RESEARCH PAPER

PESTICIDE POLLUTIONTHE SEVEN SPRINGS CONTROVERSY

A CASE ON POINT

Science for Environmental Lawyers Law 802- Fall 1999 Professor David Rahni

Pace University School of Law

Contents

I. Introduction

II. Background on Proposed Mitigation Plan for Pesticide Use

III. The Linear Absorption System- Too Great a Risk?

IV. Toxicology Studies- Examples of Major Pesticides Proposed for Use at Seven Springs Golf Course and Their Possible Effects if Ingested

V. Legal Analysis- Do Environmental Protection Statutes Preclude the Development of the Proposed Golf Course at Seven Springs? VI. Conclusion

Bibliography

INTRODUCTION

Fresh drinking water is a precious commodity in our environment and must be protected to the utmost. When a potential danger is posed to a reservoir which serves as the only source of drinking water for an entire community, it merits close scrutiny by those charged with protecting the environment, as well as the health, safety and welfare of the community. This paper will focus not upon a hypothetical situation but an actual reservoir- Byram Lake, the sole source of fresh drinking water for the Village of Mount Kisco, and a source of potential danger for contamination of that reservoir, being the Seven Springs Golf Club, a project conceived by developer Donald Trump, with the resulting use of pesticides adjacent to the Byram Lake Reservoir.

The Village of Mount Kisco uses the unfiltered supply of surface water provided by the Byram Lake Reservoir, which is located in the upper portion of the Byram Lake River Basin. Byram Lake itself covers an area of approximately 161 acres. The drainage tributary to the lake is 1.37 square miles including the lake surface area. The storage volume of the reservoir when filled to the flow line of the spillway is estimated to be 948 million gallons. The Byram Lake pumping station has a capacity of 3.5 million gallons per day (3.5 MGD) with average daily consumptionof approximately 2.2 MGD and with distribution storage of 7.5 MG serving a population of 9,500. Estimated unaccounted for water is reported to amount to 26%. The annual average water use is 120,000 gallons per household in Mount Kisco. The water cost is $4.69 per 1000 gallons. The resulting annual average cost for water per household is approximately $575.00.

While the overall quality of Byram Lake water is considered good, it does not meet all of the New York State Department of Health criteria for filtration avoidance and is not acceptable for future use without filtration. Copper sulfate is applied as needed in the summer to Byram Lake to impede the growth of algae which can cause taste and odor problems. The New York State Health Department has granted the Village of Mount Kisco an exemption from the filtration requirement for its drinking water system. In order to receive this exemption until a filtration plant is constructed, other safeguards must be provided, such as adding a high degree of disinfection to protect against microbiological contamination of the Byram Lake water supply. Treatment includes the addition of 2.3 parts per million (ppm) of orthophosphate as a corrosion inhibitor, to reduce the water's corrosive properties, as well as chlorine gas disinfectant. Operating under these conditions, the Department of Health has determined that the exemption poses no unreasonable risk to the health of the Mount Kisco community. While treatment such as filtering and disinfection of the water removes and destroys microbiological contaminants, other potential dangers to the water supply have now come about as a result of the plan to construct the Seven Springs Golf Club and the resulting use of pesticides to maintain this golf course, which is adjacent to the Byram Lake Reservoir.

The Seven Springs Golf Club project is a new proposed use for the 213 acre former Eugene Meyer estate which is situated within the Towns of North Castle, Bedford

and New Castle in northern Westchester County. While the estate upon which Seven Springs will be built is not situated within the Village of Mount Kisco, the Village's interest is directly related to the fact that the proposed use of the property will be as a golf course, resulting in the use of pesticides to maintain said golf course, and that the property is bordered on the east by the Byram Lake Reservoir, which is the sole source of fresh drinking water for Mount Kisco. This paper will address the positions of both sides in this controversy, a toxicology analysis and the dangers posed to human health by the consumption of water contaminated by pesticides, possible mitigation measures that may lessen such adverse effects, and a conclusion and legal justification for the final course of action to be taken.

BACKGROUND ON PROPOSED MITIGATION PLAN FOR PESTICIDE USE

Pursuant to SEQRA (State Environmental Quality Review Act), when a proposed project is determined by the lead agency, which must approve of such project, to have a significant or adverse effect upon the environment (a Type I action), this mandates that a Draft Environmental Impact Statement (DEIS) be prepared by the developer, which is an extensive study and risk analysis of the environmental impact of a proposed project, especially within a watershed or adjacent to a wetland. Here, the developers of the proposed Seven Springs Golf Course had to take into consideration the close proximity of the golf course to Byram Lake reservoir, the possibility of the pesticides (toxic chemicals) entering the reservoir through stormwater runoff, and also the possibility that they can potentially leach into the soil and enter the lake through tributary groundwater or an aquifer. As part of their mitigation plan, the Seven Springs developers have proposed extensive stormwater runoff controls which are incorporated into the design of the golf course in order to limit on-site runoff and maintain existing off-site water quality and quantity. The plan includes a stormwater management system consisting of a series of small basins that will fill during storm events and slowly release trapped storm water over a period of 24 hours. Stormwater runoff control basins would be incorporated into the golf course which are designed to control the peak rate of runoff for a series of storms ranging from 1-year to 100-year frequency.

