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$215,000,000 civil suit against Terminix in New York
“2 dead, 3 injured, 3 years homeless.”
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"The June 19 article said the effects of pesticides in schools include ‘headache, nausea, vomiting, flu-like symptoms, rashes, respiratory irritation and behavioral disturbances.’ What the article should have said is that these reactions would result from pesticide misuse."
- Shawn Duffy, "guest essayist"
June 27, 2000, Rochester Democrat & Chronicle
According to the Rochester Democrat & Chronicle, "Duffy, of Rochester, is a branch manager with the Terminix International Co., and a board member of the New York State Pest Management Association. However, the views here are strictly his own." Mr. Duffy was the "branch manager" who was in the Trimper home on March 6, 1997, to rectify the termite infestation. Despite the Trimper's ailments, Duffy's solution was to add more pesticide.
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April 2, 1999, in New York State Supreme Court, County of Schenectady, Mr. Bruce Trimper and Mrs. Karen Trimper, individually and as parents and legal guardians of Kyle Trimper, filed a 93-count lawsuit against Terminix International of Memphis, Tennessee. Summons #990648 was issued by the state of New York on behalf of plaintiff’s attorney, Harris Beach & Wilcox of Syracuse & Albany, New York.
This lawsuit was featured in an article posted January 25, 2000 at CNN.com, “Pesticide on trial with EPA.” If you read nothing else, please read the article and think about a little three-year old boy (now six) and the suffering he and his parents have endured. If you are a parent, how would you feel to have to watch helplessly while your child is suffering? What would you do? What would any normal person in this situation think of a company that proclaims to “honor God in all they do,” especially when the company has filed a motion to dismiss the lawsuit, arguing that the contract signed by the Trimpers voids their claims -- not on whether or not the case has any merit but on a legal technicality! Perhaps this case has no merit (which I don’t believe for one second), but exposing the facts of this case are in the best interests of public safety. This case needs to be heard and argued in a public court of law, and the outcome needs to be made public, not hidden through binding arbitration.
Additionally, the State of New York’s Department of Environmental Conservation (DEC) has a web site which lists consent orders, hearings, mediations, etc.; and yet, the signed Consent Order with Terminix, referenced below, has never been posted on DEC’s own web site. Is this a cover-up by the DEC? Who benefits from this public agency not making public information available to the public?
Petition to Intervene, Case No. R4-1977-97-05. February 9, 1999 -- The New York State Department of Environmental Conservation ("Department") Region 4 Staff ("Staff") commenced the instant civil administrative enforcement proceeding against The Terminix International Company, L.P. ("Respondent"), for alleged violations of Article 33 of the New York State Environmental Conservation Law ("ECL"), and 6 NYCRR Part 325 et seq., related to applications of pesticide at a residence....
Order on Consent, Case No. R4-1977-97-05. On August 17, 2000, Terminix finally conceded to the state of New York's mandate to clean up their mess at 1033 Day Road, Rotterdam, New York, as a result of two pesticide misapplications in April and August 1996. Dursban, the product misapplied, has since (June 8, 2000) been banned by the EPA from use during residential pesticide application because of its toxicity. In addition to the cost of the remediation, the State of New York felt it necessary to fine the company $11,000. The scale of remediation should indicate the severity of the offense. It's assumed, upon proper completion, the Trimper family will be able to return to their home, after nearly three years of seeking shelter elsewhere. “No admission of liability or guilt...”
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For additional information on this case, the June 12, 1999, issue of Pesticide Report, written by Sue Darcey, features the Trimper v. Terminix case and includes:
- Dursban TC inerts Benzene, Trimethylbenzene, Suspects in Boy’s Illness Following Termiticide Mishap.
- Dursban TC Reverse Engineered by New York Department of Health
- New York DEC Finds Fault with Termiticide Application
- Reverse Engineering Finds Host of Toxic Compounds
- At Least 122 Incidents Involving Dursban TC, Equity Found in FIFRA 6(a)(2) Database
- EPA Inerts Policy: Still No Formal Response to Environmentalists/State AG Petition
- Terminix Has Been a Target of Enforcement Actions in Several States
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"Terminix and Dow Chemical have ruined life, as we knew it. They have deprived our son of a normal childhood. In an altruistic act, I am committed and will succeed in leaving a different kind of indelible mark on both of them!"
