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Updated:4/18/02 |
| Memo
from four non-governmental organizations: Compliance with Fumigation Conditions
in the Andean Counterdrug Initiative, April
10, 2002 DATE: April 10, 2002 TO: Foreign Policy Aides FROM:
Kimberly Stanton, RFK Memorial RE: Compliance with Fumigation Conditions in the Andean Counterdrug Initiative The fumigation conditions which the Congress included in P.L. 107-115, the FY 2002 foreign appropriations act, were intended to address growing concerns about the health and environmental impact of aerial fumigation, and to ensure that a balance is struck between alternative development assistance to small farmers and punitive fumigation methods. [1] As the analysis below shows, not a single one of the fumigation conditions is close to being met by the Administration and the Colombian government:
Despite these facts, the Administration plans to rapidly expand fumigation to 150,000 hectares this year and 200,000 in 2003 (compared to 94,000 hectares in 2001) and has signaled its intention to scale back alternative development efforts. These decisions are likely to further exacerbate the humanitarian crisis in Colombia. These findings are elaborated below. Please contact us with any questions or clarifications, at your convenience. 1. Fumigation is being carried out in accordance with EPA regulatory controls and Colombian law. In order to know whether the fumigation meets regulatory controls specified in EPA registered product labels, we need to know what chemicals are being sprayed in Colombia and in what concentrations. But the U.S. and Colombian governments have provided incomplete and conflicting information on the herbicides being used. It appears that the planes are spraying a mixture that includes a 44% solution of formulated glyphosate herbicide, 55% water and 1% Cosmoflux, an additional surfactant, and that 10.4 liters (2.75 gallons) of this mixture are sprayed per hectare of coca crop. However, there are conflicting accounts as to whether the formulated product being used is Roundup Ultra, Roundup SL, or some other formulation, and whether or not coca crops and poppy crops are sprayed with the same mixture and concentration. [2] The chemical composition of Cosmoflux is also unavailable, based on the argument that it is proprietary information. Without this information, it is impossible to know with certainty whether EPA requirements are being met. If the formulated product is Roundup SL, this product was only recently approved for use in the United States, but not for agricultural purposes. There is some question about the registration of this product because the manufacturer, Monsanto, states that is has no intention of marketing the product in the U.S. [3] Also, as recently as November, 2000, the U.S. EPA prosecuted and successfully convicted Larry Johnson of Montana for illegally importing Roundup SL (at that time sold abroad as Roundup Export) “the sale of which is prohibited in the United States because it can cause severe and irreversible eye damage.” [4] If the formulated product is Roundup Ultra, the spray mixture used in Colombia is both more concentrated and applied in greater doses than the maximum levels recommended by the manufacturer on the U.S. label. The spray mixture in Colombia contains 44% Roundup Ultra by volume, [5] while the U.S. label for Roundup Ultra allows concentrations of 1.6% to 7.7% [6] for most uses, and at most, a concentration of 29%. The U.S. label states that in most situations aerial application should not exceed 1 quart per acre of the formulated product. [7] In Colombia, the rate is almost 4 ½ times that amount. [8] Label requirements appear to be surpassed under conditions of use in Colombia in other instances as well. The label for Roundup Ultra specifies that users should “not apply this product in a way that will contact workers or other persons, either directly or through drift. Only protected handlers may be in the area during application. [9] ” However, local inhabitants are not informed of the spray episodes and are likely to be in the area when herbicides are applied. Both U.S. labels for Roundup SL and Roundup Ultra require that the product not be applied “directly to water, [or] to areas where surface water is present” and that the user take specific precautions to avoid drift. [10] We do not have sufficient information to evaluate if appropriate measures are being taken to comply with these EPA requirements, i.e. information regarding the scale, level of detail, and accuracy of maps used to identify target areas, range of wind conditions and altitudes in which herbicide is applied, minimum buffer zones between target areas and water bodies, etc. However, there is substantial data to indicate that water bodies, agricultural areas, and other land uses are being sprayed. [11] The legality of fumigation under Colombian law has been questioned repeatedly. During 2001 several Colombian government officials, including the Public Ombudsman, the Comptroller General, and a group of 22 Colombian Senators and Representatives, identified legal prerequisites that had not been met in initiating the fumigation, including: · No plan for environmental management of the areas to be fumigated was in place. · Parts of Resolution No. 5 of 2000, of the National Anti-Narcotics Council, had not been implemented, including requirements to geo-reference all development projects and to define a procedure for handling complaints due to fumigations. · Lack of coordination among responsible agencies, and the failure of the Ministry of