Oregon Environmental Council v. Kunzman

Civ. No. 82-504-RE (D. Or. April 29, 1982)

The court rules that a site-specific environmental impact statement (EIS) is not required under the National Environmental Policy Act (NEPA) prior to aerial broadcast spraying of insecticide to eradicate the gypsy moth in South Salem. Initially, the court holds that plaintiffs do not have a private right of action under the Federal Insecticide, Fungicide, and Rodenticide Act or to enforce Federal Aviation Administration (FAA) regulations. The court also concludes that plaintiffs cannot sue under 42 U.S.C. § 1983 for alleged violations of FAA regulations. Rejecting plaintiffs' contention that defendants must prepare a site-specific EIS, the court rules that the programmatic EIS prepared by the United States Department of Agriculture Cooperative Gypsy Moth Suppression and Regulatory Program was sufficient to satisfy the requirements of NEPA. The programmatic EIS adequately discussed the effects of the insecticide on human health and the environment and alternatives. In addition, the programmatic EIS is legally sufficient because there are no significant differences between the conditions or circumstances of the specific project and those addressed in the programmatic EIS. The court also rejects plaintiffs' contention that the programmatic EIS may not be used as the EIS for the South Salem project because comments were not solicited in the South Salem area before the preparation of the programmatic EIS. An otherwise valid program should not be invalidated because the problem had not developed in South Salem at the time that comments on the draft programmatic EIS were submitted.

Counsel for Plaintiffs
Larry N. Sokol, John E. Bonine
Jolles, Sokol & Bernstein
721 SW Oak St., Portland OR 97205
(503) 228-6474

Counsel for Defendants
Dave Frohnmayer, Attorney General; John R. McCulloch Jr., Luther L. Jensen
Dep't of Justice, 100 State Office Bldg., Salem OR 97310
(503) 378-6002

Charles H. Turner, U.S. Attorney; Thomas C. Lee
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101

[12 ELR 20767]

Redden, J.:

Plaintiffs in this action seek declaratory and injunctive relief prohibiting the aerial broadcast spraying of the insecticide carbaryl over 6,400 acres in South Salem, Oregon. Plaintiffs are the Oregon Environmental Council, Citizens for the Safe Control of the Gypsy Moth and two individual plaintiffs. Standing is not contested. The defendants are the State of Oregon, Department of Agriculture (the State); the United States Department of Agriculture, and their agents. The State, with the support and financial assistance of the United States Department of Agriculture Animal and Plant Health Inspection Service (APHIS), intends to spray the designated area for the purpose of eradicating an isolated infestation of the gypsy moth. Plaintiffs contends that the South Salem gypsy moth eradication program (Program), to the extent already developed, violates: (1) the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended by the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. §§ 136j(a)(2)(G) and (P); (2) regulations promulgated by the Federal Aviation Administration (FAA), 14 C.F.R. §§ 137.27, 139.39(2) and (3); and (3) the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq.

Trial was held to the court on April 22 and 23, 1982. This opinion shall constitute findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

I. FIFRA Claim

Plaintiffs contend that they have a bprivate right of action under FIFRA, as determined by an analysis using the criteria of Cort v. Ash, 422 U.S. 65 (1976). Alternatively, they contend that they can sue defendant Leonard Kunzman, Director of the State Department of Agriculture, under 42 U.S.C. § 1983 for alleged FIFRA violations by relying on the reasoning of Maine v. Thiboutot, 448 U.S. 1 (1980).

I conclude that the plaintiffs do not have a private right of action under FIFRA. I also conclude that plintiffs cannot sue Knuzman under 42 U.S.C. § 1983 for an alleged violation of FIFRA. I rely on the Cort analysis in In re "Agent Orange" Product Liability Litigation, 635 F.2d 987, 991-992, n.9 (2nd Cir. 1980).The legislative history shows that Congress considered and rejected amendments which would have authorized private suits. Id.; People for Environmental Progress v. Leisz, 373 F. Supp. 589 [4 ELR 20706] (C.D. Cal. 1984). I conclude that Congress intended to foreclose private suits to enforce FIFRA. See Middlesex Cty. Sewerage Auth. v. Nat. Sea Clammers, __ U.S. __, 101 S. Ct. 2615 [11 ELR 20684] (1981). The legislative history shows that Congress intended that the executive branch should have sole responsibility for enforcing the statute. 272 F. Supp. at 592.

II. FAA Claim

Plaintiffs contend that they have a private right of action to enforce the FAA regulations. I conclude that they do not. I rely on the reasoning of Rauch v. United Instruments, 548 F.2d 452 (3rd Cir. 1976) and Obenshain v. Halliday, 504 F. Supp. 946 (E.D. Va. 1980). I also conclude that plaintiffs cannot sue under 42 U.S.C. § 1983 for alleged violations of FAA regulations. Section 1983, and Maine v. Thiboutot, supra, interpreting the section, refer to rights secured by "laws," not be regulations. I decline to extend Maine v. Thiboutot.