Another factor proposed is to minimize water usage at the golf course and avoid unnecessary fertilizer and pesticide application through an Integrated Turfgrass and Pest Management Plan (ITPMP). Integrated pest management is a guiding philosophy which underlies most strategies to reduce pesticide use. In general, integrated pest management can draw upon biological controls (eg., natural predators of pests), cultural practices (eg. planting patterns), genetic manipulations (eg., pest resistant turfgrass), and the judicious use of chemicals to maintain plantings while minimizing hazards to health and the environment. The ITPMP to be used at the Seven Springs golf course consists of a program of fertilizer selections, pest control options and other maintenance practices to be employed at Seven Springs. The proposed goal of the ITPMP is to produce a healthy, pest-resistant playing surface, minimal use of water, and minimal impact upon the surrounding environment. Included in the program is the selection of pest-resistant grasses, the construction of appropriate topsoil, a strict, controlled fertilization use,

optional levels of irrigation and the selective use of appropriate pesticides as a last resort. The developer has proposed that the pesticides in question would only be used on the course only when the pest level exceeds a certain threshold, when conditions are favorable and when other control methods have failed.

The plan includes the application of nutrients to the turf through "fertigation", a process which refers to the coordinated application of fertilizer by injecting nutrients into the irrigation system, which is expected to provide much of the nitrogen applied and limit fertilizers to the minimum amount actually required. A modern, computer-controlled irrigation system supposedly would only apply the amount of water necessary for adequate plant growth and prevent over-irrigating, which could increase the likelihood of pesticides or nitrates leaching into groundwater or entering the surface water through stormwater runoff. Any clippings or cuttings, it is proposed, would be removed from the site for composting.

Perhaps the most controversial component of the mitigation plan is that, in addition to stormwater runoff quality controls, a comprehensive stormwater quality system has been specifically designed for the Seven Springs course, which is known as a Linear Absorption System (LAS). In order to function properly, the LAS has two principal component parts: absorption swales and activated carbon chambers. The LAS was supposedly designed to protect water quality and is, to the best of the developers' knowledge, the first such systematic application of this technique to an entire golf course. This proposed LAS, to remove pesticide residues in the surface runoff from tees, greens, fairways and roughs, will be to direct such runoff into filtration swales which will border the edges of the golf holes. The runoff water would then infiltrate into the subsurface portion of the LAS, containing organic and granular components and drainage piping. After moving within the soil layers and piping, and prior to discharge of the collected runoff, the water will then be directed through a chamber and treated by activated carbon. After such removal of pesticide residues, the stormwater runoff will then be discharged to the land surface and will follow its natural patterns of drainage.

According to the Final Environmental Impact Statement (FEIS Vol. I, pg. III-6), the LAS integrates into a comprehensive system several commonly used individual stormwater management elements. These elements include a grassed infiltration swale, a lined infiltration trench, collection piping, and a granulated activated carbon (GAC) contact chamber. The function of the grassed infiltration swales and the lined trenches is to capture, filter and infiltrate stormwater from the turf areas of the golf course, and the function of the activated carbon chambers is to remove pesticides potentially present in the stormwater runoff. Activated carbon was chosen by the developers for this application because of its supposed effectiveness in removing organic chemicals from drinking water, and because it is widely used in municipal drinking water treatment systems in the United States. The system consists of separate units installed at every hole of the golf course.

The proposal includes as a secondary function of the LAS, removing fertilizer nutrients such as nitrogen and phosphorous by directing stormwater runoff through a

series of detention basins, forested filter strips, swales and ponds serving each of the site's drainage areas and designed to reduce nutrient runoff to, or below pre-development levels. This process would be governed by Best Management Practices (BMP's).

In order to address the risk of LAS system failure (such as if pesticides are continually detected at monitoring locations), a standby supplemental system would be in place which would include the collection of first flush runoff at centrally located points, which would then be routed through additional carbon contact chambers which would be independent of the LAS.

THE L INEAR ABSORPTION SYSTEM- TOO GREAT A RISK?

The project as undertaken by the Seven Springs developer supposedly utilizes worst case scenario assumptions throughout their analysis. The bottom line as represented by the Seven Springs developers is that the Linear Absorption System (LAS) as proposed in the Draft Environmental Impact Statement (DEIS) will eliminate pesticides in contaminated stormwater runoff, that they will not leach into groundwater or aquifers, and none will ultimately reach the Byram Lake reservoir. This is a flawed assumption for a number of reasons.

The DEIS (p. I-24) states that "The risk analysis for estimating potential pesticide impacts in the surface water focused on predicting concentrations of applied pesticides in stormwater runoff, based upon conservative, worst case analysis. Of the 26 pesticides proposed for possible use on the golf course, the estimated concentrations of 11 pesticides were below the relevant HALs (Health Advisory Levels); concentrations of 12 pesticides exceeded their respective HALs; and three pesticides do not have HALs". It should be stated that Health Advisories as conducted through the Office of Drinking Water (ODW) are neither legally enforceable standards nor are they issued as official regulations. They may or may not lead to the issuance of national standards or maximum contaminant levels (MCL's). The Health Advisories do not condone the presence of contaminants in drinking water; rather, they are prepared in order to provide specific advice on the levels of contaminants as they relate to possible health effects. They describe concentrations of contaminants in drinking water at which adverse, non-carcinogenic effects would not be anticipated to occur following one-day, ten-day, longer-term, or lifetime exposures. The Health Advisories are also subject to change as new and better information becomes available.