Health to exercise oversight authority established by law. Late last year an environmental management plan was finally issued, and we are seeking to obtain a copy in order to evaluate compliance with its provisions. In August 2001 the Public Ombudsman concluded that the geo-referencing that existed was inadequate to identify exposed ecosystems or other areas that should receive special treatment. [12] Although a complaints procedure has recently been established, it is not effective (see discussion below). The lack of coordination among Colombian government agencies has not been rectified. Colombian law is inconsistent with regard to the status of small producers of coca, who account for as much as 60 percent of the total produced. [13] According to Law 30 of 1986 and the Penal Code, anyone with more than twenty plants is subject to criminal sanction. The Council for Economic and Social Policy, the National Department of Planning and Plan Colombia define small producers as those with fewer than three hectares, while for Plante the cut-off point can be up to five hectares. [14] These inconsistencies, and the fact that small producers are also identified in national planning documents as a target population for alternative development programs, could affect future judicial rulings on the legality of fumigating this sector. Finally, according to the Public Ombudsman the fumigation violates several constitutional principles. [15] The first of these is the principle of precaution which is central to the right to a healthy environment, guaranteed in the Colombian constitution. This principle, also found in the Río Declaration on Environment and Development and codified in Colombian Law 93 of 1994, provides that in case of doubt as to the vulnerability of the environment or its deterioration due to a specific policy, the effects of the policy must be limited or it cannot be implemented. Second, the state has a constitutional obligation to harmonize its policies: the state may not destroy the environment on the pretext of combating crime. Third, the constitution provides that the state will promote effective equality and adopt measures that favor groups discriminated against or marginalized. Yet the fumigation is disproportionately affecting indigenous, Afro-Colombian and poor peasant communities. These constitutional questions have not yet been heard by Colombian courts, but test cases can be expected to emerge. 2. The chemicals used in aerial fumigation, in the manner in which they are being applied, do not pose unreasonable risks or adverse effects to humans or the environment. Based on the information available, it is impossible to know with certainty the risk posed to human beings and the environment by the chemicals being sprayed in Colombia. Neither the U.S. government nor the Colombian government has presented an adequate assessment of the potential human health and ecological impacts of the formulated spray mixture under exposure conditions experienced in Colombia. The State Department has solicited toxicity assessments for three different herbicide formulations but has not yet presented the results. As of November 2001 there were no systems in place to monitor health or ecological effects resulting from the spraying [16] and no baseline data exists in Colombia to evaluate the impact of the fumigation on health or on the environment. No studies have been identified that demonstrate the safety over time for human health and the environment of this combination of chemicals, in the form in which it is being applied. Yet the label for these products indicate that Roundup Ultra causes “eye irritation,” and Roundup SL causes “irreversible eye damage, [is] harmful if swallowed or inhaled, [and] may cause skin irritation.” In situations where people are uninformed of when spraying will occur and are not wearing protective clothing required in the U.S. for pesticide workers, we can expect direct exposure to the herbicide to occur. There have also been numerous reports of illnesses associated from exposure to the spray chemicals, such as skin lesions and rashes, gastrointestinal infections, acute respiratory infection and conjunctivitis. [17] Even though studies conducted in Colombia do indicate a potential impact in human health from the fumigation, the State Department has told us that no further studies are underway or planned at this time. The State Department has asserted that the aerial herbicide spraying causes no human health harms, but the three studies they use to support these claims present no credible scientific evidence that the spraying is safe for human health. The first health study is irrelevant because it does not consider impacts from spraying for coca eradication, but rather focuses on impacts from the less hazardous poppy eradication program - the herbicide solutions used to control coca are nine times as concentrated as those used to control poppy. The second study was conducted five months after the spraying took place and therefore was inconclusive. Regarding this study, the EPA and the CDC indicated that it is impossible to determine whether aerial spraying is making people sick without testing subjects before and immediately after the spraying. [18] The third scientific review does not apply because it assesses the health risk of glyphosate and Roundup products under specific conditions which are extremely unlikely in Colombia, i.e. that drinking water is purified prior to ingestion, that workers wear protective clothing, that only small quantities of contaminated surface waters are consumed, etc. [19] The