Photo courtesy Lory Marques. Plaintiff Max Coleman required surgery to correct an improperly formed tube connecting his kidney to his bladder. The lawsuit claims pesticide drift from neighboring Monsanto fields led to in utero exposure to pesticides, causing the birth defect.

An attorney representing two Maui families in a lawsuit against Monsanto responded Tuesday to the company’s recent admission of illegally using, transporting, and storing the banned pesticide methyl parathion, also known as Penncap-M, at locations in Maui County in 2014.

“Monsanto’s illegal conduct in spraying a banned pesticide at its Kihei facility in 2014 clearly illustrates its criminal disregard for the health and safety of its workers and surrounding communities on Maui and Moloka‘i,” said Ilana Waxman, a partner at the firm Galiher DeRobertis & Waxman, which is representing the families. “We call on Monsanto to stop its reckless use and storage of toxic pesticides in the vicinity of people’s homes and schools and to provide full public disclosure about its historical use of pesticides in our islands.”

On Nov. 21, the biotechnology-agrochemical giant, a subsidiary of Bayer, agreed to pay $10.2 million in criminal penalties and community service fines for its violations in 2014. For some Maui residents who’d been pushing for tougher pesticide use regulations and transparency since 2013, Monsanto’s admission of guilt confirmed what they already knew and had been trying to communicate to the public for years (see last week’s story).

Image courtesy Deb Mader. Activists protest the use of methyl parathion back in January 2016, years before Monsanto admitted using the banned pesticide.

Recorded testimony, video, audio, and photos show that community members knew about Monsanto’s illegal use of methyl parathion in 2014. But when these concerns were presented to the elected officials and government employees, they were pushed aside for years. Through continual community organizing, rules for pesticide disclosure and buffer zones finally passed in 2018, and the first mandatory annual reports of pesticide use will be due at the end of January 2020.

Monsanto’s careless use of dangerous chemicals at Maui sites is a key allegation of the lawsuit filed on behalf of two Maui families in October. The complaint alleges that Monsanto “knew or should have known about the hazardous nature” of the chemicals applied at its Kihei fields and had a duty to ensure these pesticides were “applied in a manner that did not cause them to drift” to nearby homes.

The plaintiffs in the case, the family of Dana Fulton and the family of Max Coleman, lived within a half-mile downwind of Monsanto Mokulele where unknown chemical cocktails were applied. They claim that Monsanto failed at upholding its responsibility to the nearby community and that birth defects experienced by Fulton and Coleman were the direct result of in utero exposure to pesticides, which “was foreseeable and could or should have been anticipated by Monsanto.”

The lawsuit also notes that the complete records of what was sprayed, where and when, and at what concentrations and frequency “is in the exclusive possession and control of the defendant Monsanto.” Both families say they did not know about the potential harm from chemicals at neighboring Monsanto fields until they heard a 2017 radio ad explaining the connection between birth defects and exposure to pesticides.

Photo courtesy Dana Fulton. Fulton was born with her throat not connected to her stomach, and is another plaintiff in the case. The lawsuit alleges pesticide drift from Monsanto’s fields resulted in exposure to pesticides while Fulton’s mother was pregnant , causing the birth defect.

“We have great sympathy for the plaintiffs, but we are confident that pesticide use on our Maui farms did not cause the health claims described in the lawsuit,” said Bayer spokesperson Richard Meiers Tuesday. The statement was nearly identical to one provided to the press months ago when the Fulton-Coleman lawsuit against the company was filed, with a notable deletion.

On Oct. 25, Bayer released a statement to KHON2 that added, “On Maui, where many Bayer employees live near our farms, we take very seriously our responsibility to use all pesticide products safely and in accordance with the strict rules established by regulatory authorities. Every pesticide we use on our Maui farms has been comprehensively assessed and approved by the US Environmental Protection Agency, and every Bayer employee who applies the pesticides has undergone extensive training to ensure safe use for surrounding communities. The Hawai‘i Department of Agriculture conducts oversight to further ensure safe use.”

The omission is understandable. Indeed, the claim that “every” pesticide used has been approved by the EPA and that the HDOA conducts proper oversight has been a refrain of the company that – in light of Monsanto’s Nov. 21 admission to using, storing, and transporting a banned pesticide – no longer holds credibility.

“Whenever we take questions or concerns to the legislature, an agency, or a regulator, we get the same stock response,” said director of the Hawai‘i Organic Land Management Program of Beyond Pesticides, Autumn Ness, who’s worked as a private citizen and with multiple organizations to advocate for tougher pesticide rules since 2013. “Here is one more example where that is blatantly false. Monsanto/Bayer cannot be trusted. Regulations aren’t being followed, safety protocols aren’t working, the regulators aren’t regulating. And who suffers? The people downwind and our fragile island ecosystems.

“How many times can one corporation prove that they cannot be trusted?” Ness asked. “They are well past losing the right to do business here.”

A court date for the Fulton and Coleman families’ lawsuit has not been set.

Further adding to public health concerns regarding pesticide use, Maui County spokesperson Brian Perry released a statement on Nov. 27 saying that a metabolite of methyl parathion was detected in wastewater samples by the county Department of Environmental Management as late as October 2016, three years after the chemical was banned. The county reported the findings to the EPA and state Department of Health last week.

Concentrations were highest in Kihei, followed by Moloka‘i, where Monsanto has extensive operations, and the review of wastewater data was sparked by news of Monsanto’s violations, Perry said. However, the source of the residue was not identified. “We are unaware of any connection to our farms,” Meier commented.

Gee, sounds like those pesticide disclosure and transparency bills that failed in 2015 sure would be helpful now…

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