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McEntee Media Corporation

Clopyralid case at an interlude

February 26, 2004
By Ken McEntee
A lawsuit against Dow AgroSciences over compost damaged by clopyralid remains in the discovery process in Illinois state court. Attorney Scott Summy, of Dallas-based lawfirm Baron & Budd, told members of the U.S Composting Council (USCC) that the case should pick up steam this year.
Last year, he said, Dow, the producer of the persistent herbicide, "bogged it down" by asking the Illinois Circuit Court to move the case to federal court. Last August, the federal court ruled against Dow, sending the case back to Illinois. Garry Hamlin, spokesman for Dow, said the case remains in the discovery process, where the parties exchange information relevant to the case. Hamlin said he doesn't know how long the process would take.
Meanwhile, Summy, speaking at the USCC's annual conference at the end of January, said that while the issue has been quiet, clopyralid continues to be a growing national problem, which poses danger to the industry.
However, a workshop called at the conference to discuss the clopyralid problem drew little more than a handful of interested participants - a remarkably small number considering the devastating impact some say clopyralid may have on the industry. When pressed for a number of composters who have called him about clopyralid and the lawsuit, Summy said he received between 60 and 100 calls in the last year.
Summy was hired to file a class action lawsuit for Cedar Grove Composting, of Washington, and Pioneer Southern, of Belleville, Ill., which took financial losses due to clopyralid contamination in their compost.
The suit, which was filed in 2002, has not been granted class status by the court. Summy said that could be done following the discovery process.
Currently, only Pioneer Southern and Cedar Grove have signed onto the suit.
"In a class action you don't really want to have a lot of plaintiffs," he said. "I think a lot of people are waiting to see how the case develops."
He said the cities of Lincoln, Neb. and Spokane, Wash., along with a private composter in Colorado may be added as class representatives if class certification is granted. While Spokane was hit hard by contaminated compost in 2002, the city of Lincoln announced that "trace amounts" of clopyralid had been found in its LinGro compost last fall. The city said clopyralid levels between 13 and 23 parts-per-billion (ppb) were found, but assured residents that "damage to vegetable gardens and broad-leaf ornamentals can be avoided if the compost is applied according to city-developed guidelines."
While the publicity over clopyralid has waned, Summy said the problem is growing.
"Dow wants to say that this is a West Coast problem but I can tell you that is absolutely false," he said. "Clopyralid has been detected in compost in West Coast states, but also in Colorado, Nebraska, Kansas and farther east in Ohio, Pennsylvania, New York, Virginia, Maine and New Jersey. The focus has been on grass clippings from municipal programs but contamination from agricultural crop residues is a lesser-known problem. The residues go to a compost site or are eaten by animals and passed along. The agricultural use gets overlooked too often in the clopyralid issue. A lot of compost is applied to corn, sugar beets and spring wheat and a lot of these mainly impact the upper Midwest. The reason we are not finding (clopyralid contamination) in the upper Midwest is because nobody is testing."
While the court battle moves silently behind the scenes, Summy said the industry is being deeply impacted by both clopyralid contamination and a negative perception of compost due to clopyralid.
"This is a threat to your industry and the first reason is perception," Summy told conference attendees. "Perception is reality. There are people out there that believe that they are eating it and that it causes cancer. There are actually doctors on the Internet that are talking about the health hazards of clopyralid. There are no health hazards, but the perception is there."
A workshop attendee agreed.
"A lot depends on how you define an impact (on a plant)," she said. "Labs can see visual impacts at 10 parts-per-billion. Once a consumer sees a curled leaf you are not going to charge that perception."
Summy said Dow knew, following a 1991 study done by Michigan State University, that clopyralid caused plant damage and did not break down during the composting process.
"They changed their label to say not to compost grass clippings that were treated with clopyralid," he said. "They think that once the label was changed they could wash their hands of it. And that puts the burden on you. How can you not compost the grass clippings when the law says you have to."
While Summy says the problem is escalating, Hamlin noted recent research that indicates that plants are less sensitive to clopyralid than previously believed. Skeptics note that the research was done by Woods End Research Laboratory, which has been paid by Dow for earlier research. However, research at Washington State University (WSU), which was severely impacted by clopyralid contamination, also indicated that higher levels of clopyralid than earlier thought are necessary to cause adverse effects on plants.
Recent WSU research indicated "noticable" effects at levels of about 50 parts-per-billion (ppb).
Research released this month said clopyralid levels in Washington have dropped substantially since the state banned clopyralid from residential lawns in 2002 (see article, page 1).
"The data appears to be tilting in a very different direction than two years ago," Hamlin said.
Summy said he doesn't buy the new data.
"Dow is going to try to say that a higher level is necessary to cause damage to plants," he said. "I disagree."
Nevertheless, clopyralid contamination has not gone away. And Summy said composters will be left holding the bag of liability for damaged crops grown with contaminated compost if Dow isn't held responsible.
"If you sell a product that kills plants you guys are left liable," he told USCC members. "Then what are you going to do? The key question that is going to occur in this litigation is how much of this liability is this industry going to incur? Dow knew that the product was defective in that it did not break down in compost."
He said composters are now in a no-win situation.
If they test for clopyralid in their product, they will lose business if it is found. Yet they will be liable for damages if clopyralid is later found.
"Many people take the attitude that if I don’t test what I don’t know won’t hurt me," he said. "That is going to look bad down the road if there is a claim - you didn’t care enough to test. See what a Catch 22 Dow AgroSciences has put you guys into? When I come back here next year I am sure that the map of where clopyralid has been detected at is going to be bigger. This issue is not going away."
Another issue, aside from product liability, is a potential reduction or loss of compost feedstocks. There is some concern that municipalities may begin to revert to landfilling yard trimmings due to the clopyralid issue.
"The composting industry is losing feedstocks over this," said Paul Rosenfeld, of the UCLA Institute of the Environment. "They can't take golf course material is clopyralid was used, for example. In composting you want to be able to take as many feedstocks as possible."

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