Read by Tina Williams at the NCAMP conference in New York City, April 8, 2000, on behalf of Mr. Bruce Trimper.
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Dear Mr. Leslie:
At 2:34 a.m. on May 25, 2001, I sent the following e-mail letter to dpaeweb@gw.dec.state.ny.us, DPOCE\NNE@gw.dec.state.ny.us, gov.pataki@chamber.state.ny.us, BRUNO@SENATE.STATE.NY.US, and speaker@assembly.state.ny.us.
On May 17, 2001, I sent the following letter to DPOCONNE@gw.dec.state.ny.us:
Kudos to New York DEC for taking action against the Terminix plague!
It is my understanding your office handles Consent Orders for the State of New York Department of Environmental Conservation. I've posted the NYDEC Consent Order with Terminix on my web site at http://www.syix.com/emu/html/tvt.html#ConsentOrder
Please provide me with the current status so I may update the information on the site.
To date, I have not received a response to this letter, nor did I receive a response to a previous inquiry (as I've posted on the web site at http://www.syix.com/emu/html/ny.html).
Is it typical of public employees working for public agencies in New York to not respond to inquiries from the public; or is it DEC's policy to not respond to just me?
Also, why is the consent order, which is posted on my web site, not posted on DEC's web site? Based on the nonresponsiveness and selectiveness of information provided to the public, whose interests is the DEC protecting???
At 6:32 a.m. on May 25, 2001, I received the following e-mail from Mr. O’Connell:
The Office of Hearings and Mediation Services (OHMS) does not handle consent orders for the NYS Department of Environmental Conservation, and consent orders are not posted on the OHMS webpage.
If you have any questions about the Terminix Consent Order (R4-1977-97-05, dated August 17, 2000), you should contact the DEC Region 4 attorney, Robert Leslie. His telephone number is 518-357-2048. His e-mail address is rpleslie@gw.dec.state.ny.us.
Then, on May 29, 2001, I received the following from Mr. O’Connell, which he also sent to speaker@assembly.state.ny.us, gov.patake@chamber.state.ny.us, dpaeweb.main.nysdec@gw.dec.state.ny.us, and BRUNO@SENATE.STATE.NY.US :
Attached is a copy of my response to your May 17, 2001 e-mail message.
I try to respond to all e-mail messages within 5 business days as required by 6NYCRR§616.5(b).
I have several questions; and as Mr. O'Connell suggested, I am now contacting you in hopes of receiving answers. (I am also sending cc's of this letter to the previous cc's inasmuch as they may also be interested in any follow up, and I do not want them to be left with the mistaken impression I was content with the response from Mr. O'Connell.)
- Will you please provide me with the current status of Consent Order R4-1977-97-05, dated August 17, 2000?
- Has the Consent Order been met to the DEC's satisfaction?
- Is it typical of public employees working for public agencies in New York to not respond to inquiries from the public; or is it DEC's policy to not respond to just me? While it is possible Mr. O'Connell would have answered my letter "within 5 business days as required by 6 NYCRR §616.5(b)," I sincerely doubt he would have responded if not for the cc's. After all, my February 27, 2000, letter to stevenso@consumer.state.ny.us went unanswered as did my October 18, 2000 and November 10, 2000 letters to Frank Lapinski, DEC investigator. Or is only Mr. O'Connell bound by 6NYCRR §616.5(b)?
- Mr. O'Connell stated "consent orders are not posted on the OHMS webpage;" however, my question was, "why is the consent order, which is posted on my web site, not posted on DEC's web site?" Perhaps clarification is in order. Why is there NO information about the consent order posted on DEC's web site? After all, information about other consent orders ARE posted; i.e., http://www.dec.state.ny.us/website/press/pressrel/99-113.html and http://www.dec.state.ny.us/website/press/pressrel/2000-117.html.