III. NEPA

The United States Department of Agriculture Cooperative Gypsy Moth Suppression and Regulatory Program Prepared a Final Programmatic Environmental Impact Statement (PEIS), dated February 27, 1981. Federal Exhibit A. Plantififs argue that the PEIS is not legally sufficient to meet the requirements of NEPA. Plaintiffs argue that even if the PEIS is legally sufficient, it is not sufficient to support the Program proposed and that defendants have a duty to prepare a site specific environmental impact statement (EIS) for the Program. The defendants contend that NEPA does not govern the Program.

A.Whether NEPA Governs the Program

NEPA governs "Major Federal actions significantly affecting the quality of the human environment . . . ." 42 U.S.C. § 4332(2)(C). I find that the Program is such a major federal program and conclude that it is governed by NEPA. Federal action enabled the Program to occur. See Sierra Club v. Hodel, 544 F.2d 1036, 1044 [7 ELR 20008] (9th Cir. 1976). The PEIS studied the alternative approaches for control and suppression of the gypsy moth. Federal employees worked with the State to develop the Program. The Federal Government intends to provide a significant portation of the funding for the Program. The State's proposed work plan, State's Exhibit 9, provides that the applicators and insecticide will "be contracted by USDA-APHIS." I conclude that this is a major program, as defined by 40 C.F.R. §§ 1508.18 and 1508.27.

B. Legal Sufficiency of PEIS as an EIS

Plaintiffs contend that the PEIS does not satisfy the requirements of 42 U.S.C. § 4332(2)(C).They attack the PEIS for failure to discuss adequately: (1) the effects of carbaryl on human health, (2) the alternatives to the use of chemical insecticides to suppress the gypsy moth and (3) the relationship between local short-term uses of the environment and enhancement and maintenance of long-term productivity.

A reasonably "thorough discussion of the significant aspects of the probable environmental consequences" is what is required of an EIS. Trout Unlimited v. Morton 509 F.2d 1276, 1283 [5 ELR 20151] (9th Cir. 1974). "[D]isagreement among experts about environmental consequences" will not serve to invalidate an EIS. Life of the Land v. Brinegar, 485 F.2d 460, 472 [3 ELR 20811] (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974). I conclude that the PEIS adequately discussed the effect of carbaryl on human health and the environment. There is disagreement as to the harmful effect of carbaryl on humans and that some of the effects are not fully known or understood. The PEIS reports that there is evidence to suggest carbaryl may have teratogenic potential. PEIS at 30. The PEIS also reports that carbaryl poses a "potential but inconclusive health risk" through viral potentiation. PEIS at 31. The PEIS did contain a reasonably through discussion of the significant aspects of the effects of carbaryl and that is what is required.

NEPA requires that each EIS contain a detailed statement of alternatives to the proposed federal action. 42 U.S.C. § 4332(2)(C)(iii). I conclude that the alternatives were adequately discussed in the PEIS.

I also conclude that the relationship between the short-term and long-term effects was adequately presented by the PEIS. The discussion of the alternative methods of regulating and suppressing the gypsy moth was actually a discussion of the long- and short-term effects of the possible approaches.

C. Legal Sufficiency of the PEIS for the Program

Plaintiffs contend that even if the PEIS constitutes an adequate EIS, it does not survive scrutiny for use as an EIS for the Sourth Salem Program. Plaintiffs make two kinds of arguments here: (1) the Program is significantly different from the chemicaluse alternative described in the PEIS and therefore defendants have the duty to prepare a site specific EIS for the Program and (2) Oregonians and residents of South Salem, as persons interested in and affected by the PEIS, were not provided the opportunity to comment on the draft PEIS, as required by 40 C.F.R. § 1503.1(a)(4).

1. Comparison of Program with PEIS Chemical Alternative

A programmatic EIS is a legally sufficient EIS for a specific project if there are no significant differences between the conditions [12 ELR 20768] or circumstances of the specific project and the program as a whole. Ventling v. Bergland, 479 F. Supp. 174 (D.S.D. 1979); see Environmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368, 1377 [10 ELR 20252] (10th Cir. 1980) (citing cases).

Plaintiffs contend that the Program, to the extent already developed, significantly differs from the chemical alternative described in the PEIS in several ways. I will address their major arguments.

Plaintiffs contend that the PEIS was developed for the northeastern states of the United States and therefore is inapplicable to Oregon. I find otherwise. The PEIS primarily addresses the areas of general infestation in the northeastern United States, but it also was designed to address isolated areas of defined infestation, such as the infestaion in South Salem. PEIS at i.

Plaintiffs contend that the PEIS chemical-use alternative does not provide for aerial broadcast spraying of carbaryl over residential communities. It is true that the PEIS appears to make conflicting statements. A close reading of the PEIS, however, indicates that aerial broadcast spraying over residential areas is not precluded. The section entitled "Performance Standards" of the "Insecticide Application Procedures" provides:

Individual target areas will be small, usually limited in size to forested residential communities, recreational sites, selected high-value stands, or well-defined isolated infestations.