There is no suggestion within the DEIS by the Seven Springs developers regarding how high the exceedance of the HAL's for the 12 pesticides in the runoff would be. They would in fact be tremendously high. For example, an examination of the table provided in the DEIS (IVC-42 on page IV-232) shows that one fungicide, chlorothalonil, has a Health Advisory Level of 2 microns per liter, and would have an estimated concentration in the stormwater runoff of up to 8,256 micrograms per liter- which is 4,000 times the Health Advisory Level. While other pesticides being proposed do not have as high a discrepancy, several have concentrations in the stormwater runoff estimated to be at least ten times the Health Advisory Level. These pesticides include

MCPP, etridiazole, and trichlorfon. Any such runoff could enter the Byram Lake watershed as well as infiltrate the watershed of the New York City water supply.

Appendix G of the DEIS indicates that three of the pesticides proposed for use at Seven Springs, including two likely to be present in the stormwater runoff which exceed Health Advisory Levels, chlorothalonil (Daconil 2787) and etridiazole (Koban 30WP), as well as cyproconazole (Sentinel 40WG) contain ingredients in their chemical composition which are or may be animal carcinogens. Chlorothalonil is listed by the U.S. Environmental Protection Agency as a probable human carcinogen. It is included in the State of California's list of chemicals known to cause cancer. The fact that these pesticides exceed Health Advisory Levels, especially in the case of chlorothalonil, a probable carcinogen at 4,000 times the HAL, demonstrates that the worst case scenario in a study cannot relate to real life impact, where there are no guarantees. Considering the risk these chemicals potentially pose, the Linear Absorption System (LAS) would be the only source of protection for the Byram Lake Reservoir drinking supply and the New York City watershed. Is the risk of its success worth taking in order to construct a golf course? A risk assessment must be taken in order to evaluate the proposed LAS.

The Seven Springs developers have admitted that this would be the first time a comprehensive LAS would be constructed for utilization over an entire golf course. Its success or failure would determine if Mount Kisco continues to have pure, safe and drinkable water. In theory, the entire LAS is only as reliable as the sum of its parts, consisting of a gravel underdrain and swales for stormwater collection, activated carbon contact chambers to filter out pesticide matter, and outfall pipes. If these components have never been assembled for this purpose before, can we be sure that it will function as advertised, where any failure would allow contaminated stormwater runoff to be expelled into a reservoir? Constant error-free operation of the LAS would be necessary, especially since several of the chemicals vastly exceed accepted Health Advisory Levels. Obviously, constant and perfect functioning of the LAS cannot be guaranteed.

First, we must take into account the ways in which contaminated stormwater runoff can bypass the LAS system, which would compromise the purpose of the system even if it were to theoretically perform as intended. Groundwater seepage from the golf course site into Byram Lake must be taken into account. While the DEIS (pg. IV-117) states that inspection of the site revealed no seeps or springs along the steep slope leading into Byram Lake, which would indicate no groundwater flow from the site into Byram Lake, independent studies have in fact observed seeps along the Byram Lake shoreline, in particular near the pump house at the North end of the Lake. If this differing opinion is true, it would mean that contaminated groundwater could flow from Seven Springs into Byram Lake and thereby evade the Linear Absorption System.

Second, the DEIS (pg. I-15) states that "there is little evidence of hydraulic connection between the fractured bedrock aquifer on the site and Byram Lake to the East". It may then be implied that there is some evidence of such a connection between the aquifer and the Lake. In fact, the DEIS (pg. IV-115) further acknowledges that a "potential hydraulic connection between the site and the reservoir... along the northeast

trending fractures in the lower limb of the fold." This constitutes additional evidence that pesticides can potentially reach the Lake through an underground passage, which in this case is an aquifer.

Another potential problem would be caused by an error in the grading of the site. Since the LAS is dependent upon capturing all pesticide-contaminated runoff and diverting it into swales which lead to the activated carbon treatment chambers that the contaminated stormwater must pass through, any design error in the grading of the course would mean that the contaminant would not flow into the carbon treatment chambers but would bypass them and flow off-site, and potentially into Byram Lake.

A hypothetical that was also not considered was reflected in the DEIS (pg. I-24) which stated that "the design objective for the LAS is the removal of pesticides that may be present in the first flush of runoff from a 1-year, 24-hour storm event to prevent measurable pesticide loading to water resources, while preserving the aesthetic appeal of the golf course." This reflected that only a 1-year storm was analyzed in the DEIS, which also conceded that a storm greater that a 1-year, 24-hour duration would be beyond the capacity of the LAS, and the runoff would flow over the surface of the turf and bypass the activated carbon treatment chambers (DEIS pg. IV-238). Nevertheless, the developer rationalizes that this scenario is acceptable since the first flush of storm water would be treated, and the remaining pesticide flow diluted. However, this is not an impervious surface we are dealing with but a grassy turf, where the pesticides may leach below the surface and are not washed off by the first flush. Therefore, there would still be contaminant remaining to be brought to the reservoir by excessive runoff.

An important factor is the developers' assumption that an activated carbon contact treatment chamber will remove potential pesticides present in the stormwater runoff. According to the DEIS, activated carbon was selected for this purpose because of its demonstrated effectiveness in removing organic chemicals from drinking water, and because it is widely used in numerous municipal drinking water treatment systems in the United States (DEIS pg. I-12). However, what if activated carbon only works to filter out some pesticide chemicals but not all of them? Referring to Appendix G of the DEIS, Vol. 3, several of the chemicals proposed to be employed at the Seven Springs golf course have very high solubility and low absorption rates. This being the case, they would be able to pass through the activated carbon chamber and not be eliminated from the stormwater runoff. The potentially worst of these chemicals is dicamba, but it is also applicable to fosetyl-al, metalaxyl, and trichlorfon. It is questionable whether the LAS would be effective against these chemicals if the stormwater runoff reaches the system. The potential risk associated with the LAS is that the contaminated stormwater can potentially pass over, under, around and through it. It can then reach the Byram Lake reservoir. Since the LAS is an experimental treatment system, and some of the pesticides present in the stormwater runoff will exceed Health Advisory Levels (one such potential carcinogen, chlorothalonil, exceeds the HAL by 4,000 times), there are certainly no guarantees that contaminated stormwater runoff will not enter the reservoir.