- Why is there no information posted on DEC's web site about the two Terminix employees separately found guilty of falsifying records when others found guilty are posted; i.e., http://www.dec.state.ny.us/website/press/pressrel/2000-76.html?
- From my perspective, it appears the DEC has an agreement with Terminix to not post anything pertaining to Terminix. Is this true?
- How many more people must be defrauded or otherwise harmed by Terminix before the State of New York follows the lead of the State of Connecticut in revoking Terminix's licenses to operate in the state?
- The State of New York DEC is well aware of Terminix's corrupt business practices, the harm Terminix inflicts on its customers, and Terminix's false advertising; and, yet, the DEC continues to license Terminix to operate in New York. Is the State of New York waiting until they are a named co-defendant in a civil suit against Terminix before taking appropriate action?
- Based on the nonresponsiveness and selectiveness of information provided to the public, whose interests is the DEC protecting???
- How many other public inquirers are sent to you, a department attorney, for answers? If it's just me, why? Is the DEC afraid of the truth being made public, is the DEC in collusion with Terminix, is the DEC afraid of Terminix, or ? ?
I look forward to your response to each of the above questions and in accordance with 6 NYCRR §616.5(b) -- if it applies to you.
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Dear Ms. Virga,
Thank you for the E-mail that you sent to me recently. I have asked staff to update me on the status of the Order that you referenced. To date, Terminix has met all of its obligations under the Order.
Your E-mail also referenced the Department's regulations with regard to access to records. The regulatory provision that you have cited indicates that a response to a request which reasonably describes the record or records sought shall be made within five business days of the receipt of the request. Pursuant to this provision, Department staff endeavor to produce records requested within five days of a request. In the event that staff are not able to produce the requested records within five days, staff furnish a written acknowledgment of the receipt of the request and a statement of the approximate date when the request will be granted or denied. This procedure, follows the State's Freedom of Information Law (FOIL). The State's FOIL provisions do not address general inquires such as those posed in your E-mails to the Administrative Law Judge and myself. Stated another way, since your E-mail does not request access to records, the regulation that you cited does not apply.
The Department does not post Consent Orders on the Department's Web page. In some instances, the Department does issue a press release concerning selected enforcement actions. The Department does not issue press releases for every single enforcement case settled. To do so would require an inordinate amount of staff time, and would take away from time spent by staff achieving such successes.
You have asked how many inquires I receive as a Department attorney each year. Each year, I receive hundreds of inquires from the public, department staff, and other governmental officials. I do not keep a running total, nor a log of questions posed to me. I suspect that you meant to limit your question to inquire of me how many inquires I receive about the Terminix matter each year. Your E-mail is the only recent inquiry that I can recall.
The balance of the questions that you have posed, appear to be rhetorical in nature. DEC has no agreement with Terminix regarding information posted on the DEC Web page.
Thank you for your correspondence. Please feel free to contact me again if you need further information.
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As you can see by the e-mail exchanges I am forwarding to you, I wrote to Mr. Trimper after I received your e-mail letter to me to congratulate him for successfully getting Terminix to clean up their mess. It's apparent from his response that Mr. Trimper does not feel the matter is closed and you do. Obviously, there's a discrepancy between what you told me and what Mr. Trimper told me.
The questions I have now are:
Is it all right with the DEC for Terminix to leave the Trimper's yard looking like a war zone and to install an air-filtration system that has no filters available?
How can there be a discrepancy between DEC's conclusions and Mr. Trimper's conclusions?
How can this happen?
Don't the Trimper's have party status to the enforcement action?
Perhaps you should get in touch with Mr. Trimper's attorney and work it out?
I tend to agree with Mr. Trimper that the matter is not satisfactorily concluded. I hope you agree and take appropriate action to assure it is. At this point, if I were to quote you and post the DEC's stance and post Mr. Trimper's response, I don't think it would reflect too well on the DEC.
I would be interested in your perspective and in any conclusion to this issue. For now, I will hold off posting anything. (I like happy endings.)
Sincerely,
Carla M. Virga
____________________________________________
Subj: (no subject)
Date: 6/24/01 9:28:41 AM Eastern Daylight Time
From: Trimper [personal e-mail address withheld]
To: emu@syix.com
Good Morning Carla,
I apologize for not getting back to you sooner. I'm learning the hard way that there are only twenty-four hours in one day.
