Memorandum of Justification Concerning Determination on Health, Environmental, and Legal Aspects of Coca Eradication in Colombia

The Kenneth M. Ludden Foreign Operations, Export Financing and Related Programs Appropriations Act, 2002 (P.L. 107-115) ("FOAA") lays out conditions under which assistance using funds appropriated under the FOAA may be made available for the purchase of chemicals for the aerial eradication of coca in Colombia. The legislation's requirements and the Administration's summarized responses are below.

1. That the coca spraying is being carried out in accordance with regulatory controls required by the Environmental Protection Agency as labeled for use in the United States:

Tab 2 of the report illustrates that the glyphosate formulation used to spray coca in Colombia is used in accordance with the EPA label instructions for non-agricultural use. In Tab 3 of the report, a letter from EPA Assistant Administrator Johnson EPA confirms that application rates are within the parameters listed on U.S. glyphosate labels.

2. That the coca spraying is in accordance with Colombian laws:

Tab 6 of the report includes a letter from the Ministry of Foreign Affairs of the Government of Colombia confirming that the spraying is being carried out in accordance with each and every applicable Colombian law.

3. That the chemicals used in the coca spraying, in the manner in which they are applied, do not pose unreasonable risks or adverse effects to humans or the environment:

USDA'S assessment (Tab 5) opines that the spray program poses no unreasonable health or environmental risks. Upon examining the chemicals that used in Colombia, EPA notes the potential for acute eye toxicity, due to an inert ingredient in the particular glyphosate formulation used by the program. EPA's response points out that the Department did not provide to the EPA the results of INL-commissioned toxicological tests performed on the spray mixture, as promised in a briefing (note: these tests had not been completed at the time EPA submitted its response). EPA replies that because of its inability to review such tests, it is unable to evaluate the toxicity of the spray mixture that we are using in Colombia. In the absence of these testing results, EPA recommended that the Department consider using an alternative glyphosate product with lower potential for acute toxicity.

Until a lower toxicity glyphosate formulation could be made available for use in Colombia, we have continued to spray with the higher toxicity glyphosate product. According to the EPA report, the risks of eye damage from the current formulation are limited principally to the handlers and mixers of the concentrated formulation as opposed to the general public. The concentrated glyphosate formulation is diluted when mixed with water for use in the spray program; approximately 75 percent of the end use product is water. Furthermore, several safeguards are in place to minimize human exposure to the spray mixture. Pilots are carefully selected and trained and are instructed to avoid spraying near people, homes, or occupied buildings. The permissible spray parameters of flight speed, aircraft height, and wind conditions are rigidly monitored and complied with. The Embassy is working with the GOC to warn local citizens in areas where we spray (through radio and newspaper advisory messages) to avoid the spray mist and inform them of precautions to take in case of possible incidental contact with the spray mixture.

The Department now has the results of the eye irritation test of the spray mixture that would have bolstered EPA's analysis, but we did not receive these results in final form until after receipt of EPA's response. This test determined that the spray mixture currently used in Colombia would be rated Category III on EPA's scale of I-IV, with I being the most toxic. Congress is aware that this testing is underway and as we have notified in the addendum to the report, we will provide the testing results as soon as all of the testing is completed.

In addition, INL now has an alternative glyphosate product with lower potential for acute toxicity available for use in Colombia. This formulation, registered in July 2002, is less toxic to the eyes because it uses a different inert ingredient and is also known to have as low or lower toxicity ratings in all other categories, as well. Although this alternative formulation has only recently been approved in Colombia, it has been extensively tested and widely used elsewhere, and is registered for non-agricultural use in the U.S. by the EPA. Because this alternative formulation addresses EPA's recommendation that the Department switch to a less toxic formulation, the Department plans to switch to it for use in Colombia as soon as it can be manufactured, purchased, and delivered. INL expects to place an order for the new product early in September 2002. The Department's notification to Congress will indicate our intention to make this switch, in response to EPA's concerns.

Based on the above information, we do not believe that EPA's reservation about the risk of eye irritation rises to the threshold of "unreasonable risks" or "adverse effects" to humans or the environment identified in the statute.

4. That procedures are available to evaluate claims of local citizens that their crops were damaged by such aerial coca fumigation, and to provide fair compensation for meritorious claims:

Tab 7 of the report outlines the procedures to evaluate claims of damage to legal crops from aerial eradication and to provide fair compensation for meritorious claims. This includes an English language version of the Colombian National Drug Council's Resolution 0017, which formalized the new process. Complaints are being received, logged, investigated, verified, and compensation is being allocated to cases with merit. Thus far only two complaints have been deemed valid; compensation in these cases is pending and will be determined through negotiation with the claimant.

5. That six months after FY 2002 FOAA enactment, funding from this act may not be made available for chemicals for coca eradication 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:

Tab 8 of the report illustrates that alternative development programs are being carried out in all but one of the departments where we have sprayed in 2002. In this one department where a small amount of spraying took place in February 2002, an alternative development program agreement has been negotiated and a contract for the work signed. The GOC has agreed that no further spraying will take place in that department until an alternative development program is actually being implemented.