Human failure in the Integrated Turfgrass and Pest Management Program (ITPMP) also presents a potential risk for reservoir contamination. The Seven Springs developers represent that the reservoir will be protected by the effectiveness of the ITPMP, which includes the proper application of the right doses of selected pesticides, the importance of not applying the pesticides prior to a heavy rain storm, nor in windy conditions where pesticides could be carried through the air to Byram Lake. The DEIS indicates that management has placed responsibility for implementing the ITPMP upon the golf course superintendent (DEIS pg. IV-125). However, human error is always a consideration in a risk analysis and therefore, raises the issue of whether the ITPMP will always be diligently followed to the letter.

First, the functioning of the LAS is dependent upon the runoff water down flowing into the swales and then being fed through the activated carbon chambers in order to eliminate pesticide chemicals in the stormwater before it is discharged. However, the DEIS states that the LAS units throughout the golf course must be visually inspected once a month in order to check for sediment accumulation or other fouling of the carbon filtration system (DEIS pg. IV-250). Since this is the first time an LAS unit has been built and employed in this fashion, a once a month inspection may not be adequate. Furthermore, carbon filtration/absorption systems accumulate sediment and other material which must be back washed or removed so that the filter will not clog. Since there is no provision for back washing the filter, but only for visual removal once a month of accumulated debris, there is likely to be a greater accumulation than anticipated, since turfgrass requires removal of large amounts of vegetation, grass clippings, and dead leaves, which are likely to wash into the filter, thereby clogging it and rendering it ineffective. The DEIS also does not indicate how and when the activated carbon will be removed from each chamber and replaced when needed.

TOXICOLOGY STUDIES- EXAMPLES OF MAJOR PESTICIDES PROPOSED FOR USE AT SEVEN SPRINGS GOLF COURSE AND THEIR POSSIBLE EFFECTS IF INGESTED

CHLOROTHALONIL

Chlorothalonil (trade name Daconil 2787) is classified as a General Use Pesticide (GUP) by the U.S. Environmental Protection Agency. It should ne noted that E.P.A. will classify a pesticide for general use if it determines that the pesticide will generally not adversely affect the environment when applied in accordance with its directions for use, warnings and cautions, and for the uses for which it is registered. In determining adverse environmental impact, E.P.A. will examine any unreasonable risk to people and the environment, taking into account the economic, social and environmental costs and benefits of the use of the pesticide. Chlorothalonil has been classified as a toxicity class II chemical- moderately toxic, due to its potential for eye irritation. It is part of the chloronitrile chemical class. It is a broad spectrum organochlorine fungicide used to

control fungi that threaten vegetables, trees, small fruits, turf, ornamentals and other agricultural crops. It can be found in formations with many other pesticide compounds.

The toxicological effects of chlorothalonil are as follows: chlorothalonil is slightly toxic to mammals, but can cause severe eye and skin irritation in certain formulations. Very high doses of this chemical may cause loss of muscle coordination, rapid breathing, nose bleeding, vomiting, hyperactivity and death. Dermatitis, vaginal bleeding, blood in urine and kidney tumors may also occur. Prolonged skin contact with chlorothalonil may result in dermatitis or light sensitivity. Human eye and skin irritation is directly linked to chlorothalonil exposure. In a study, 14 out of 20 workers who were exposed to 0.5% chlorothalonil in a wood preservative developed dermatitis. All of the workers showed swelling and inflammation of the upper eyelids. Allergic skin responses have also been noted in farm workers. Organ toxicity was found in rat and dog studies, where the animals were fed high dietary levels of chlorothalonil. It proved to be toxic to the kidney, resulting in less urine output, kidney enlargement, greenish-brown color and development of small grains.

The carcinogenic and ecological effects of chlorothalonil are as follows: Evidence gleanedfrom animal studies has been unclear as to chlorothalonil's carcinogenic potential. However, both male and female rats which were fed chlorothalonil daily over a lifetime developed carcinogenic as well as benign kidney tumors at higher doses. A second study in which mice were fed high daily doses of chlorothalonil over two years resulted in females developing tumors in the stomach area and males developing carcinogenic and benign kidney tumors. The ecological effects of chlorothalonil have shown that it is practically nontoxic to birds. However, it is highly toxic to fish, aquatic invertebrates and marine organisms. Fish, such as rainbow trout, bluegill and channel catfish are noticeably affected even when chlorothalonil levels are low (less than 1 mg/L). As to insects, the compound is nontoxic to bees.

The physical properties of chlorothalonil are that of a grayish to colorless crystalline solid that is odorless to slightly pungent. Its water solubility is 0.6 mg/L @ 25 C. In basic water (pH 9.0), about 65% of the chlorothalonil was degraded into two major metabolites after 10 weeks. In aerobic soils, its half-life is from 1-3 months.