broad-spectrum herbicides used in the aerial spraying are designed to kill a wide range of plants and may destroy endangered plant species and disrupt habitats. Since Colombia is one of the worlds’ biologically richest counties, the threat from spraying is particularly great. [20] Studies show that glyphosate formulations have toxic effects on aquatic organisms including fish, amphibians, insects, crawfish and water fleas. Glyphosate can also affect soil organisms including earthworms, fungi, and microbes. Fumigation can also lead to deforestation and habitat loss when farmers clear new areas of previously undisturbed forest in response to the destruction of their legal and illegal crops. [21] 3. Procedures are in place to evaluate claims of damage to human health or legal crops and to provide fair compensation for meritorious claims. Based on interviews with the staff of the Public Ombudsman’s office, and with government officials and peasant leaders from Putumayo, Narino, Cauca and Tolima, we were unable to document any cases of compensation for damage to health or to legal crops from the fumigations carried out since December 2000. More than 1400 complaints are on file with the Public Ombudsman’s office in Bogota, but none are known to have resulted in compensation. On October 4, 2001, the National Anti-Narcotics Council issued Resolution 17 establishing a new procedure for the presentation of claims of damage due to aerial fumigation. The procedure is as follows: Complaints must be presented to the municipal ombudsman, which in turn will ask the local agrarian extension offices (ICA or UMATA) to verify the complaint by visiting the affected farm. Once verified, the claim is forwarded to the Anti-Narcotics Police and the National Anti-Narcotics Directorate. The police then certify whether spraying took place at the time and place the victim claims. If the police certify that no spraying took place, the procedure ends. If they certify that there was spraying, the police send another verification mission which is responsible for determining the value of the loss. In order for compensation to occur, the final request must include satellite reports, spraying diagrams, and the local report on detection of illegal crops. This procedure has serious flaws:
Finally, the procedure applies only to agricultural losses. Nothing is in place to handle claims of damage to human health. 4. Alternative development programs have been developed, in consultation with communities and local authorities in the departments in which such aerial coca fumigation is planned. INL is interpreting this condition to mean that if any alternative development project exists anywhere in a department where spraying is planned, then the condition has been met. By this interpretation, the alternative development projects need not have been developed by USAID. Projects developed by the Colombian government, the United Nations Development Program, UNDCP or through any bilateral assistance program would count towards fulfilling the condition. The project can be of any size, i.e., it could cover only a small fraction of the territory of a department or be in a region left untouched by spraying, yet it would still count as fulfilling the condition. No direct relationship between the planned spraying and the development program is seen as necessary. In several conversations with Colombian visitors over the last year, State Department officials, including Rand Beers, have made clear that the purpose of the fumigation is to demonstrate to peasants wherever they are in Colombia that there is no part of the country where they can safely plant illegal crops. The fumigation strategy is explicitly punitive and is designed to be implemented without regard for the status of alternative development efforts. USAID, Plante, local and regional governments and other agencies with development responsibilities are not consulted with regard to the timing or location of fumigation. In 2002 the US government plans to spray 150,000 hectares of coca and poppy throughout Colombia, increasing to 200,000 in 2003. These plans are not in any way linked to alternative development programs. 5. In the departments in which aerial coca fumigation has been conducted alternative development programs are being implemented. The only department where aerial fumigation of coca has been explicitly linked to alternative development is Putumayo, by means of the social pacts. Between December 2000 and July 2001 more than 37,000 families signed agreements with the Colombian government in which they agreed to manually eradicate illegal coca crops within one year in exchange for food and development assistance. The 37,000 families – approximately 150,000 people, or nearly half the population of the department – came from all nine of the coca-producing municipalities in Putumayo (in the department’s other four municipalities, no illegal crops are produced). They committed to eradicate 37,728 hectares of coca, [22] more than half of the estimated 66,000 hectares planted in the department. Peasant leaders, local authorities and the governor of Putumayo put their lives at risk to promote the social pact concept. However, eight months after the last pact was signed, only 30 percent of the families had received any of the promised aid, and even that 30 percent had not received all that was due to them in accordance with the provisions of the pacts. As a result very little coca has been eradicated. In light of this result, USAID has concluded that the social pacts are not an effective strategy for eradication or development.
