this week. Voss ordered the spraying postponed after Wachs’ release earlier this week of the city’s test results.

The city has taken the basic numbers showing the amount of lead, chromium and nickel in the malathion mixture and used them to conduct an analysis of the potential exposure and danger.

To determine the threshold of danger, the city took as its subject a hypothetical homeless child who eats all the malathion sprayed in a 100-square-foot area.

Using those assumptions, Wachs said the child could be exposed to concentrations of nickel, lead and chromium exceeding levels allowed under Proposition 65.

State officials counter that the city’s scenario exceeds even the worst case possibility.

Stratton, the state scientist in charge of reviewing malathion research, said it is unlikely that anyone would end up eating even a tiny amount of the bait mixture. The amount inhaled or absorbed through the skin would be even less, he said.

“They are reaching to find some scenario that squeaks into a Proposition 65 violation,” he said.

Stratton called the city’s interpretation of the test results distorted, unrealistic and deceptive.

“They’re running this like a carnival, ‘Hey! look at our numbers!’ ,” he said.

Interpreting the test results is further complicated by the lack of detailed information on what type of lead, nickel and chromium were found in the malathion mixture.

Steven A. Book, chief of the health hazard assessment division of the Department of Health Services and the scientist in charge of overseeing Proposition 65, said the law is specific in describing controlled substances.

The proposition, which regulates more than 450 chemicals, typically names the form of the chemical that is considered hazardous.

For example, only a kind of chromium called hexavalent chromium is regulated by the proposition. Similarly, only nickel carbonyl, subsulfide and refinery dust fall under the restrictions of the measure. Book said that some forms of chromium, for example, are considered safe and are actually found in vitamin pills. He said that even if restricted materials are found, determining what concentrations are dangerous is a complex process.

The proposition requires that exposure to carcinogenic substances must be kept below a level at which there is “no significant risk.” Regulators generally take the phrase to mean that exposure would cause less than one cancer in 100,000 people.

Levels of birth-defect-causing materials must be 1,000 times less than the point where there is an “observable effect” from the substance.

But what exactly is the point of “no significant risk” or “no observable effect” in the case of malathion spraying?

Wachs said he believes the city’s scenario of a homeless child is a reasonable attempt to establish a danger point.

John Emerson, chief deputy city attorney handling the city’s lawsuit against the state challenging the safety of malathion, said that the burden of proving the pesticide’s safety now lies with the state and its helicopter contractor.

“It’s a burden-shifting question,” he said. “We’re asking the judge, ‘Has enough evidence been presented that the burden has shifted?’ ”

Emerson said the city is hoping that a judge on Monday will agree with its position and order a halt to the spraying until the issue is resolved.

Voss already has stated that if there is proof that malathion is dangerous, “We would stop. You just couldn’t do otherwise.”

But he added that he believes that no such conclusive evidence has been presented.

State scientists have said that a week’s delay in spraying should not allow the Medfly infestation to worsen in the downtown treatment area.

MALATHION METALS

Here are some of the biological effects of the three toxic metals that have been identified in malathion bait.

Lead: Causes headaches, dizziness, insomnia and, in higher doses, stupor and coma. Nervous system damage, particularly in children.

Nickel: Skin irritant. Causes headaches, dizziness, nausea and chest pain. Can cause hemorrhage and collapse of the lungs. Causes cancer, particularly lung cancer.

Chromium: Skin irritant. Possibly causes cancer.

Note: Both nickel and chromium are considered essential nutritional elements and are required in small quantities in the diet.