For the purposes of backround information, pH reflects how acidic or alkaline (measurable ability of a solution to neutralize an acid) a solution is. Water with a pH of 7.0 is considered neutral water. Acidic water has a pH of less than 7.0 (eg., orange juice pH is 4.2, lemon juice pH is 0.2). Alkaline or basic water has a pH of greater than 7.0 (eg., bleach pH is 12.7, ammonia pH is 11.3, baking soda pH is 8.3). Metabolites are any substance produced in or by living organisms by biological processes and derived from a pesticide.

TRICHLORFON

Trichlorfon (trade name Dylox 80) is classified by the U.S.E.P.A. as a General Use Pesticide (GUP). It is in toxicity class II, which is moderately toxic. It is in the organophosphate chemical class (containing phosphorous to control insects) bears the word "warning", and is used to control such insects as crickets, silverfish, flies, fleas and ticks.

The toxicological effects of trichlorfon are as follows: trichlorfon is a moderately toxic chemical when ingested or through dermal absorption. As with all organophosphates, trichlorfon is readily absorbed through the skin. Skin sensitivity, such as allergic reactions can result from dermal exposure. Trichlorfon decreases activity of an enzyme (cholinesterase) which is necessary for normal function of the nervous system. Symptoms of acute exposure include headaches, nervousness, blurred vision, weakness, nausea, cramps, loss of muscle control and reflexes, convulsions or coma. Repeated or prolonged exposure to organophosphates may result in the same effects as acute exposure. Other effects reported in workers repeatedly exposed include impaired memory and concentration, disorientation, severe depression, irritability, confusion, headaches, speech difficulties, delayed reaction times, nightmares, sleepwalking, drowsiness, and insomnia. It has also been reported that one may contract influenza-like conditions with headache, nausea, weakness, loss of appetite, and malaise. In a test study where dogs were administered 45 mg/kg/per day for three months, the serum level of the enzyme chlorinesterase was reduced to 60% of normal levels.

Trichlorfon is also suspected of being responsible for negative reproductive effects. An increased number of embryonic deaths, a decreased number of live fetuses, and an increased number of fetal abnormalities were observed from studies of rats given a single dose of 80 mg/kg body weight, by stomach tube, on day 13 of pregnancy.

Trichlorfon studies have provided evidence that it is a possible carcinogen. One study suggests that oral doses of 37.5 to 75 mg/kg/per day of trichlorfon contribute to the production of tumors in rats. Benign tumors called 'papillomas' developed in the lining of the forward portion of the stomach when trichlorfon was administered to rats orally or toxic subcutaneously. Rats that survived for six months had varying degrees of liver damage. Trichlorfon has been found to be primarily toxic through its effect on the nervous system by inhibiting the enzyme cholinesterase. Other organs that this chemical targets include the lungs, liver and bone marrow (blood-forming tissue).

The ecological effects of trichlorfon are as follows: trichlorfon is moderately to highly toxic to birds, causing regurgitation, imbalance, trembling, slowness, lack of movement, and wing-beat convulsions. Signs of poisoning occur from as little time as ten minutes from exposure, and death usually occurs within thirty minutes to 3 hours from the time of treatment. Regarding aquatic and marine life, trichlorfon is highly toxic to many aquatic species, including stoneflies, crayfish, and several freshwater fish species. Toxicity in this area of marine life can be effected by many other factors, such as water temperature, pH levels, and water hardness, which may have a different effect on various species. In general, toxicity increased with higher temperature and higher pH.

The physical properties of trichlorfon are that of a pale, clear, white or yellow crystalline solid with an ethyl ether odor. Trichlorfon is solid at room temperature. Its water solubility is 120,000 mg/L @ 20 C. It tends to degrade rapidly in alkaline pond water (pH 8.5). Approximately 99% of applied trichlorfon is broken down within two hours. The major breakdown product of trichlorfon is dichlorvos (DDVP). This insecticide was shown to persist at detectable levels for 526 days in water 20 C.

CARBARYL

Carbaryl (trade names Tercyl, Sevin 803, Rayvon) is a General Use Pesticide (GUP). However, various formulations vary widely in toxicity. For example, it is rated by the U.S.E.P.A. as a toxicity class I- being highly toxic for Tercyl. It is rated as toxicity class II- being moderately toxic for Sevin 803. It is rated as toxicity class III or slightly toxic as to its other products. The formulation known as Sevin 803 is applicable as to the Seven Springs golf course.

Carbaryl is a wide-spectrum chemical of the carbamate class, an insecticide which controls over 100 species of insects on citrus fruits, cotton, forests, lawns, nuts, ornamentals, shade trees, and other crops, as well as poultry, livestock and pets. Carbaryl works by ingestion through the stomach or absorption through direct contact. It is available as bait, dust form, wettable powder, and granules.

The toxicological effects of carbaryl are as follows: carbaryl is moderately to very toxic. It produces adverse effects in humans through skin contact, inhalation or ingestion. The symptoms of acute toxicity are typical of other carbamates. Direct contact with the skin or eyes with moderate levels of this pesticide can cause burning. Inhalation or ingestion can be toxic to the nervous and respiratory systems and can result in nausea, cramps, diarrhea, and excessive salivation. High doses can also cause sweating, blurred vision, lack of coordination and convulsions. The only documented fatality from carbaryl has been through ingestion.

As to possible carcinogenic effects, carbaryl has not been shown to cause tumors in long-term as well as lifetime studies of mice and rats. Rats were administered high daily doses of this pesticide for two years and mice for 18 months with no sign of carcinogenicity. This demonstrates that it would be unlikely to cause cancer in humans. However, ingestion of carbaryl does affect the lungs and liver. Inhalation will also affect the lungs. Nerve damage has been detected in studies of rats and pigs who were administered high doses for 50 days. A two year study with rats revealed no effects at or below a dose of 10 mg/kg/per day.

