Oregon Environmental Council v. Kunzman

Civ. No. 82-504-RE (D. Or. May 4, 1982)

The court orders defendants to comply with insecticide spraying guidelines set forth in the work plan for the South Salem gypsy moth eradication program. It holds that Oregon's proposed work plan does not significantly deviate from the programmatic environmental impact statement (PEIS) prepared by the United States Department of Agriculture. In addition the court orders the use of buffer zones, balloon markers, and pretreatment overflights to insure that the insecticide is not directly applied to lakes, streams, and ponds. Due to the risks associated with human exposure to the insecticide, the court further orders defendants to send a supplemental cautionary notice to all residents living in the proposed treatment area prior to the spraying.

[Other decisions in this case are reported at 12 ELR 20766 and 20769 — Ed.]

Counsel are listed at 12 ELR 20766.

[12 ELR 20769]

Redden, J.:

The court has considered the State of Oregon's "Proposed Work Plan (1982) South Salem Gypsy Moth Eradication Program" (Work Plan); the State's notice to residents of the treatment area and the plaintiffs' objections to both. I find that the Work Plan does not significantly deviate from the Programmatic Environmental Impact Statement (PEIS).

The evidence established that there are six creeks within the proposed treatment area which are bodies of water identifiable on a topographical map scale 1/62,500 and, therefore, under the "Clarification of Gypsy Moth Final Environmental Impast Statement Procedures" (Clarification), must be avoided. The PEIS requires that the method of applying insecticide must conform with label specifications. PEIS at 16. The label of Sevin 4-Oil states: "Avoid direct application to lakes, streams and ponds." The PEIS states that "[i]nsecticides are not applied directly to streams, lakes, or ponds," PEIS at C-2, and that "buffer strips can minimize the possibility of carbary introduction into water bodies." PEIS at C-3, accord PEIS at 24, C-2. The PEIS requires that target areas be designated with some technique which will be highly visible from the air and that "[t]reatment exclusion areas will be observed by aerial applicators during pretreatment overflights of all areas." PEIS at 16.

The PEIS states that the alternative involving chemical insecticide treatment, which has been selected by the State, involves the development of safety plans which address "pesticide spills, exposure and poisoning." PEIS at 25.

The PEIS requires that persons living in the treatment area be notified by first class mail. PEIS at 14. The Clarification requires notification of residents of the treatment area ten days before the start of spraying. Clarification at 2. Counsel for plaintiffs stated that he was waiving the ten-day notice requirement. The Clarification also requires that the notice indicate "precautions to be taken." Id. In discussing the biological effects of carbaryl, the PEIS includes the following statement:

One can never conclude that risks from exposure to any chemical are zero, and it is only reasonable and prudent to suggest that women who may be pregnant should avoid any unnecessary exposure to carbaryl and other chemicals.

PEIS at 30, quoting letter written by Douglas Campt, Director of Registration Division, Environmental Protection Agency.

Counsel for the State informed the court that the State will use helicopters (as opposed to fixed wing aircraft), that excluded areas will be marked by balloons and if the aerial applicators cannot see the balloons, they will not spray.

IT IS ORDERED that the State of Oregon shall comply with its Work Plan.

IT IS FURTHER ORDERED that the State of Oregon, by the use of adequate buffer zones, balloon markers and pretreatment overflights, shall conduct the spraying of Sevin 4-Oil so that there will be no direct application to lakes, ponds and the six above-mentioned streams. The State shall develop safety plans which address pesticide spills, exposure and poisoning.

IT IS FURTHER ORDERED that the State of Oregon shall send a supplemental notice to all persons living in the proposed treatment area which shall contain the following information and may be in the following suggested form:

On [date] you received notice of the Gypsy Moth Aerial Spray Program in South Salem. That notice suggested some precautions to take in order to minimize exposure to the insecticide. Although we know of no adverse effects from the use of this insecticide in other gypsy moth programs throughout the nation, there is disagreement as to its effect on humans. Some of those effects are not fully known nor understood. Therefore, it is only reasonable for you to take steps to minimize exposure to the insecticide. Women who may be pregnant should be especially cautious and avoid exposure to or contact with the chemical. If you have any questions, please call the Plant Division, Oregon State Department of Agriculture, at either telephone number 378-3776 or 378-6458.

Dated this 4th day of May, 1982.