In 1997, the Environmental Enforcement Section (EES) brought preliminary injunction claims against the partnership operating a 2,300 acre mango and banana plantation on the south coast of Puerto Rico alleging that the farm was spraying pesticides in a manner that allowed harmful quantities of the substances to drift into the neighboring community. The neighbors living in a less-affluent rural community known as Barrio Boca, are separated from the farm only by a fence or a small seasonal river.
In declarations taken by EES attorneys, the residents complained of feeling the pesticides land on their skin and of respiratory problems when the spraying occurred. The Section’s action was based on:
- the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which regulates the application of pesticides, including a prohibition on allowing pesticides to drift off of a farm; and
- the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), which, among other requirements, makes parties liable for releases of hazardous substances.
After the United States secured a cease and desist order for certain pesticide spraying practices, the parties moved for summary judgement. Defendants argued that the exemption for liability for pesticide applications contained in CERCLA applied in this case, and that therefore they could not be liable under CERCLA. In one of the few rulings on this issue, the Court agreed with the United States that, when a pesticide is applied incorrectly and drift offsite occurs, a party can be liable under CERCLA. See Tropical Fruit, 2000 WL 628875.
At trial in 2001, the United States presented community member witnesses who described their exposure to the pesticide drift as well as expert testimony estimating the amounts of pesticides drifting into the community and the toxicological effects of such exposure. Following the presentation of EES’ case at trial, Tropical Fruit agreed to a settlement with the United States that required it to alter its operations, including the establishment of a buffer zone in which mechanical spraying of pesticides was prohibited.
After the farm violated this settlement, the United States was forced to bring a Motion for Contempt to enforce the original settlement. Thereafter the farm agreed to a second settlement in 2005 in which it:
- had to take additional measures to protect the neighbors from drift, including removing hundreds of mango trees from the buffer zone;
- planting a double row of Neem trees within the buffer zone to intercept any pesticide drift; and
- the prohibition of all pesticide applications within the buffer zone.
The United States actions to prevent the drift of pesticides from this farm into the neighborhood were ultimately successful in preventing the exposure that the neighbors were experiencing by fundamentally changing the operations of the farm.