The ecological effects of carbaryl are as follows: while carbaryl has been found to be practically nontoxic to wild bird species, it is moderately toxic to aquatic organisms such as rainbow trout and bluegill. Carbaryl can accumulate in catfish, crawfish and snails, as well as in algae and duckweed. Residue levels in fish were 140 times greater

than the concentration of carbaryl in water. Carbaryl has been found to be lethal to many non-target insects including bees and other beneficial insects.

As to its environmental effects, carbaryl has low persistence in soil. Degradation of carbaryl in the soil is mostly due to sunlight and bacterial action. It is bound by organic matter and can be transported in soil runoff. Carbaryl has a half-life of 7 to 14 days in sandy loam soil and 14 to 28 days in clay loam soil. Carbaryl has been detected in groundwater in three separate cases in California. In surface water, carbaryl is broken down by bacteria and through hydrolysis. Evaporation is very slow. Carbaryl has a half-life of approximately 10 days at a neutral pH. The half-life varies greatly depending upon the water's acidity. Its water solubility is 40 mg/L @ 30 C. The physical appearance of carbaryl is that of a solid that varies from colorlessness to white or gray, depending upon its purity. The crystals are odorless. Carbaryl is stable as to heat, light, and acids. It is not stable under alkaline conditions. It is noncorrosive to metals, packaging materials and application equipment.

2,4-D

2,4-D (commercial name Plantgard) is a General Use Pesticide (GUP) in the United States. The diethylamine salt is classified by the U.S.E.P.A. as toxicity class III- being slightly toxic when taken orally, but is classified as toxicity class I- being highly toxic when exposed to the eyes. It bears the signal word "danger-poison" because 2,4-D can produce serious skin and eye irritation and has done so to agricultural workers. It is in the phenoxy compound chemical class.

As to the background of 2,4-D, it has many forms and derivatives, including salts and an acid form. Its acid form, for example, is a chlorinated phenoxy compound which functions as a herbicide and is used to control many types of broad leaf weeds. It is used in cultivated agriculture, in pasture and range land applications, forest management, home, garden, and to control aquatic vegetation. Perhaps 2,4-D's most notorious and extensive use was connected with the product "Agent Orange" during the Vietnam War, which was composed of about 50% 2,4-D. However, much of the controversy surrounding the use of Agent Orange was a result of the contaminant dioxin, which was a component of this defoliant.

The toxicological effects of 2,4-D are as follows: its acid form is slightly to moderately toxic. In humans, the prolonged effects of breathing 2,4-D includes coughing, burning, dizziness, and temporary loss of muscle coordination. Other symptoms of poisoning can be fatigue and weakness with possible nausea. On rare occasions following high levels of exposure, there can be inflammation of the nerve endings with muscular effects. In an experiment, dogs who were fed lower amounts in their food for two years died, probably as a result of the fact that dogs do not excrete organic acids efficiently. In contrast, a human who was given a total of 16.3 g in 32 days therapeutically, lapsed into a stupor and showed signs of uncoordination, weak reflexes, and a loss of bladder control.

As to carcinogenic effects, 2,4-D fed to rats for two years caused an increase in malignant tumors. Female mice given a single injection of 2,4-D developed cancer. Another rodent study showed a low incidence of brain tumors at moderate exposure levels (45 mg/kg/per day) over a lifetime. However, these studies have raised questions about the carcinogenic potential for 2,4-D in humans. These studies suggest an association between 2,4-D exposure to humans and cancer. An increased incidence of non-Hodgkin's lymphoma was found among Kansas and Nebraska farm populations associated with the spraying of 2,4-D. There is also reported liver dysfunction associated with long-term exposure. 2,4-D is readily absorbed through the skin and lungs.

The ecological effects of 2,4-D are as follows: It is slightly toxic to wild fowl and slightly to moderately toxic in birds. Some formulations of 2,4-D are highly toxic to fish. 2,4-D has a low soil persistence. The half-life in soil is less than seven days. However, despite its short half-life in soil and aquatic environments, the compound has been detected in groundwater supplies in at least five states and Canada. Low concentrations have also been detected in surface water throughout the United States. In aquatic environments, microorganisms readily degrade 2,4-D. Rates of breakdown increase with increased nutrients, sediment load, and dissolved organic carbon. In under-oxygenated conditions, the half-life is one to several weeks. The water solubility of 2,4-D is 900 mg/L @ 25 C (for acid formulation).

MATALAXYL

Metalaxyl (trade name Subdue) is a slightly toxic compound classified by the U.S.E.P.A. as toxicity class III. It must bear the warning "caution". It is a General Use Pesticide (GUP) and is a member of the benzenoid chemical class. Metalaxyl is a systematic, benzenoid fungicide used as a spray for both tropical and subtropical crops, as a soil treatment for control of soil-borne pathogens, and as a seed treatment to control mildew. Metalaxyl may be used on food crops, including tobacco, ornamentals, conifer and turf applications.

The toxicological effects of metalaxyl are as follows: studies have shown slight toxicity by ingestion and dermal application. A 90-day study of rats exposed to 0.1 to 2.5 mg/kg/per day showed some cellular enlargement of the liver at the highest dose. In a similar study with dogs fed diets of approximately 0.04 to 0.8 mg/kg/per day for 6 months, the dogs were adversely affected by the highest dose, which included increased blood alkaline phosphatase and increased liver-to-brain weight ratio. It has been shown that the liver is the primary target of metalaxyl in animal systems. Available studies on whether metalaxyl is a carcinogen have been inconclusive.

