Contact:
Joel R. Kupferman
May 17, 2000 
Cathryn Swan

 #212-766-9910

STATE SUPREME COURT JUDGE ORDERS OFFICE OF EMERGENCY MANAGEMENT (OEM) TO RELEASE DOCUMENTS RELATING TO 1999 NYC PESTICIDE SPRAYING  VICTORY FOR NEW YORK ENVIRONMENTAL LAW & JUSTICE PROJECT TO BOLSTER LAWSUIT AGAINST CITY FOR ACTIONS RELATING TO  WEST NILE VIRUS

New York, N.Y.  State Supreme Court Judge Kibbie F. Payne has handed down a decision/judgement (Index No.  124435/99) stating that the New York Office of Emergency Management (OEM) must release documents, which have heretofore been withheld, pertaining to the City’s spraying of Malathion and other pesticides during the Fall of 1999 .  This was the result of an Article 78 (of the New York Civil Practice Law and Rules) filed by the New York Environmental Law & Justice Project (NYELJP) when OEM failed to respond sufficiently to a Freedom of Information Law (FOIL) request surrounding these documents.  The Court agreed that the OEM is accountable for these documents, and has mandated that they produce them or explain why they are not available.  The requested documents include  the copy of the emergency order(or any declaration of a health emergency), the Material Safety Data Sheet (MSDS) for the pesticides including malathion, the date of purchase of the pesticides, shipping manifests and invoices, and more.

The New York Environmental Law & Justice Project originally petitioned the OEM on September 28th, 1999 in connection with its intent to sue the City of New York under the provisions of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA), claiming that such spraying of pesticides was harmful, improper and illegal.  When the NYELJP did not receive a sufficient response or an answer in a timely fashion, they petitioned under Article 78 against the City of New York on December 7th, 1999.  The NYELJP asked for 11 documents, asserting that the OEM is required by law to keep these records; the Judge agreed with this.

The 11 records requested of the OEM are:

1) Copy of emergency order

2) Communications with a) EPA (Environmental Protection Agency) b) DEC (Department of Environmental Conservation) c) N.Y. State Health Department d) Center for Disease Control with regard to order and spraying

3) The procedure for receiving and directing calls about adverse effects from spraying as well as all methods by which the public was notified of locations of spraying

4) How many calls per day received by MOEM (Mayor’s Office of Emergency Management) hotline, and what were they were pertaining to?

5) Communications with a) the New York City Health Department with regard to the order and spraying, as well as communications with b) the City Council and c) the Public Advocates office

6) Paperwork mentioning all reasonable alternatives to malathion and other decided upon chemicals.

7) List of suppliers of malathion from whom the city purchased the chemicals

8) When these supplies were purchased and how much they cost

9) The suppliers’ license to sell/use malathion

10) Any testing information on the toxicity of malathion on human and animal health

11) The registration number of each of the used and current stock of malathion that is intended to be used against the current encephalitis.

The OEM eventually responded that it could provide only two of the 11 documents: items # 2 and #10.  The Court found that the OEM, by its own admission, “coordinated the government’s response to the outbreak and directed an interagency task force consisting of officials from federal, state and city agencies.” Judge Payne declared “OEM may have knowledge of and access to documents of other agencies within City government with which it communicated” and found the NYELJP’s allegations were sufficient to create “a demonstrable factual basic” to support its assertion that other requested documents may exist and be within OEM’s control.

Judge Payne stated  that the City, through OEM, “shall determine whether any of the requested  items exist and, if they do, provide them to petitioner or indicate why they cannot be made available.”

The Judge handed down the judgment on May 8th, 2000.

(Editor's Note:  Thank goodness we live in a country where citizens can finally obtain information from their elected officials vital to their health (albeit by legal means).  Union Carbide still has not had to provide records of the pesticides and chemicals spewed over the population of Bophal, India killing 5,000 and injuring untold thousands.  This again is a comment on the power of the chemical companies.)

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