The State Department and USAID are giving up on the social pacts in Putumayo even though officials acknowledge that the pacts were poorly designed, not given enough time, implemented by non-governmental organizations with no knowledge of or experience in Putumayo, and completely hampered by the failure to deliver the assistance that was promised. The last year cannot be considered a fair test of whether an appropriately designed and implemented alternative development strategy can work in Putumayo. Even though the US government is backing away from alternative development programs in Putumayo, INL/NAS has already scheduled a new round of fumigation to begin July 28, 2002, the day after the anniversary of the signing of the last pact. The date chosen reflects the current position of the Colombian government, as stated by Gonzalo de Francisco, that the year designated for eradicating the coca began to count down on the date the social pacts were signed. But the Public Ombudsman explicitly contradicts this claim in his December 2001 analysis of the social pacts, [23] as do peasant leaders who were involved in the negotiations around the pacts. The decision to accelerate fumigation while reducing the commitment to development clearly contradicts Congressional intent in imposing the fumigation conditions. Fumigation Conditions, P.L. 107-115 P.L. 107-115, the FY 2002 foreign appropriations act, includes the following conditions on aerial fumigation: “Provided further, That funds appropriated by this Act that are used for the procurement of chemicals for aerial coca fumigation programs may be made available for such programs only if the Secretary of State, after consultation with the Administrator of the Environmental Protection Agency, the Secretary of the Department of Agriculture, and, if appropriate, the Director of the Centers for Disease Control and Prevention, determines and reports to the Committees on Appropriations that: (1) aerial coca fumigation is being carried out in accordance with regulatory controls required by the Environmental Protection Agency as labeled for use in the United States, and after consultation with the Colombian Government to ensure that the fumigation is in accordance with Colombian laws; (2) the chemicals used in the aerial fumigation of coca, in the manner in which they are being applied, do not pose unreasonable risks or adverse effects to humans or the environment; and (3) procedures are available to evaluate claims of local citizens that their health was harmed or their licit agricultural crops were damaged by such aerial coca fumigation, and to provide fair compensation for meritorious claims; and such funds may not be made available for such purposes after six months from the date of enactment of this Act unless alternative development programs have been developed, in consultation with communities and local authorities in the departments in which such aerial coca fumigation is planned, and in the departments in which such aerial coca fumigation has been conducted such programs are being implemented.” [1] The text of the conditions is found on the last page of this memo. [2] Earthjustice, “Information received to date about what is being sprayed in Colombia,” March 2002. [3] Information from various sources at Monsanto. [4] US EPA Press Release, November 21, 2000. [5] Excerpt from “Aerial Spraying in Colombia: Health and Environmental Effects.” Prepared by the Institute for Science and Interdisciplinary Studies. U.S. State Department, written answer to questions from U.S. Representative McGovern Op. Cit. See also Narcotics Division of the Colombian National Police. “Dosis De Aplicación y Composición de la Mezcla Utilizada Según Tipo de Cultivo” (table provided to members of the Colombian Congress, reproduced in Anna Cederstav, "Rejoinder to the State Department's Nariño Study," http://www.usfumigation.org, visited March 1, 2002.) [6] Excerpt from “Aerial Spraying in Colombia: Health and Environmental Effects.” Prepared by the Institute for Science and Interdisciplinary Studies. Roundup Ultra sample label, 1999, p.3. Section 7.1. (The label calls for mixing one quart of herbicide with 3 to 15 gallons of water “unless otherwise specified in this label.” None of the exceptions appear to apply to the wide ranging, aerial spraying of coca crops as carried out in Colombia.) [7] Ibid. [8] Excerpted from “Aerial Spraying in Colombia: Health and Environmental Effects.” Prepared by the Institute for Science and Interdisciplinary Studies. U.S. State Department, written answer to questions from U.S. Representative McGovern Op. Cit. See also Narcotics Division of the Colombian National Police. Op. Cit. [9] EPA registered label for Roundup Ultra. [10] U.S. Registered Labels for Roundup Ultra and Roundup SL. [11] Cesar García, "U.N. Calls for Drug Crop Monitors," Associated Press (July 24, 2001). Eduardo Cifuentes Muñoz, Human Rights Ombudsman, "Sobre el impacto de fumigaciones en 11 proyectos de desarrollo alternativo en el Putumayo," Resolución Defensorial No. 004, February 12, 2001. Luz Angela Pabón, España, Municipal Police Inspector, Valle de Guamuez, Putumayo, Colombia "General Summary of Losses due to Fumigation through 21 February 2001." [12] Defensoría del Pueblo, “Intervención en la sesión ordinaria del Senado”, August 21, 2001, p. 9. [13] Defensoría del Pueblo, “Estrategia de desarrollo alternativo y pactos voluntarios para la sustitución de los cultivos con fines ilícitos”, December 5, 2001, page 3. [14] Ibid., p. 23. [15] His arguments are fully elaborated in the August 2001 document. [16] Resolution 1065, Colombian Ministry of Environment, November 26, 2001. In 1992, when the National Narcotics Council adopted the policy of fumigating poppy, the Ministry of Health proposed a plan to monitor the impact of fumigation on epidemiology and to strengthen emergency services for those affected. In 1994 when the Council extended fumigations to marijuana and coca, the Ministry of Health again argued for a health plan. To date none has been implemented. The Public Ombudsman has argued that the fumigation policy violates the right to health of the affected population, because there is no plan for epidemiological follow-up and because the responsible health officials are not exercising their authority (August 200, p. 15). 17 Departamento Administrativo de Salud, Oficina de Planeación, Sección Epidemiología, "Efectos de la fumigación: Valle del Guamuez y San Miguel Putumayo," (February 2001). Red Europea de Hermandad y Solidaridad con Colombia, “Informe Sobre Los Efectos de las Fumigaciones y las Constantes Violaciones a los DDHH en el Valle del Río Cimitarra,” Equipo Nizkor--Serpaj Europa, September 3, 2001. (Contact nizkor@derechos.org for more information.) El Comercio, Quito, (October 22, 2000) cited in Adolfo Maldonado, Ricardo Buitrón, Patricia Granda, Lucía Gallardo, Reporte de la Investigación de los Impactos de las Fumigaciones en la Frontera Ecuatoriana. June 2001. [18] April 17, 2001 letter from Colombian Ambassador Anne Patterson to Senator Patrick Leahy. [19] Memo from Anna Cederstav, Ph.D., Earthjustice, regarding the validity of reports presented by the U.S Department of State as evidence that no human health impacts are caused by the “Plan Colombia” aerial herbicide spraying in coca-producing regions. [20] William Eichbaum (Vice-President, Endangered Spaces Program, World Wildlife Fund), letter to Senator Russ Feingold, November 21, 2001. [21] Excerpt from “Aerial Spraying in Colombia: Health and Environmental Effects.” Prepared by the Institute for Science and Interdisciplinary Studies. [22] Defensoría del Pueblo, “Estrategia de desarrollo alternativo y pactos voluntarios para la sustitución de los cultivos con fines ilícitos”, December 5, 2001, page 39. According to the same document, 37,775 families signed the pacts. |
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