The ecological effects of metalaxyl are as follows: it has been shown to be practically nontoxic to birds and freshwater fish. However, metalaxyl has a tendency to accumulate in the edible portion of freshwater fish. Metalaxyl did not accumulate beyond seven times the background concentration and is eliminated quickly when fish are placed in fresh, metalaxyl-free water. Metalaxyl has a half-life of 7 to 170 days in a soil environment. This long persistence along with it also being highly soluble in water poses

a direct threat to groundwater contamination. It readily leaches into sandy soils. In a large-scale national survey, metalaxyl was detected in the groundwater of several states. At pH levels of 5 to 9 and temperatures of 20 to 30 degrees Celcius, the half-life in water was greater than four weeks. Although exposure to sunlight reduced the half-life to one week. The water solubility of metalaxyl is 7100 mg/L @ 20 C.

LEGAL ANALYSIS- DO ENVIRONMENTAL PROTECTION STATUTES PRECLUDE THE DEVELOPMENT OF THE PROPOSED GOLF COURSE AT SEVEN SPRINGS?

Under the law, "pesticides" is a broad-based term which refers to herbicides, insecticides, rodenticides, fungicides, disinfectants, plant growth regulators, and any other chemicals used for pest or plant control.

The New York State Department of Health has promulgated regulations specifically designed to prevent the pollution of the Byram Lake Reservoir and to protect vital supplies of water. Pursuant to 10 NYCRR Sec. 155.10, "no ... polluted liquid of any kind ... shall be discharged or allowed to flow into the ... reservoir or any watercourse." Section 155.10 (d) (2). It also provides that "In addition to observing the foregoing requirements, all persons living on or visiting the watershed shall refrain from any act, though not heretofore specified, which may result in contamination of any portion of the water supply." Section 155.10 (f). This statute clearly indicates that the Department of Health regulations absolutely prohibit the discharge of any contaminated or toxic liquid into Byram Lake. Therefore, if the Linear Absorption System as devised by the Seven Springs developers does not or is unlikely to work, then the golf course development would be prohibited under the statute.

In addition, New York Environmental Conservation Law (ECL) Sec. 17-0505 specifically prohibits "the making or use of an outlet or point source discharging into the waters of the State, and the operation or construction of disposal systems, without a valid SPDES (State Pollution Discharge Elimination System) permit ...". See also ECL Sec. 17-0701. The term "point source" is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well ... from which pollutants are or may be discharged." ECL Sec. 17-0105 (10). This definition is identical to the one in the Federal Clean Water Act under Sec. 402, which defines the meaning of a "point source". The term "treatment works" is defined as "any plant, disposal field ... constructed drainage ditch or surface water intercepting ditch ... or other works ... installed for the purpose of treating, neutralizing, stabilizing or disposing of sewage, industrial waste or other wastes." ECL Sec. 17-0105 (9).

Our analysis in the previous section above, regarding the developer's proposed Linear Absorption System, without question constitutes a "point source", "disposal system", or "treatment works" within the meaning of the statutory definitions. As a result, they require a SPDES permit from the New York State Department of Environmental Conservation (DEC).

The DEC is mandated under law to issue a public notice of SPDES permit applications and to hold a public hearing if "a significant public interest" is at stake. See ECL Sec. 17-0805 and 6 NYCRR Sec. 754.6 (b). At such a public hearing pursuant to the SPDES permit application under the auspices of the DEC, the Village of Mount Kisco may vigorously cross-examine the Seven Springs developers and other witnesses as to the technical issues involved, particularly with reference to the functioning and adequacy of the Linear Absorption System. However, local statutes are also affected with regard to the three towns which have jurisdiction over the Seven Springs property.

The project is under the jurisdiction of both the Bedford Planning and Zoning Boards. Under Bedford Town Code section 125-1 (J), the purpose of the Bedford Zoning Law is "to prevent the pollution of watercourses and wetlands, [and] to safeguard the water supply, both surface and groundwater." The Bedford Planning Board is under a duty to "take into consideration the public health" as well as the project's "impact on the natural and man-made environment." Bedford Code Sec. 125-87 (G). In reviewing a steep slope application, the Planning Board must find that "the proposed activity will preserve and protect existing waterways, flood plains and wetlands." Bedford Code Sec. 102-4.

Furthermore, the Seven Springs project requires permits from the Bedford Wetlands Control Commission. The Bedford wetlands law states that "maintaining the potable water supply" as one of the benefits of wetlands. Bedford Code Sec. 122-2 (10). The Wetlands Commission must take into account the effect of the proposed activity in contrast to the benefit derived from wetlands, including the maintenance of drinking water supplies. Bedford Code Sec. 122-10 (A) (4) (f). Prior to the granting of a permit, the Wetlands Commission must find that the proposed project "is consistent with the policy of this chapter to preserve ... the benefits [wetlands] provide," Bedford Code Sec. 122-10 (B) (1), and that the activity "is compatible with the public health and welfare," Sec. 122-10 (B).