Thank you for inquiring about our matter with Terminix and NYSDEC. I truly think you provide an invaluable service to society at large, via your website!
The Consent Order referenced, covered the removal of the source and ATTEMPTED to place a belt and suspenders approach on assuring the chemical odor would not return. Well, the source was removed to specs, but the latter is in limbo. After the company failed to deliver the case of air filters needed to replace on a monthly basis, I went to purchase them myself. Having run the gamut of home improvement stores, I called the installer. It appears that size filter is no longer produced or available. Par for the course with Terminix??? Terminix' project manager has been looking now for two months, to apparently no avail. So, I guess how I interpret the Order's completion, and the way the DEC lawyer sees it differs, heh?
Once the snow melted we contacted Terminix to let them know the front lawn looked like a war zone. They promised to come back and fix it without the use of pesticides or herbicides. Last weekend my wife started the task! THIS COMPANY DOES NOTHING TO RECTIFY THEIR PROBLEMS UNLESS THERE ARE CONSEQUENCES INVOLVED. But, I think in the not so distant future, something beyond their control, will change that mentality.
Carla, I encourage you to remain positive and proactive with state and federal agencies. At the same time, also be realistic that our situation was the exception, not the rule. As long as the governmental mentality of "compliance not enforcement" looms in this great state of mine, I'm afraid that other New Yorkers will fall prey! Awareness and accountability, both corporate and governmental, are the key! To you I'm grateful for this.
Take care of yourself and enjoy the summer!
Bruce Trimper
____________________________________________
Subj: NY DEC Consent Order
Date: 6/12/01 4:11:06 AM Eastern Daylight Time
From: emu@syix.com (Carla Virga)
To: Trimper [personal e-mail address withheld]
Dear Mr. Trimper:
Congratulations! Robert Leslie, an attorney with the New York Department of Environmental Conservation has informed me "Terminix has met all of its obligations under the Order." (I had sent an e-mail letter to him and requested the current status of Consent Order R4-1977-97-05 and if the Consent Order has been met to the DEC's satisfaction.)
Based on my own experiences and experiences related to me by others, I believe you are one of very few people fortunate enough to actually get Terminix pay to clean up its mess and repair the damages they caused. I doubt you would have achieved this without the assistance of NY's DEC and their consent order with Terminix. It appears most of the state governments work in Terminix's best interests at the expense of consumers. Although it took some effort on my part to get a response from the New York DEC, it is a relief to know at least one state's regulatory agency is more concerned for its citizens than for protecting Terminix's interests.
Once again, congratulations!!!
Sincerely,
Carla M. Virga
http://www.syix.com/emu
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Ms. Virga,
Thank you for your recent E-mail. As your know, the Trimpers are represented by counsel in this matter. Any complaints advanced on the Trimper's behalf should be directed to the Department through counsel.
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Dear Mr. Leslie:
Excuse me? I didn't realize you would consider my pursuit to ascertain the truth of whether or not DEC’s Consent Order has been satisfied to be “advancing a complaint on the Trimper’s behalf.” I inquired into the status of the Consent Order the DEC has with Terminix, I contacted you at Daniel O'Connell’s suggestion, and you previously told me "please feel free to contact me again if you need further information."
I was quite satisfied with your response until I discovered from Mr. Trimper that the DEC's position differed from his. I am not interested in the course of action the Trimpers have, but in the discrepancy between his position and that of the DEC. How can Mr. Trimper's attorney address that? Isn't that something the DEC should be addressing???
Regards,
Carla Virga
http://www.syix.com/emu
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There was no further response from DEC’s attorney and never any communication from any of the other public officials who were cc’d. Remember, now, it was only in April that a Terminix employee pled guilty to falsifying records and was fined $1,000 -- the second Terminix employee in New York to do so. There was no mention of Terminix being fined for its employees’ falsification of records and no mention of restitution to the homeowners. Like I said before:
Whose interests is New York’s DEC protecting???
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