Judge rules LBAM chemical's ingredients may published

October 17, 2007


Judge rules papers can continue to publish chemical's ingredients
By J.M. BROWN
SENTINEL STAFF WRITER


A Los Angeles Superior Court judge ruled Tuesday that the Santa Cruz Sentinel and another newspaper may temporarily continue to publish details about the "potentially harmful" pesticide that has been used in efforts to eliminate the light brown apple moth.

Judge David Yaffe denied a temporary restraining order request from Suterra Inc., maker of the CheckMate OLR-F spray that has drawn criticism, to keep the Sentinel and Monterey County Weekly from disclosing the product's "inert ingredients" The company has argued that publication of the ingredients is a violation of trade secrets laws.

A copy of Yaffe's ruling was not immediately available Tuesday, but attorneys for the two newspapers said the judge essentially said Suterra did not prove that the media outlets violated trade protections by publishing the ingredients.

Roger Myers, a San Francisco attorney representing the Monterey County Weekly, said the judge "didn't find that there was enough evidence that there was a significant trade secret here because there was no indication that when the EPA released it to the Sentinel, they had any idea that the Sentinel wasn't supposed to publish it or that the EPA wasn't supposed to release it"

The judge will rule Dec. 12 on a preliminary injunction Suterra is seeking to stop future publication of the pesticide's ingredients.

Local environmentalists and others in the community have expressed concerns about the spray. More than 100 residents in Monterey County, where aerial spraying began last month, have reported respiratory problems they blame on the pesticide. A similar compound, CheckMate LBAM-F, is slated to be used in Santa Cruz County next month to keep the agriculture-killing moth from spreading.

Both pesticides act as pheromones and seek to disrupt the male moth's mating cycle.

The Sentinel received information about the composition of CheckMate OLR-F last month from the Environmental Protection Agency, which reported this week that polymethylene polyphenyl isocyanate, or PPI — one of the compounds in dispute — is actually not part of the pesticide's mixture.

Monterey County Judge Robert A. O'Farrell is expected to rule Thursday on whether to extend his temporary ban on spraying the pesticide, an order which named PPI as a "potentially harmful" chemical. O'Farrell also is expected to decide whether to seal all future court records containing information about CheckMate's components, which Suterra is petitioning for.

Myers said, "We argued, and the court agreed, that there was no trade secret here — that the inert ingredient is not a trade secret and even if there were, it wasn't [a trade secret] after the EPA gave it to the Sentinel"

Even if the Los Angeles judge had found the newspapers disclosed trade secrets, Myers said the "public has a greater interest in knowing what's in [CheckMate]"

Two attorneys representing Suterra did not immediately return calls seeking comment Tuesday. Suterra's president, Steven Hartmeier, also did not immediately return a message.

The two newspapers intend to ask O'Farrell as early as today to rule against Suterra's request to seal details about its products' contents in the ongoing Monterey County lawsuit filed by Helping Our Peninsula's Environment, or HOPE, to ban the spray.

"We're fighting Suterra's attempt to seal information about the spray because we believe people have a right to know what's in it," the Sentinel's managing editor, Don Miller, said in a statement Tuesday.

James Chadwick, the Sentinel's attorney, said it's unclear how the EPA's admission Monday that PPI is not part of CheckMate OLR-F or CheckMate LBAM-F's makeup will affect Suterra's action against the newspapers or HOPE's legal efforts to ban the spray. The EPA originally told the Sentinel that CheckMate OLR-F contained PPI, which critics have said may cause respiratory problems if exposed to heavy concentrations, but retracted that information Monday.

"If it's true that PPI isn't contained in CheckMate, then why are [Suterra officials] concerned about disclosure of trade secrets?" Chadwick wondered.

Myers said, "It may be that Suterra doesn't want the media reporting on the health concerns of CheckMate"

Sentinel staff writer Julie Copeland contributed to this report.

Contact J.M. Brown at jmbrown [at] santacruzsentinel.com.

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You can find this story online at:
http://www.santacruzsentinel.com/archive/2007/October/17/local/stories/02local.htm