The borders of the project also encompass the Town of North Castle, which has its own zoning code. One of the stated purposes of their Zoning Code is "to prevent the pollution of watercourses and wetlands." North Castle Code Sec. 213-1 (I). Prior to granting a special use permit, its Town Board must reach a finding "that the proposed special permit will not have a significant adverse effect on the environment." North Castle Code Sec. 213-30. Standards of performance by a developer must ensure to "prevent the discharge of untreated or insufficiently treated wastes into any watercourse." North Castle Code Sec. 213-49. Special attention must be paid by the Planning Board to the effect the project has upon the natural resources of the area. North Castle Code Sec. A216-15 (E). Its Town Code specifically states that it is "the public policy of the Town of North Castle that the public interest requires the preservation and protection of streams, lakes, ponds, swamps, marshes and other watercourses in the Town of North Castle ... to prevent the contamination and pollution of same, all for the health, safety and welfare of the public." Sec. 206-2.

One of the main purposes of the North Castle wetlands statute is for "protecting subsurface water resources, watersheds and groundwater recharge systems ..." North Castle Code Sec. 209-3 (A). Their town code has found that "loss of wetlands can cause ... diminution of water supply for drinking ... and may pose a threat to the health, safety and welfare of the people of North Castle and the surrounding region." (Emphasis added). North Castle Code Sec. 209-3 (A) (5). In order to act upon a wetlands permit, their Planning Board must consider "the character and degree of injury to, or interference with ... health", Sec. 209-6 (A) (d), and "the effect of the proposed activity with reference to the protection or enhancement of the several functions of the wetlands, water bodies, adjacent areas or natural drainage systems and the benefits they provide ..." Sec. 209-6 (A) (f).

The Seven Springs project is also partially located within the Town of New Castle. Their code likewise provides that the subdivision of land may only be accomplished if "it can be used safely for building purposes without dangers to health." New Castle Code Sec. 113-23 (A).The wetlands law of New Castle states that "the preservation and maintenance of wetlands, water bodies and water courses in an undisturbed and natural condition constitute important ... assets necessary to promote the health, safety and general welfare of present and future residents of the town and of downstream drainage areas." New Castle Code Sec. 137-1 (A) (2). In order to grant a wetlands permit, the Town must consider the previous declaration. Sec. 137-6 (A) (1).

New Castle must consider whether the developer's activities "will have a deleterious effect on the health, safety or welfare of the residents of New Castle or its neighboring communities," (emphasis added) Sec. 137-6 (A) (4), and whether it "will have adequate safeguards employing the best available technology to protect the potable fresh surface and groundwater supplies of the town from drought, pollution, overuse and other forms of misuse." Sec. 137-6 (A) (6). Most germane to our discussion is that the statute squarely places the burden of proof upon the developer, by mandating that "the applicant shall have the burden of demonstrating that the proposed activity is not adverse to the health, safety and welfare of the residents of New Castle or its neighboring communities" (emphasis added) Sec. 137-6 (B).

Clearly, the statutes of these three municipalities mandate that full consideration must be given to the concerns of the Mount Kisco community and the threat to their sole supply of drinking water- the Byram Lake Reservoir. The statutes also provide proper legal justification for blocking the proposed Seven Springs golf course project by withholding permits necessary for its construction.

CONCLUSION

The question of whether to golf or to drink is not debatable as far as the evidence that has been presented herein. The Linear Absorption System proposed by the Seven Springs developer is a fallible system on paper and will be fallible in practice. This is true because the Byram Lake Reservoir and the community it serves requires a system that will perform without fail to eliminate pesticides from stormwater runoff, and also prevent pesticide contamination from leaching into groundwater as well as reaching any aquifer which may lead to Byram Lake.

The Linear Absorption System may be a state of the art system, but it is also an untested and untried technology. There is no standard by which to measure its effectiveness, since it has never been applied on so wide a scale, and has never been used to filter pesticide-contaminated water throughout an entire golf course. Stated in the simplest of terms, there are too many ways by which the contaminant can evade the carbon treatment chambers, such as through a storm of such intensity that the swales are overwhelmed and the water runoff bypasses the filtration system. In addition, if the filters are clogged with debris or if the activated carbon needs to be changed but hasn't been through human error, the system will fail. Another possible situation is where the contaminant leaches into groundwater or an aquifer leading to the reservoir.

Pursuant to the SEQRA process, all reasonable alternatives must be considered, including terminating the proposed project, especially if the risk involved outweighs the purported benefit which may be realized by completion of the project. Alternative locations may also be considered. Here, the risk to the drinking water supply of an entire community outweighs any possible benefit that can be derived from a golf course adjacent to Byram Lake.

We have considered the scientific evidence gleaned from the toxicology studies of several of the chemicals proposed for the project. While some are carcinogens and others aren't, all have a detrimental effect upon human organs and/or life support systems if ingested or exposed to the skin. The likelihood of these toxic chemicals reaching Byram Lake is a real possibility, which will lead to ingestion of these pesticides. They also have an adverse effect upon many forms of wildlife within the watershed.

Perhaps all of the technical and legal points stated above can best be summarized with a quote from Hon. Mark Farrell, the Mayor of Mount Kisco, who testified before the Bedford Planning Board and effectively stated Mount Kisco's position and strong opposition to the pesticide threat to the Byram Lake Reservoir from the Seven Springs Golf Course development as follows:

"Not in my office. Not in my ice tea. Not in my fish tank, dog dish. bathtub, water glass, oatmeal or soup. We have an obligation to our community to be vigilant and vigorous in the protection of our watershed and water supply. We are looking to you to be equally vigilant and vigorous, and trust that you will be."

For all of the reasons heretofore given, the Seven Springs proposal and application should be rejected.

Bibliography

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