PEIS at 16. It is undisputed that the South Salem infestation is a "well-defined isolated infestation" and therefore is within the target areas of the PEIS program. The target areas described above include residential communities. In response to a comment, the PEIS states that "[a] residential community with trees can be considered the same as a forested community" and "[a] residential community developed in a forested area can be considered a forested community." PEIS at C-8. The PEIS is replete with references to the fact that residents of a sprayed area may minimize their exposure to chemical insecticide by remaining inside during the spraying. I find, from examining the PEIS as a whole, that it contemplates the spraying of chemical insecticides over residential areas.

Plaintiffs contend that the PEIS permits residents to protest treatment of their property and enables them to opt-out and prevent treatment of their residential properties. Again, the PEIS appears to make conficting statements, but I find that the PEIS permits, but does not require, an opt-out provision. The PEIS states:

The following guidelines are in general followed by co-operating State agencies to encourage public participation and awareness . . . .

. . . Residents can object to the program and prevent treatment of their property.

PEIS at 14. I do not construe this portion of the PEIS to require an opt-out feature. It is true that the PEIS repeatedly refers to such an opt-out procedure, but such references do not make it obligatory. The Clarification of Gypsy Moth Final Environmental Impact Statement Operating Procedures reads at page 2:

Where the program objective is pest management, properties whose residents object to being treated will be omitted from the treatment area. Treatment of all properties is necessary where eradication is the objective. (Emphasis added.)

The Program is an eradication and not a management program. I conclude that the absence of an opt-out provision from the Program does not constitute a significant deviation from the PEIS.

Plaintiffs content that there was insufficient public involvement in the Program. The PEIS encourages public involvement in developing the gypsy moth suppression and regulation programs, including advertised public meetings to discuss the gypsy moth problem. PEIS at 14. Notice of the proposed gypsy moth suppression program was published in the Federal Register. The state held five informational meetings to present the state's reasons for the proposed Program. A two-day public hearing was held at which interested persons were able to testify. Notice of the public hearing was published in newspapers of general circulation and delivered to residents within the treatment area. Although I received testimony and affidavits showing that some felt that the defendants' representatives at the information meetings and public hearing were unsympathetic and unreceptive to the views of those opposed to the Program, I do not conclude that such attitudes would render the public involvement insufficient. I conclude that the public involvement in the Program does not constitute a significant deviation from the PEIS.

In summary, I conclude that the Program to the extent developed, does not deviate significantly from the PEIS and therefore does not require, as a condition precedent, a site specific EIS. I note, however, that the Program has not yet been developed with great detail as to operating procedures. I also note that defendants, by relying on the PEIS, are required to develop the Program in a way which does not significantly deviate from the PEIS in order to comply with NEPA. The PEIS sets out, in detail, requirements for meteorological conditions, equipment specifications, notice and pre-treatment preparation. The PEIS requires marking of excluded areas, and avoidance of crops for which the aerially broadcast insecticide is not registered. The PEIS requires that contingency plans for spills, exposure and poisoning be developed.

The label of the Sevin 4-Oil (the Union Carbide form of carbaryl in a petroleum based vehicle which the Program has designated as the insecticide to be applied) has been an issue in this case. The PEIS requires that "the method for application must conform with label specifications." PEIS at 16. I interpret the label to require what the plain words of the label state: "Avoid direct application to lakes, streams and ponds . . . ." The parties disputed the meaning and relevance of these words on the label. I interpret these words to mean that the applicatory of the Sevin 4-Oil is required to avoid direct application to lakes, streams and ponds. The PEIS states:

Insecticides are not applied directly to streams, lakes or ponds. The use of buffer strips can minimize the introduction of carbaryl into water bodies where trout may occur.

PEIS at C-2. To avoid a significant deviation from the PEIS, the Program must avoid direct application of the carbaryl to streams, ponds and lakes.

2. Public Comment on PEIS

Plaintiffs contend that the PEIS may not be used as an EIS for the South Salem Project because the comments of Oregonians were not solicited before the preparation of the PEIS, in violation of 40 C.F.R. § 1503.1(a)(4). That regulation requires that after preparing a draft EIS and before preparing a final EIS, the federal agency shall request comments on the draft EIS from "persons or organizations who may be interested or affected." There was no evidence that the comments of persons or organizations in South Salem were solicited. However, it is undisputed that the completion of the draft PEIS preceded the decision that gypsy moth regulation was necessary in South Salem. Therefore, at the time the draft PEIS wascirculated and comments requested, the persons and organizations of South Salem were not "interested or affected." It was only later that they fell within the subsection on which the plaintiffs rely. As stated above, public involvement was sufficient that the Program does not constitute a significant deviation from the final PEIS.I decline to rule that an otherwise valid program should be invalidated because the problem had not yet developed in South Salem at the time that comments on the draft PEIS were solicited.

Because I rule that the PEIS is a valid and sufficient EIS, I conclude that a site specific EIS was not required and an environmental assessment was not required under 40 C.F.R. § 1501.3. I reject the balance of the plaintiffs' arguments. The court shall retain continuing jurisdiction to review the State's final operating plan.

Dated this 29th day of April, 1982.